The myth of “civilizing” civil immigration detention

Since 2009, the Obama Administration has considered a number of reforms to make civil immigration detention more “civil” and acceptable to the public, including the release of new guidelines for ICE facilities in 2011. A recent article by Mark Noferi of the American Immigration Council analyzes the current and proposed civil detention system, and reveals a divide between mere improvement of conditions within facilities and true reform. Noferi reaches a bold, yet unsurprising, conclusion: “To be ‘truly civil,’ a system of civil detention should detain less.”

Less restrictive conditions within the walls of immigrant detention centers have been hailed by some as a model to follow for the future of civil detention. When the facility in Karnes, Texas first opened in 2012 as a men’s detention center under ICE’s new civil detention guidelines, the LA Times called it a “pleasant surprise for illegal immigrants and others awaiting possible deportation.” Before the facility was opened for family detention in 2014, it was given a further face-lift with murals, stuffed animals, playgrounds, mini-fridges, a hair salon, and a colorful exterior with a sign euphemistically reading “Karnes County Residential Center.” These changes have led the U.S. Commission on International Religious Freedom to call Karnes an example of “best practices” for detaining asylum seekers. What these comments ignore is the underlying reality that there can be no “pleasant surprise” for immigrants when they are torn from their families by detention and deportation, or “best practices” in detaining people who ought to be free.

Additionally, many of the touted benefits of new civil detention centers are mere window dressing. The same problems that have plagued previous facilities persist at Karnes, including as sexual assault allegations, insufficient food for children and infants, lack of proper medical care, and threats to remove children from their parents. These exploitative conditions are unlikely to disappear while operated by private prison corporations (such as GEO, which runs Karnes) that have a well-documented history of prioritizing profit over the welfare of those detained in their facilities. Even more inescapable are the power dynamics that prompt guards to exploit immigrant individuals — most often women — in their charge. Even if these issues could be eradicated, mental health professionals have found that “indefinite detention may cause greater psychological harm than criminal incarceration, even with less restrictive conditions.” This brings us back to another conclusion from AIC’s recent article:  “Removing the bars and barbed wire does not make detention ‘civil.’”

Although improvements in conditions of detention and due process protections are often perceived as ways to make immigration detention less severe than criminal incarceration, Noferi observes that “[L]ess restrictive conditions inside the walls do not meaningfully distinguish civil detention from lower-security criminal incarceration.” In fact, the provision of increased procedural protections for immigrants in civil detention, while a goal of many advocacy groups, brings immigration detention to even more closely resemble criminal justice systems. While these protections would certainly be beneficial within the confines the current immigrant detention system, the AIC article notes that providing “counsel might expressively affirm a perception of immigrant criminality in the public eye.”

This is where our dual struggle comes to light — while we fight for improvements to immigrants’ conditions within detention, we must take care not to validate the system of detention and the criminalization of immigrant identity. Even if, in an idealized future, each detained immigrant were provided counsel and abuse could be eliminated within detention facilities, the system would become, in the words of Noferi, “fair but not just.” Justice is not an absence of scandals, but rather the valuation of immigrant lives and preservation of freedom. As the U.S. Supreme Court has stated, “in our society, liberty is the norm, and detention prior to [criminal] trial or without [criminal] trial is the carefully limited exception.” There is nothing carefully limited about the arbitrary bed quota of 34,000 immigrants ICE must detain at any given time, or about locking up non-violent, contributing members of society. Ultimately, the only pathway to a “civil” civil immigration detention system is its demise.