The recent outcry over family separation in the US turned the country’s attention to the southern border, but those children, mothers and fathers are just part of the larger story of immigrants detained by authorities in America. On any given day in the US, roughly 40,000 to 50,000 immigrants live under the custody of Immigration Control and Enforcement (ICE). Some of them had tried to cross the border without legal documents; others had lawfully sought asylum at a port of entry. Even if they haven’t been charged with a crime, they’re feeling the weight of the system.

As US policy makers debate immigration and border security, scholars are working to understand how the nation got here and what it all means, for the country and for the people in confinement.

“We’re holding individuals in situations that are no different and sometimes much worse than what criminal inmates face,” says Emily Ryo, a legal scholar at the University of Southern California in Los Angeles. Ryo detailed the causes and consequences of US immigrant detention in 2019 in the Annual Review of Law and Social Science.

The line between immigration law and criminal law has steadily eroded over the past few decades, Ryo says. The overlap has become so complete that many observers now recognize a new hybrid segment of the legal system: “crimmigration.”

“Tens of thousands of people are held for three to six months or longer, sometimes years at a time,” says Caitlin Patler, a sociologist at the University of California, Davis. “The size and scope of the detention program and the way it has grown since the 1970s is staggering, but we know very little about the impact on immigrants.”

The United States detained 510,854 immigrants in fiscal year 2019. That’s an increase of nearly 30 percent over the previous year, and an all-time high. Of all the nations that receive immigrants, the US detains far more than any other country. By comparison, the UK detained just under 30,000 immigrants in fiscal year 2017, less than 10 percent of US figures for the same period. “We’re a detention nation,” Ryo says. “It’s on the rise, and there’s no end in sight.”

Graph shows the number of immigrants apprehended by US Border Patrol declining over the past decades from 1.35 million in 2001 to less than 550,000 in 2017 (with it rising again in 2018-2019); while those detained has risen from more than 150,000 in 2001 to roughly 350,000 in 2017.
Historically, the number of immigrants detained in a given year hasn’t been strongly linked to the number who have been apprehended in the US, but both numbers have soared in the last two years.

A larger trend

Anti-drug laws in the 1980s and anti-terrorism laws in the 1990s gave officials more power to apprehend and detain immigrants, but the root causes of crimmigration go beyond any specific law or policy, says Cecilia Menjívar, a sociologist at the University of California, Los Angeles. “It’s part of a much bigger trend toward criminalizing certain populations,” she says. “It’s easy to blame immigrants for anything that goes wrong.”

The crimmigration approach is now built into the system, Menjívar says. In 2009, ICE set a daily minimum quota of 34,000 immigrant detainees, partly to honor contracts with private corporations, Menjívar reported in a 2018 paper in Sociology Compass. Sixty-five percent of immigrant detainees are held in private, for-profit facilities, 25 percent are held in local jails, and the rest are in federal detention facilities.

ICE says on its website that all immigrant detainees “reside in safe, secure and humane environments and under appropriate conditions of confinement.” In response to a request from Knowable Magazine for comment, ICE spokesman Bryan Cox said in an email that “illegally entering the US is a federal crime and such individuals are also subject to administrative detention and removal in accordance with federal law.” ICE, he added, is mandated to enforce federal laws as passed by Congress.

Given the size and scope of the detention infrastructure — not to mention shifting attitudes — Menjívar believes that real change is unlikely. “Regardless of who is in charge, the trend continues to more criminalization. I tell my students this is the most non-partisan or bipartisan issue we have.”

That bipartisanship comes at a price. “We’re spending $8 million a day — at an average daily cost of more than $200 per immigrant,” Ryo says. Researchers are now trying to gauge the other costs. “Human suffering is hard to measure, but it’s likely to be vast by all accounts,” she says.

In 2013 and 2014, Ryo conducted in-depth interviews with 565 adult detainees at four facilities in California. Of those who had previously served a criminal sentence, nearly half reported that immigration detention was worse than incarceration, and 13 percent said they were about the same. One detainee said that “immigration is worse because we are in constant lockdown and there is nowhere to go or to talk to about the conditions here.” Another said: “There are more rules to follow in detention, and I feel like I had more rights as a prisoner than when I was a detainee.”

Detention facilities for immigrants have adopted some of the same methods used in high-security prisons. Using a Freedom of Information Act request, Patler and colleagues found nearly 1,200 instances of immigrants placed in solitary confinement in six California facilities between 2013 and 2016. According to ICE, 57 percent of those immigrants had a mental illness.

Patler contends that ICE is using solitary confinement as a way to manage and control people who are mentally ill, widely considered a counterproductive practice. “We know from decades of research that it can be detrimental to people’s health in as early as a few days,” she says. Next, she plans to look at the use of solitary confinement at detention sites all over the country.

Bar chart compares the $1.3 billion allotted in 2015 to the $2.8 billion in 2019.

The Department of Homeland Security’s budget for housing immigrant detainees has more than doubled since 2015.

Injustice and uncertainty

Unlike prisoners, detainees generally have little idea how long they can expect to be detained, Ryo says. “Indefinite detentions are extremely difficult to bear psychologically,” she adds. Also, immigrant detainees lack many of the protections afforded to criminal prisoners, including a right to government-appointed counsel.

Ryo notes that immigrant detainees are in theory able to hire their own attorneys, but few have the money or opportunity to find representation. ICE spokesman Cox says that the agency does provide detainees with a list of attorneys who are willing to work pro bono. Also, he says, detainees have access to a law library.

In practice, Ryo says, many immigrants end up representing themselves in legal proceedings. “It’s much harder to find an attorney once you are in detention,” she says. “It’s also difficult to get evidence and documents that you need.”

And there’s a larger issue at play. “Our entire legal system is built on the premise of providing people a fair legal process,” Ryo says. But Ryo fears that the way immigrants are currently detained puts that idea very much at risk.

Immigrant detainees often feel an especially deep sense of injustice, which only adds to their stress, Menjívar says. Detention and deportation can also carry a stigma, she says, that may follow immigrants back to their home countries.

Multiple stressors put immigrant detainees at severe risk for mental health problems, Ryo says. A 2018 review of 26 studies looking at detainees held in the US and seven other nations found that those in custody were at high risk of depression, anxiety, post-traumatic stress disorder and personality disorders. In one study, published in the Canadian Journal of Psychiatry in 2013, detained immigrants seeking asylum to Canada were about twice as likely as asylum seekers who weren’t detained to show signs of PTSD. They were also about 50 percent more likely be clinically depressed. High rates of PTSD were also documented in a 2009 study of 67 detained asylum seekers in the UK.

Debate over deterrence

Just as lengthy jail sentences are thought to prevent crime, aggressive prosecution and detention at the border are often touted as powerful deterrents to illegal immigration. The Obama administration conducted a campaign in Central America in 2014 warning potential migrants that they would be apprehended and deported if they attempted to unlawfully enter the US. In October 2018, President Donald Trump said that the “zero tolerance” policy, which by that time reportedly separated some 2,600 children from their parents, had kept other families from making the trip.

Pie chart breaks down type of facilities used to detain immigrants. 65% are privately owned or managed; 25% are local public jails; 10% are federal facilities.
Private facilities and public jails play a major role in immigrant detention.

Despite such claims, there’s scant evidence that the deterrence actually works, says Jonathan Hiskey, a political scientist at Vanderbilt University in Nashville, Tennessee. In 2018, Hiskey and colleagues published a study in Latin America Research Review suggesting that the threat of detention in the US has almost no bearing on the decisions of potential immigrants in Guatemala, Honduras and El Salvador.

Instead, he says, immigrants are far more motivated by what’s going on locally, especially crime and threats to their safety. That fear, he says, seems to be most powerful for families with children. “If [you’re migrating] for purely economic reasons, the prospect of detention for an extended period of time would have some deterrent impact,” he says. But “if you’re afraid your teenage daughter will be raped by a gang member next week, I don’t think detention is going to change that decision calculus.”

Changing face of immigration

Any adjustment in detention policy would have to take into account the changing face of the typical US immigrant, Hiskey says. “The profile of a migrant arriving at the border has changed from that young Mexican male to a family from Honduras,” he says.

The treatment of families and children in immigrant detention has received much attention from the media, the general public and child welfare experts. In 2018, the American Academy of Pediatrics came out strongly against family detention, noting that even short-term detention and separation from parents can “cause psychological trauma and long-term mental health risks” in children.

But Ryo says the problems of detention go far beyond the family-separation issue, and any attempt at reform would have to consider the impacts on all types of detainees, from single adults to family units. The stakes, she says, reach outside the walls of the detention facilities. Detainees often support families and communities on one side of the border or another, she says. “Detainees are not disembodied individuals,” she says. “They are deeply connected to the fabric of society.”

Ryo believes that the US could take a major step forward by offering legal services for those charged with immigration violations and providing alternatives to detention, such as supervised release. “We ought to be a leader in the world,” she says.