Entry fiction

Hello hello,

Hope you’re all hanging in there.

In this edition, I’m going to tackle the origins of immigrant detention in the United States.

Lawyers and academics I have spoken to in the course of my reporting often describe the bewildering and opaque process through which jails, prisons, and federal detention centers fill up with immigrants as “kafkaesque.” 

But immigrants often have simpler, sharper descriptors. One Indian man I spoke to last year compared his yearlong experience at a facility in New Mexico as, simply, “hell.”

The immigrant detention system in the United States is a vast and sprawling machinery that involves multiple federal agencies, local and state governments, and private prison companies. (See: this Twitter thread explaining the role different agencies play if you’re not already familiar.)

When immigrant enforcement agencies take people into custody, it is civil detention, meaning the detainees aren’t being locked up because a court decided they committed a crime or because they are a threat to public safety. Immigrant detention is not supposed to be punitive, but it’s detention, so it inherently is. (I’ll save for another day the broader discussion about the ethics of locking up people convicted of crimes.) 

Last year, around 55,000 immigrants were held in detention by Immigration and Customs Enforcement — the agency that detains and deports immigrants from the interior United States. Before the pandemic (and after a slew of policies restricting the entry of migrants seeking asylum), that total came down to 35,000. Today, 22,000 people still remain in the agency’s custody, without much control over their own health and safety during a pandemic. 

So how did this unwieldy system come to be? 

The reading:

Migrating to Prison: America’s Obsession with Locking Up Immigrants by César Cuauhtémoc García Hernández

The gist: 

In 2016, I interviewed García Hernández, a professor of law at the University of Denver, shortly after meeting him at a reporting conference. The resulting Q&A is a good primer on the concept of “crimmigration” — the conflation of the U.S. immigration enforcement and criminal justice systems over the last few decades. It gives a sense of how the current system that incentivizes the detention of immigrants was built up under both Democratic and Republican administrations.

But García Hernández’s book, Migrating to Prisons, pulls the curtain further back and explains how detention is based on a flawed idea about “good” versus the “bad” immigrants. It also delves into details about how profit for some drives a system that causes such pain to so many others. 

García Hernández writes in the introduction: 

Despite the common refrain that immigration law is “broken,” immigration imprisonment is a sign that the United States immigration policy is working exactly as designed. The system hasn’t malfunctioned. It was intended to punish, stigmatize, and marginalize — all for political and financial gain. 

Highlighted highlights: 

One of the most fascinating chapters for me was the first one, which goes into history that I do not often have to engage with in my day-to-day reporting.

So, let’s start at the turn of the 20th Century: Congress has just passed legislation restricting immigration. The most well-known is perhaps the Chinese Exclusion Act of 1882, but other adjustments to law at the time also create nebulous grounds for exclusion of poor and non-white immigrants. 

After Congress passes these laws disqualifying immigrants, the officials implementing them realize they have a problem: Once migrants step onto U.S. soil, they have already physically entered the country, so at what point — and where — do U.S. authorities decide who gets to come into the United States and who doesn’t?

García Hernández explains their preliminary solution to this conundrum: 

Intent on vetting people arriving on steamships, government officials forced transoceanic companies to keep passengers on board until they’d decided whether a person was fit to enter the country. Anything else would allow migrants to enter before government officials had decided if they should be kept out … 

With the federal government’s demand that ships keep passengers on board, immigration imprisonment had begun, and it started in the hands of private corporations. 

At first, these ship companies are not thrilled about this. Keeping migrants housed comes with costs, naturally, including the opportunity cost of keeping the vessel grounded. But then: 

Soon the companies and the government agreed on an alternative: the companies could provide on-shore housing nearby. Steamship companies were obviously happy. They could now quickly offload passengers and cargo and send the ship back to sea.

But wait, doesn’t this just take them back to square one? The migrants step onto U.S. soil before officials have made a decision about whether they can or cannot enter the United States. 

Enter: Entry fiction. 

Here’s García Hernández (with emphasis added by me):

In 1891, Congress adopted a legal concept that people could enter the country physically without entering the country legally. This twist of logic, known as the “entry fiction,” meant that the steamship passengers could be allowed off the boat without benefiting from the higher hurdle that government officials have to climb to deport someone rather than exclude them. 

By creating this concept, the United States is able to draw arbitrary lines in the sand that produce different sets of rights and circumstances: it allows for the creation of one of the first (of arguably many) legal no-man’s lands.

Today, the border is wherever officials say it is — just beyond the shipping dock, in the middle of a river, at the edge of the Great Lakes, or in the Dominican Republic

In other words: 

Anyway, here’s how García Hernández describes the impact of this doctrine with respect to immigrant detention: 

Thanks to the entry fiction, the immigration detention center became an in-between space in law. It was neither outside nor inside the United States. Whether in California or New York, there was never doubt that on-shore detention sites were physically within the territorial boundaries of the United States.

The entry fiction is no doubt a quirky legal doctrine: a person can be inside the United States as a matter of geography and outside it as a matter of law. But it also served to wedge open a broader space within the law that allowed early immigration detention centers to operate with minimal oversight and to blur traditional legal boundaries. 

In the following years, immigrants confined at Angel Island in San Francisco or Ellis Island in New York would complain of vermin, sewage, odors, and bad food. These complaints are all quite similar to the complaints coming out of detention facilities at the border and inside the United States today. Today’s detained immigrants also face egregious medical neglect, abuse, and other kinds of mistreatment. Government detention centers are opaque and lack sufficient oversight as is, but the large private facilities, which together contain over 70 percent of the entire detainee population, are even less transparent. 

García Hernández comments on the early echoes of the current system: 

While on a minuscule scale compared to today’s immigration prison practices, there are uncanny parallels. The migrants locked in these unsanitary, haphazard sheds technically had not been charged with a crime. They were just waiting to find out whether they could enter the United States legally as well as physically. But it sure looked and felt like prison.

Other readings: 

  • My friend Tina Vasquez did a Q&A with Karla Cornejo Villavicencio, the author of The Undocumented Americans, which is very worth checking out (along with all her other work). (Our Prisms)

  • The authors Viet Thanh Nguyen and Phuc Tran had a fascinating conversation about their Vietnamese background, recent work, and … tattoos. (Electric Literature

Oh, before I go, here’s a photo of my dog being coy; you’re welcome.

Stay safe out there!

Over and out.