Abstract

Excerpted From: Pedro Gerson, The Federal Government's Role as the Warden of Immigrants, 103 Nebraska Law Review 45 (2024) (91 Footnotes) (Full Document)

This year (2024) marks the 100th anniversary of the U.S. Border Patrol. This law enforcement agency was born out of the 1924 Immigration Act. Since then, the southern border has been a place of constant contention because of the major battles regarding who can and cannot immigrate into the United States. These battles can be literal in the sense of law enforcement versus people who try to elude them, or they can be metaphoric in the sense that it is the place where the country plays out its collective imagination about what immigration law and policy is and should be. The border has seen Customs and Border Protection grow to become the largest federal law enforcement agency, countless deaths of people trying to avoid that agency, decades of racial profiling and abuse of migrants trying to enter, the changing faces of people looking for protection from persecution or disaster at home, and major shifts in who gets in and who does not - from no quotas for Mexicans to the construction of a wall to prevent them from coming in.

Today the southern border is “in crisis.” As the influx of migrants to the United States reaches historic highs, political tides have shifted towards restrictionism, with a view about deterrence policies gaining ground in both political parties. This has created a situation in which the federal government is accustomed to increasing its confinement of immigrants, whether it be through immigration detention or federal jail. In this essay, I argue that, unless this trend is reversed, the federal government's role as a warden of immigrants will deepen.

To fully appreciate the extent to which the federal government has become a warden of immigrants we must re-conceptualize how we think about the federal architecture and infrastructure of incarceration. In sum, rather than thinking about incarceration and detention separately, we must think of it as one large system of confinement. This does not mean ignoring the very large differences between the immigration detention apparatus and federal incarceration, but rather that federal incarceration includes more than criminal law.

I was honored to be invited to the Nebraska Law Review Symposium on Advancing Justice for the Federally Incarcerated to talk about immigration detention. I must admit that my presence there probably seemed rather odd. After all, my main area of interest is immigration detention, not incarceration. Therefore, my research does not focus on many of the themes that were discussed at the Symposium. However, my presence there told me that the students at Nebraska think about federal incarceration more holistically than most scholars or public officials do. The problem is that the system itself is set up so that it is hard to even discuss immigration detention and federal incarceration together, which forces us to think about them separately.

My contention here is that to truly understand the system of federal incarceration, we must obliterate the civil/criminal distinction. We need to make room for a more capacious understanding of imprisonment, one that looks not at inmates or detainees but at people confined. And so, rather than talking about a system of federal incarceration, we need to study a system of federal confinement. Within that system, there are differences, of course. Whether one is confined by the Bureau of Prisons in a facility owned and managed by it, or by Immigration and Customs Enforcement in a privately owned and operated facility will have different ramifications for the lives and cases of those confined. And so, specialists are required to understand the intricacies of confinement. However, if we want to see what the federal government is doing in terms of caging people, we must start speaking in the language of confinement.

Being clear about the federal government's system of confinement allows us to see how the government is using imprisonment as a tool of migration control. As I discuss infra, talking about confinement as a whole reveals that immigration is the second likeliest reason why someone is in federal custody. In other words, confinement shows just how much the federal government is already a warden of migrants. Moreover, the confinement framework allows us to think about how the use of this tool can grow. In sum, as pressures for more draconian anti-immigrant measures deepen, the federal government will cage, whether in federal prisons or detention centers, even more immigrants than it does now. This can even happen (and is likelier to happen) in a context in which criminal legal reforms empty federal prisons. However, if we do not think in terms of confinement as a whole, we are at risk of missing this change occurring in front of our eyes (just like we have missed the growing role of immigration as a driver of people in federal custody).

In Part I, I explain the current trends of migration at the border and why U.S. law and policy are not a driving factor of it. This is necessary context to understand the federal government's deepening role as a warden of immigrants. In Part II, I explore how and why immigration detention and the prosecution of immigration-related crimes have risen in tandem. I then go on to describe them as a whole in the federal system of confinement to show how much immigration has come to dominate the federal custody docket. Finally, Part III takes the trends discussed in Parts I and II to anticipate how the federal government could end up with even more immigrants confined in its jails and prisons than it currently has.

[. . .]

A future in which the federal government is devoting so much attention and so many resources to its role as a warden of immigrants is not a fait accompli. On the contrary, my goal here is to show that such a future is completely irrational regardless of the immigration policy goals of a particular administration. As I have discussed, despite the fact that immigration related confinement has ballooned as a centerpiece of federal immigration policies, immigration flows have not stopped or even budged. Moreover, the cost of a policy of deterrence is that it pushes migrants to even more dangerous routes, exposing them to very dangerous natural conditions or being victimized by the smugglers they are forced to hire. In other words, ensuring that the federal government does not deepen its role as a warden of immigrants is not only about saving money, more importantly, it is about saving lives.

Assistant Professor of Instruction, The University of Chicago.