Review of Immigration Detention: The Migration of a Policy and its Human Impact (Amy Nethery and Stephanie J. Silverman eds. 2015)
As I write, there are toddlers surrounded by barbed wire in isolated parts of Texas, there are migrants who have risked everything in search of safety in Australia turned back by military vessels and sent to rancid camps offshore, and there are North Africans, Syrians, and others caught in Europe’s latest identity crisis. All are experiencing immigration detention.
This was not always the case. In the middle of the twentieth century, the United States all but abolished
the practice of confining people for nothing more than suspected or confirmed immigration law violations. Elsewhere immigration detention was largely unknown. Immigration Detention: The Migration of a Policy and its Human Impact (2015), edited by Amy Nethery and Stephanie J. Silverman, maps immigration detention’s many contours. Covering fifteen national contexts across sixteen separate contributions (the United States receives two treatments), the volume provides a remarkably insightful view into today’s immigration law enforcement tactic of choice. Precisely because the book covers so many countries, its greatest strength is in identifying the variety of shapes that immigration detention takes while simultaneously illustrating just how little creativity policymakers often display. Advocates, scholars, and policymakers would do well to add this volume to their reading lists and keep nearby as they contemplate immigration detention’s next steps.
It is difficult to miss the book’s central theme: immigration detention has blossomed to the point of pervasiveness. In several countries, it has come to dominate—define even—contemporary immigration policing. None more so than in the United States. For each of the last several years, the Immigration and Customs Enforcement agency, a division of the Department of Homeland Security, has confined over 400,000 people who are waiting to learn whether they will be allowed to remain in the United States. Separately, the federal government units responsible for detaining people facing criminal prosecution or who have been sentenced to imprisonment after conviction each detain tens of thousands of people on charges of violating criminal immigration law provisions. Combined, over half a million people are locked up every year in the United States for migration-related activity.
By collecting, to my knowledge for the first time, analyses about immigration detention from a variety of national contexts, Immigration Detention offers advocates, scholars, and policymakers several important insights. None more so than detention’s relationship to reform. In their opening chapter, Silverman and Nethery make the provocative suggestion that legal reform may in fact have entrenched detention. “The approach of international law to immigration detention has been to try to curb its excesses,” they write (p. 9). But by doing so “[i]nternational and human rights laws…shape immigration detention policy by making it more formal” (p. 9). Procedures derived from legal reform foster uniformity, predictability, and perhaps even transparency. What they do not do, though, is limit detention’s use. On the contrary, unless paired with a push to reduce detention, reform efforts that result in more detention capacity are almost certain to result in more detention (p. 8). France offers an important lesson in this regard. There, Nicolas Fischer explains, migrants’ rights advocates pushed for greater judicial involvement in detention. The courts obliged, but in the process developed “a compelling legal framework for migrant repression” that includes detention (p. 32). Well-meaning reformers, as Michael Flynn wrote in an important paper, may inadvertently “provide[] ‘normative cover’ for detention practices, shielding the state from uncomfortable questions regarding the right to liberty and helping entrench immigration detention into the institutional framework of the nation-state.” This is an important consideration for everyone concerned about states’ use of immigration detention that will ring familiar to scholars of criminal incarceration in the United States, but that infrequently makes its way into the conversation about civil immigration detention.
For all its strengths, Immigration Detention fails to tackle the all-important question of why a practice that, as Silverman and Nethery write in their introduction, “[b]efore the turn of the century…was used by few states” (p. 1) has become so prevalent. Individual contributors occasionally touch on the topic, as when Magdalena Kmak and Aleksi Seilonen explain that, in Finland, “security interests had to be balanced with the rights of non-citizens” beginning in 1975 (p. 40) or when Roni Amit writes that South African policymakers “point to an influx of irregular migrants perceived to be responsible for many of the country’s socio-economic ills” (p. 144). Neither fully engages with the moral panic that this language alludes to and certainly neither provides a satisfactory explanation of the source of that moral panic. Several of the contributions could have taken a cue from Yonatan Berman and Reuven Ziegler who don’t simply note that Israeli law “defines African asylum seekers as ‘infiltrators’” (p. 155). They go on to offer an important if cursory explanation for this formal legal demonization: This discursive othering facilitates Israel’s treatment of migrants as dangerous others who must be treated as security threats. In effect, Israeli legislators took a harsh stance toward migrants as a means of messaging domestic audiences (p. 6). Like their counterparts in other parts of the world, they seem to be suggesting—against the bulk of the evidence (p. 5)—that detention deters unwanted migrants from coming.
Today, immigration detention appears to be on autopilot. It has become such a prevalent component of immigration policing in the United States and, as this book illustrates, indeed throughout much of the world, that it is difficult to imagine how or if we might scale back. Several chapters point to promising limitations that have resulted from hard fought public pressure, protracted litigation, or simple hard-nosed pressure from wealthier nations—as when the European Union shapes Turkish practices (pp. 60-61) or when Australia pays Indonesia to develop its detention regime (p. 115). For all their value, none of these reforms seem to be pushing detention back to its historical norm as the exception rather than the rule.
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