The Use and Spread of Detention Policies as Tools of Immigration Control

On July 21, 2014, the Center for Migration Studies (CMS) hosted a dialogue examining the global expansion of immigration-related detention. The dialogue was moderated by CMS’s Executive Director Donald Kerwin and featured two panelists: Michael Flynn, Founder and Project Manager of the Global Detention Project, and Dora Schriro, Commissioner of the Department of Emergency Services and Public Protection with the State of Connecticut. Mr. Flynn and Ms. Schriro are among leading experts on immigration-related detention, defined as “the deprivation of liberty of non-citizens for reasons related to their immigration status.”^[1]

Immigrant detention has become an established policy in countries across the globe (Flynn 2014). According to Robyn Sampson and Grant Mitchell, it has “increasingly become a preferred means for states to maintain and assert their territorial authority and legitimacy, and respond to mounting political pressures regarding border security.”[2] Before the 1980s, detention was largely an ad hoc tool exercised by wealthy states in exigent circumstances (Flynn 2014). How did immigration-related detention develop into a global practice? This question, addressed by the panelists at the July 21 dialogue, is the subject of Mr. Flynn’s recently published article in the Journal on Migration and Human Security, titled “There and Back Again: On the Diffusion of Immigration Detention.”

Mr. Kerwin began the dialogue by addressing the timely nature of this topic. Commenting on the policy alternatives being deliberated for how to handle the humanitarian crisis reflected in the large increase of unaccompanied migrant minors arrested at the United States-Mexico border, Mr. Kerwin questioned the tendency of state actors to rely on the same strategies whenever there is a perceived “migration crisis,” or an increase of unauthorized migration. These strategies include increased border enforcement, arrangements with other states to impede migrants from reaching territorial boundaries, and an amplified use of immigration-related detention.

Mr. Flynn’s presentation highlighted research detailing the history of policies and practices in immigration destination countries that have led to the spread of detention practices over the last 30 years. Focusing on the Asia-Pacific, the Americas and Europe, he contended that the industrialized democracies in these regions learned from each other the purported efficiency of detaining migrants and asylum seekers outside their territories (Flynn 2014). This process of “unilateral emulation”—the practice of states voluntarily adopting a policy they learn from another state—has been critical to the expansion of certain forms of detention, particularly in the use of offshore detention facilities (Flynn 2014).

For example, in the early 2000s, Australian parliamentary records show that officials cited the US use of the Guantánamo Naval Base in Cuba to detain refugees and other unauthorized migrants when proposing the “Pacific Solution” (Flynn 2014, 180). The Pacific Solution, a set of legislative changes adopted by the Australian Parliament in September 2001, allowed for the detention of unauthorized migrants and asylum seekers on the island nations of Nauru and Papua New Guinea.[3] In a description of the Pacific Solution, the parliamentary digest in Australia also recounted additional US policies that were pursued by successive administrations to deter unauthorized migration beyond their territorial borders (Flynn 2014, 182).

The Presidential Decision Directive-9 was one example mentioned in the parliamentary digest. This directive, issued by President Clinton in June 1993, instructed the relevant federal agencies to “take the necessary measures to preempt, interdict, and deter alien smuggling in the US”^[4] (quoted in Flynn 2014, 175). It also averred that the United States would “attempt to interdict and hold smuggled aliens as far as possible from the US border and to repatriate them when appropriate”(ibid.). Australia emulated this prevention through deterrence model.

Another strategy used by industrialized countries to deflect migratory pressure has been to encourage detention operations in countries on their periphery (Flynn 2014). Europe diffuses enforcement to its non-European neighbors both directly by funding detention in non-European countries and indirectly by hardening EU borders and leaving non-European countries to deal with increased numbers of unauthorized migrants and asylum seekers (Flynn 2014, 186). Mr. Flynn used the case of Mauritania to illustrate this phenomenon. Due to the fortification of European borders, migratory flows to Mauritania have substantially increased. There is no indication that Mauritania held unauthorized migrants in detention facilities before 2006[5] (Flynn 2014). However, because Mauritania became a key transit country for asylum seekers and other unauthorized migrants trying to reach the Canary Islands, the Spanish government funded an immigration-detention center in the country, which opened in 2006 (Flynn 2014, 187).

Efforts by industrialized countries to expand immigration control beyond their borders have contributed to the global phenomenon of immigration-related detention (Flynn 2014). These policies have also resulted in significant challenges to the rights to seek asylum, to humane reception conditions, to non-refoulement, to liberty and security of person, and to the prohibition of arbitrary deprivation of liberty (Edwards 2011). Mr. Flynn noted that vital and endemic questions of jurisdiction and accountability arise in the use of interdiction, offshore detention centers, and the promotion of third-country detention facilities.

Ms. Schriro added perspective to the dialogue by discussing practices of the US Immigration and Customs Enforcement agency (ICE). Ms. Schriro served as Special Advisor to former Department of Homeland Security (DHS) Secretary Janet Napolitano on detention and removal policy. She was also the founding Director of the DHS Office of Detention Policy and Planning. In that role, she wrote a comprehensive report on ICE’s immigration detention system and directed work on the department’s plan to implement it.

Ms. Schriro shared some of the findings from her 2009 report, in addition to recent insights on immigration-related detention in the United States.[6] She noted that ICE has often emulated the practices and policies used in the correctional incarceration context. As a matter of law, immigration-related detention is distinct from criminal incarceration in the United States, yet both populations are managed in similar ways (Schriro 2009). The design of immigration-related detention facilities, their construction, staffing plans, and population management strategies are all based largely on correctional incarceration standards (Schriro 2009).

Individuals in immigration-related detention are housed in facilities regulated by penal norms, sent to disciplinary segregation when they break the rules of the facility, stripped of their property, forced to wear prison garb, and guarded by personnel trained to treat them as security threats (Miller 2010, 236). They also experience many of the same chronic problems present in criminal custody including sub-standard medical care, deaths in detention, inadequate mental health care, and custodial sexual abuse (Miller 2010).

When discussing the conditions of immigration-related detention in the United States, Ms. Schriro stated that “by and large the conditions of supervision, of incarceration are more restrictive than the risk that population has presented.” She also pointed out that immigration-related detention generally lacks appropriate standards tailored to meet the distinctive situation of immigrant civil detention. When asked by Mr. Kerwin to provide one standard that could improve US immigration-related detention practices, Ms. Schriro commented that, at a minimum, immigrants in civil detention should be treated no worse than pre-trial detainees. She argued that adopting the policies and practices used in pre-trial detention would make an appreciable difference, but that this was not where reform should stop.

Some of the themes raised during the question and answer session included the reasons that increased detention was adopted as a default response to heightened immigration, the privatization of immigration-related detention, the sharing of positive standards in immigration-related detention practices, conditions faced by returned migrants, and the use of risk-based assessment in immigration-related detention. A complete video of the dialogue is available below.

[1] For a comprehensive explanation of this definition, see Flynn 2011, 7-9.

[2] Despite the increase in immigration detention, the authors find that government interest in alternatives to detention has recently increased as well. For an examination of the nature of these seemingly contradictory trends and potential reasons for the observed tension in this area of migration policy see Sampson, Robyn C. and Grant Mitchell. 2013. “Global Trends in Immigration Detention and Alternatives to Detention: Practical, Political and Symbolic Rationales.” Journal on Migration and Human Security 1(3): 97-121.

[3] In February 2008, Australia ended its Pacific Solution policy of detaining asylum seekers and other unauthorized migrants on the islands of Nauru and Papa New Guinea (UNHCR 2008). In August 2012, Australia’s parliament revived the program and once again approved legislation that authorized the transfer of asylum seekers who arrive by boat to Nauru and Papa New Guinea (HRW 2012).

[4] “Operation Global Reach,” a 1997 Immigration and Naturalization Service-led initiative, utilized various elements of the 1993 Presidential Directive. A 2001 Justice Department fact sheet described Global Reach as a “strategy of combating illegal immigration through emphasis on overseas deterrence” (quoted in Flynn 2014).

[5] According to Amnesty International, in the rare cases when migrants were arrested by police before 2006, they were typically held as police stations (2008).

[6] See also Mr. Schriro’s 2010 article on the inclusion of the immigrant detainee population in the 2010 American Bar Association Criminal Justice Standards of the Treatment of Prisoners.