Today, U.S. Immigration & Customs Enforcement (ICE) detains an average of 37,000 migrants each night. To do so, they rely on, and pay for, the use of hundreds of local jails. But this is nothing new: the federal government has been detaining migrants in city and county jails for more than 100 years. In The Migrant’s Jail, Brianna Nofil examines how a century of political, ideological, and economic exchange between the U.S. immigration bureaucracy and the criminal justice system gave rise to the world’s largest system of migrant incarceration. Migrant detention is not simply an outgrowth of mass incarceration; rather, it has propelled carceral state–building and fostered intergovernmental policing efforts since the turn of the twentieth century.
What’s the big idea of this book?
BN: Even though regulating immigration is a federal responsibility, the U.S. government has never had the resources to enforce its restrictive immigration laws. To carry out deportations, immigration officials have relied on relationships with localities and local law enforcement—one important way they have collaborated is through sheriffs renting jail bedspace to the immigration service, a system of so-called “administrative imprisonment” that has endured for over a century. Migrant incarceration matters not only because it’s a humanitarian crisis, but also because it transforms the economics and conditions of America’s local carceral spaces.
Why does the U.S. government begin detaining migrants?
BN: The U.S. begins detaining migrants in significant numbers in the wake of the 1882 Chinese Exclusion Act, which is the first law to ban immigration on the basis of race and nationality. Chinese migrants turn to the courts to challenge the decisions barring them from the nation, often making claims that they were born in the U.S., making them citizens. The immigration service detains migrants while investigating their backgrounds, processing legal appeals, and organizing the transportation for long journeys back to China. In big cities like New York and San Francisco, there are federal detention facilities. But as migrants forge new entry routes across the northern and southern borders, they end up in rural communities where the U.S. has nowhere to hold them. To solve this, immigration officials detains large numbers of migrants in city and county jails.
Logistics and lawsuits matter, but there’s another notion underlying the government’s use of detention: that if the U.S. can make migration or asylum-seeking miserable enough, it’ll stop people from attempting it at all. This has never worked. Yet it remains a powerful, punitive logic underlying policymaking throughout the history of immigration detention.
By the turn of the 20th century, the courts have made it clear that immigration control is the responsibility of the federal government—why do local governments want to get involved at all?
BN: One of the major incentives is money. In communities like Northern New York, where the immigration service rents hundreds of jail beds in the first years of the 20th century, sheriffs are pocketing federal money for each night they detain a migrant. And even after sheriffs’ salaries become more regulated, the money tends to go into county budgets. By the end of the 20th century, sheriffs are funding city emergency services, buying new police technologies, and eliminating personal property tax off of migrant incarceration revenue.
And much like today, there are also political reasons for collaboration. Local leaders have concerns about crime, dependency, public health. Many of these anxieties are stoked by immigration service bureaucrats, who discuss at length about how they can best “sell” their work to skeptical local leaders. And, of course, much of this is deeply racist. Migrant incarceration has always been most politically popular when it is wielded against people of color.
Do people in these communities raise questions about their local governments collaborating with the immigration service? Do they have concerns about locking up people not accused of crimes?
BN: Absolutely. From the turn of the 20th century, there’s a real tension around how incarceration without trial fits with American ideas of justice and due process. We see these concerns become far more pronounced in the 1920s and 30s, when the immigration service begins detaining greater numbers of European migrants. When local newspapers print stories of white women and children held for deportation in jails, it triggers outpourings of local organizing, moral panic, and international interventions.
These moments of alarm are a double-edged sword. Throughout history, migrants and their advocates often relied on rhetoric that suggested migrant detainees were more deserving of constitutional protections and less deserving of jail time than people who had been accused or convicted of criminal charges—a group disproportionately composed of Black Americans. In arguing that migrants were not “common criminals,” advocates often naturalized incarceration for other groups of people. In reality, the rights of citizens and non-citizens, of people who had and had not been to trial, were deeply intertwined.
How do migrants push back against incarceration? What tools could a person detained thousands of miles from home mobilize?
BN: This book tracks many ways that migrants challenge incarceration: much of this resistance involves using the courts to challenge the legality of their detention, but it also entailed hunger strikes, uprisings, escapes, letters to newspapers and embassies, and other actions that migrants undertook at great personal risk.
Resistance also meant mobilizing allies on the outside. For example, I explore how groups like the NAACP, Black churches, and unions organize around the mass detention of Haitian refugees in the 1970s, often making arguments about the shared injustices facing imprisoned African Americans and detained Black migrants. It’s a similar critique that Caribbean migrants detained at Ellis Island make decades prior, linking Jim Crow with the discrimination faced by Black non-citizens crossing national borders.
How does migrant incarceration change how Americans think about their local jails?
BN: One of the things that migrant jailing does is it shows sheriffs and local officials that the jail could be not just a place that costs tax dollars to operate, but a place that produces revenue. This is a dangerous idea for numerous reasons—sheriffs who are trying to maximize the money generated by their jails are incentivized to stretch their bedspace, build bigger facilities, and reduce operating costs wherever possible.
By the end of the twentieth century, enterprising sheriffs are looking to expand their roster of collaborators; they work with the immigration service, but also with U.S. Marshals to detain federal prisoners, and with state prison officials to detain people from overcrowded state prison systems. It creates a vast interstate trade in jailed people, one that removes people from home communities, disperses them across less-regulated spaces, and brings financial rewards for incarceration.
Are migrants’ experiences in local jails different than migrants’ experiences in institutions designed specifically for immigration detention?
BN: Jails are the catch-all spaces of the criminal justice system: they detain people pre- and post-trial, some for a few hours, some for months. The diverse populations of jails, as well as their close connections to local law enforcement, creates different social dynamics and different vulnerabilities for migrants.
One example: when the immigration service began setting more standards and regulations for immigration detention facilities at the end of the 20th century, contracted jails are not held to these same standards. One particularly horrifying case occurred at Florida’s Manatee County Jail in the 1990s, where jailers used electrified shields to punish protesting migrants, including pregnant women. The immigration service had banned electrified weapons in immigration facilities, but in Florida jails, they remained legal. It’s an example of how growing law enforcement budgets in the 1990s allowed localities to obtain new policing technologies which could be weaponized against citizens and non-citizens alike.
Would communities cutting off jail contracts with Immigrations & Customs Enforcement (ICE) fix the immigration detention system today?
BN: I’m skeptical. Cities reevaluating and restricting their collaboration with ICE is an important step—it has been a central point of community organizing and it has made the relationships between ICE and localities visible. This visibility has been critical to getting migrants out of some of the worst local facilities. But part of what makes immigration detention so difficult to reform today is that ICE has many ways to lock someone up. ICE relies heavily on contracts with local governments, but it can also contract directly with private prison companies or open its own facilities if these intergovernmental agreemnts dry up. I’m particularly interested in the issues with jails but all ICE detention facilities have massive problems and horrifying records of abuse. Better contracts or different distributions of financial power will not change the fundamental problems of migrant incarceration; it’s a system that must be abolished.
Brianna Nofil is assistant professor of history at William & Mary.