In The Shadow of Liberty makes several interesting observations about the way the US immigrant detention developed. First, Minian points to the legal fiction used to determine whether immigrants “entered” the United States. Immigration law once distinguished between deportable and excludable immigrants: immigrants were deportable if found in the US interior and excludable if they arrived by ship, plane, or vessel. The law indulged in the fiction that excludable immigrants had not “entered” the country—a significant distinction because deportable immigrants were accorded due process rights while excludable immigrants were not, thus allowing excludable immigrants to be held indefinitely until entry could be decided. Although immigration law no longer applies these categories, the notion of limited rights at or near the border, as well as in places like Guantanamo Bay, persists today. Indeed, the concept gave the United States license to torture perceived “enemy combatants” after 9/11.
Second, Minian notes the muddied borderline between immigration detention and criminal incarceration. While some politicians might argue otherwise, asylum seekers who arrive at the border without legal status have not committed a crime—US asylum law expressly permits asylum seekers without status to apply for relief. Nevertheless, asylum seekers arriving at the border are regularly detained and housed alongside convicted felons. Their only distinguishing feature is the color of their jumpsuits.
Such imprisonment is unconscionable when applied to asylum seekers who have fled persecution. They often exit their countries due to urgent circumstances following traumatic events. Such was the case with Fernando. He was still grieving the loss of his son when he was placed behind bars.
Add to the trauma precipitating an asylum seeker’s departure the exhaustion after a treacherous journey, one likely filled with hardships. When immigrants arrive, they expect and hope for safety and welcome. Instead, they are often met with incarceration, exacerbating the suffering they have already endured. It is not surprising that some immigrants choose to abandon their cases and self-deport; in some cases, they take their lives rather than face prolonged imprisonment.
Minian vividly shows, however, that immigrant detainees aren’t the only ones scarred by the system. The children of detained immigrants also suffer irreparable harms. Gerardo and Julia’s story is a case in point. The US government incarcerated them for possession of marijuana belonging to a roommate and placed their young children in foster care. The family was separated for years. Despite the parents’ efforts to reunite upon release, they never regained cohesion as a family. Tragically, the young children left behind ultimately entered the criminal justice system.