The Past and Present of Immigration Detention: Your Questions Answered

Donald Trump’s promise of “mass deportations” looms over millions of people who live in the United States. But the infrastructure to detain immigrants didn’t start with Trump. 

U.S. Immigration & Customs Enforcement detains an average of 37,000 people per night, often partnering with sheriffs who hold immigrants in their local facilities in exchange for a profit. For over a century, the U.S. government has relied on local jails to detain immigrants, creating a vast network of incarceration that operates with minimal oversight. Other detention centers, run by private companies, have also proliferated. The incoming Trump administration is likely to tap into this network.

We suspected that you have questions about this system, so we asked you to reach out and let us know as part of our series “Ask Bolts.”

To answer them, we turned to historian Brianna Nofil, an assistant professor at William & Mary who traces these developments in her new book, The Migrant’s Jail: An American History of Mass Incarceration.

The growth in the detention of migrants, she argues, has fueled the broader expansion of the carceral state. From the detention of Chinese migrants in New York in the early 1900s to the jailing of Caribbean refugees in the South in the 1980s, her research explains how federal authorities and local law enforcement have helped each other create a patchwork of policies that incentivizes incarceration. 

Nofil answered ten of your questions, exploring the legacy of the internment of Japanese Americans, the detention of Haitian refugees in the 1980s, and other pivotal historical moments that normalized and entrenched mass detention as a central feature of U.S. immigration policy. Many queries we received revolved around instances of pushback against this history and the lessons those hold for opponents today; Nofil tackles some of those questions too.

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What historical moments changed public opinion and “normalized” immigration detention? — @behrbones, on BlueSky

For as long as migrant detention has occurred, Americans have raised questions about its morality and legality. Often this happened in the small towns that rented jail space to the immigration service. In Malone, New York, a border community that detained hundreds of Chinese migrants between 1900 and 1904, for example, the local newspaper described the incarceration of migrants as “a shame upon civilized government.” Still, detention has always been most politically popular when it targets people seen as too poor, too radical, too sick, and above all, too racially different to be citizens. 

In 1981, the Reagan administration began debating building federal detention centers in response to rising numbers of refugees from Haiti arriving in South Florida—the first major investment in permanent migrant detention infrastructure. But Reagan’s Department of Justice had hesitations. They wrote in an internal memo that the “appearance of ‘concentration camps’ which, at the present time, would be filled largely by blacks, may be publicly unacceptable.” There has always been uncertainty with whether Americans would tolerate migrant detention, or whether incarceration without trial was a bridge too far in American jurisprudence.

Mass migration from Haiti—and fear and demonization of Black refugees, of HIV-AIDS, of poverty—was a transformative moment for the normalization of detention. The Reagan administration successfully argued that Haitians were not legitimate asylum seekers and that detention was necessary to deter migrants from coming to the U.S. in the first place. It also marked a pivotal moment for how Americans think about refugees: for many policymakers and citizens, the migrants of the 1980s weren’t the “good” post-war refugees who patiently waited in Europe until the U.S. sent for them; these were people from the Caribbean and Latin America who were showing up in the U.S. and claiming asylum. The Reagan administration was terrified of what this change in asylum practice meant, and detention aided in transforming asylum seekers into another form of “illegal immigrant” in the eyes of the American public.

Why did sheriffs become such huge players in detaining immigrants if the feds are the ones arresting people? What’s stopping ICE from just detaining people on its own? — adapted by Bolts staff from a comment on sheriffs shared by Janice, from Ohio

A persistent obstacle for the immigration service has been finding physical space to detain people. At the turn of the 20th century, the U.S. had detention beds at major ports of entry, such as Ellis Island in New York City and Angel Island in San Francisco. But if agents apprehended a migrant away from major cities, the immigration service had little detention space of its own. This became a particular issue as more migrants began using the U.S. land borders as an entry point to thwart restrictive immigration laws. In order to detain people in most of the country, the immigration service brokered deals with sheriffs to detain migrants awaiting hearings and deportations in local jails, in exchange for a nightly rate paid to the county. 

Many sheriffs saw these arrangements as highly desirable—an easy way to pump federal money into their communities and turn the local jail into a revenue-producing institution. Some sheriffs had strong political and ideological commitments to deportation and immigration restriction; others saw it as simply a favor to the feds. As communities overbuilt jail space in the 1980s and 1990s, working with the immigration service became a way to keep rural jails filled and financially afloat. And revenue from migrant incarceration was often reinvested into prison expansion and law enforcement.

Jails, and the sheriffs who oversaw them, gave the immigration service a detention footprint in virtually every American community. When things went wrong at privately-run and federal facilities, jails served as the safety valve—a place where the immigration service could transfer migrants to deter protests, respond to legal interventions, and counter criticism. In recent years, sheriffs have become even more essential in deportation, via programs like 287(g) that deputize local law enforcement to carry out certain functions of federal immigration officials.

Japanese immigrants & US citizens were rounded up & placed in internment camps during WW2. What laws or court precedents were the authorization for this action, and are these still relevant today? — Ginger, from Arizona

The FDR administration apprehended Japanese nationals under the wartime authority of the Alien Enemies Act of 1798, a law which Trump has promised to immediately invoke as the backbone of his deportation program. The law empowers the president to detain and deport non‑citizens when the nation is at war—or in the case of a presidentially proclaimed “invasion” or “predatory incursion” by a foreign nation. The law has never been used when the U.S. is not at war. However, U.S. immigration law has long blurred the lines between migration and invasion: The pivotal 1899 Chinese Exclusion case that established federal control over immigration described migration control as a by-product of foreign affairs and immigration as an act of “foreign aggression and encroachment.” 

Japanese Americans were apprehended via an Executive Order, which was upheld by the Supreme Court in Korematsu v. United States (1944). Korematsu wasn’t overturned until 2018, during Trump v. Hawaii, which ruled on the legality of the ‘Muslim ban.’ Legal scholars have different interpretations about whether Trump can use the Alien Enemies Act in this way—but there’s good reason to believe the courts won’t stop him. 

The Migrant’s Jail looks at these legal precedents, but it also looks at the legacies of Japanese wartime incarceration in terms of built environment: The U.S. immigration service used existing relationships with sheriffs to aid in apprehending and jailing Japanese nationals, and after the war was over, repurposed Japanese detention barracks for the mass deportation drives of Mexican migrants in the 1950s. The immigration service has long described itself as pursuing a strategy of “flexible detention space”—this is an extreme example, but it shows how detention infrastructure could be reimagined for whichever project of racial control and removal the state deemed most pressing.

My understanding is that the Obama administration tried to get rid of for-profit prisons on a federal level. Has that work been completely undone? I’m thinking of this especially in light of the planned mass deportation (and presumably incarceration), and how private prisons and profits will play into this. — @thehoneytheif, on BlueSky

(Editor’s note: President Barack Obama’s executive order against private prisons, which was rescinded by President Donald Trump, did not apply to immigration lock-ups. But the question of how private companies feature into this detention landscape remains relevant.)

Presidents Obama and Biden both restricted the Bureau of Prisons (BOP) contracting for private prisons (and indeed, the BOP ended their last private prison contract in 2022) while leaving the door open for ICE to continue using for-profit facilities. In 2023, 90 percent of people in ICE custody were held in for-profit detention centers—that’s a 10 percent increase from the Trump administration. The private prison business has boomed under Biden, and Trump stands to inherit a multi-billion dollar network of private sector detention sites. This will be supplemented by the continuing cooperation of sheriffs and local law enforcement in housing migrants in local jails, many of which are also operated by private prison companies. 

The federal government owns and operates very few of its own migrant detention sites today. The agency claims it’s faster and cheaper to outsource detention to the private sector. But another big reason for the embrace of private prisons is that it distances the federal government from accountability for detention practices; since the privatization boom of the 1980s, the immigration service has regularly shielded itself from criticism and attempted to insulate itself from legal liability by arguing that detention’s worst abuses are the faults of contractors, rather than the directives of the government itself.

Who will be making money off of this? — @sbec, on BlueSky

Everyone! The migrant detention system (like for-profit incarceration, more broadly) rewards those who can sustain human life at the lowest possible cost: Everything from food services to medical care to data management to transportation services between detention centers to deportation flights is making companies money. In 2019, employees of Wayfair staged a walkout to protest their company providing furniture to detention centers—a reminder that even beyond the obvious suspects, like prison private companies, there is enormous profit to be made by the private sector across the board from government contracting.

What sources do you use for data around ICE detention, and how concerned should we be about their accuracy over the next few years? — DSinger, from Illinois

Decades of scholars and activists have bemoaned the inadequacy of data and recordkeeping by immigration services. In 1923, the former president of the American Prison Association attempted to find out how many local jails detained migrants for the federal government, and was stunned to find that the federal government did not maintain this information. Similarly, in writing this book, I wasn’t able to find any data on how many migrants the U.S. detained annually prior to 1947—I’m fairly certain this data doesn’t exist. And because so much of detention is happening locally, and happening in ad hoc ways (in warehouses, in office buildings, in motels), the numbers we do have are likely imperfect.

Many of these problems persist, and one nonpartisan group of scholars describes the data released under the Biden administration as “inconsistent, error-ridden, and misleading.” A 2024 Government Accountability Office report suggested that the ICE’s methodology may be seriously undercounting the number of individuals detained in the U.S. And there’s plenty of other data ICE doesn’t collect at all: It’s extremely hard to find comprehensive information about all of ICE’s intergovernmental contracts, for example. The decentralization and outsourcing of detention makes the practice all the more difficult to monitor.

But there are resources that try to fill this void. The Transactional Records Access Clearinghouse, based out of Syracuse University, does tremendous work in tracking immigration court backlogs, detainee transfers, and other enforcement metrics—much of which they acquire through FOIA. Austin Kocher’s substack is essential for dissection and analysis of immigration data; he also has a great list of additional data resources.

Do detained immigrants have access to the same rights in the justice system as legal residents who are arrested? — Bolts Lover, from Virginia

They do not. In the 1883 case of Fong Yue Ting v. United States, the Supreme Court ruled that deportation, and by extension, detention, was not a punishment for a crime. This created one of the fundamental paradoxes of immigration detention—that it’s a civil or administrative form of imprisonment, rather than criminal punishment, even when it’s taking place in the exact same jail! In practice, this means that migrants in deportation proceedings have few due process protections: They are not entitled to legal representation, to a trial by jury, to a speedy trial. If apprehended within 100 miles of the border, migrants who entered the U.S. without authorization can be removed without a hearing. 

Access to legal aid is a particular issue for migrants in detention: Only 14 percent of detained immigrants go to court with lawyers, and migrants are twice as likely to obtain relief from deportation when they have legal representation. The U.S. has tried countless ways of distancing migrants from access to legal aid and accelerate deportations and removals, such as placing detention sites in rural communities and erratically transferring migrants across state lines. They have also tried to remove migrants from U.S. soil altogether, both through practices like interdicting migrants at sea, and through the creation of extraterritorial detention camps, like the one operated at Guantánamo Bay in the 1990s.

Despite these limits, migrants regardless of immigration status do have guaranteed rights under the Constitution. With raids likely to be a component of Trump’s deportation efforts, it’s critical that our neighbors know their rights, particularly when it comes to allowing ICE into their homes. ICE frequently misrepresents themselves as “police” during traffic stops and raids, or uses other ruses to access migrants, like claiming that they are investigating a crime or that they found a lost ID. ICE agents must have a signed judicial warrant from a judge to enter your home, not an administrative warrant signed by an ICE agent—and they rarely have a judicial warrant!

 

Have naturalized citizens or Americans born abroad been affected by these detention practices? Will they be now? — Gina, from North Carolina

Citizens have always gotten caught in the deportation machine: sometimes by design, sometimes by the machine’s imperfect (and categorically racist) methods of identifying, sorting, and adjudicating. There are countless mentions in newspapers and other archival records: For example, in 1929, the immigration service detained Emilio Martinez, a 15-year-old Mexican-American citizen, in Edinburg’s Hidalgo County Jail for three months on a charge of illegal entry. It took a small army of sympathetic lawyers, including famed South Texas lawmaker José Tomás Canales, to locate his birth certificate and secure his release. The U.S. also has a long history of denaturalization; historian Patrick Weil found that more than 22,000 Americans had their citizenship revoked away between 1906 and 1967, some on the basis of fraudulent documents or statements in their naturalization cases, but many others on the basis of purported political radicalism or “disloyal” conduct. 

Citizens certainly could become vulnerable. But far more vulnerable will be folks with legal status that could expire or be terminated with relatively little fanfare—for example, the approximately 1 million people who are currently shielded from deportation via Temporary Protected Status. “Legal” and “illegal” are not stable categories of belonging.

Are there historical examples of pushback that have restrained immigration detention? Or has it been a one-way ratchet? — @behrbones, on BlueSky

There have been significant legal victories against immigration detention. In 1982, for example, the Haitian Refugee Center challenged the mandatory detention of Haitian asylum seekers on the grounds that the Reagan administration had made the policy through improper channels and that it almost exclusively impacted Haitians. The judge ordered the release of 1,900 Haitians from detention. 

However, the federal government’s power over immigration is so sweeping that these legal victories have often forced the immigration service to formalize policies, rather than significantly stunting detention’s growth. In the aftermath of Louis v. Nelson, the courts conceded that the Reagan administration could simply create these same detention policies through proper administrative channels and continue the practice. After a lot of grumbling, the federal government did just that. 

Outside of the courts, some of the most successful pushback to detention has been via community organizing. Making the abuses and atrocities of migrant incarceration visible has been central to restraining detention. In the 1950s, when the U.S. formally disavowed detention except in “exceptional” cases, it was due in part to public outrage about migrants being detained for years on Ellis Island while awaiting investigations. Groups like the ACLU portrayed these lengthy detentions (mostly impacting Europeans) as evidence of an out-of-control Department of Justice, and an American form of gulag or concentration camp—ideologically and morally indefensible. They published political cartoons, memoirs of detainees, countless op-eds, and generally put names and faces to the suffering.

What options do local governments have to resist detention efforts? — MB, from New Mexico | How can progressive governors push back against Trump’s agenda? (While New Jersey has enacted laws barring the law enforcement and county governments collaborating with ICE, there are all these ways ICE still gets law enforcement collaboration.) — Satenik, from New Jersey

ICE acquires the majority of its detention space through intergovernmental service agreements (IGSAs), a contract between the federal government and a county or city indicating that the locality will provide detention services. In some cases, this means migrants are held in the local jail. In other cases, localities subcontract with private prison companies. Using localities as a middleman allows ICE to acquire beds quickly and circumvent the more cumbersome federal procurement process. It also means revenue for localities: To this day, ICE does not track the amount of money localities collect from private prison companies when they subcontract detention services.

Much of the organizing of recent years has focused on pressuring localities to end IGSAs and get ICE out of local jails. It has been remarkably effective: New Jersey, California, Washington, Nevada, and Illinois have all passed laws that limit or bar migrant incarceration. But these laws have been controversial. In 2023, the courts sided with private prison company CoreCivic and the Biden administration in a lawsuit challenging the New Jersey detention ban. The judge called the ban “a dagger aimed at the heart of the federal government’s immigration enforcement mission and operations.” 

Many of these federal-local relationships flourish in the shadows—people simply don’t know all of the ways their cities and counties are aiding in deportations. 

Sanctuary policies—policies of non-cooperation with ICE—aren’t a silver bullet. ICE and the federal government have resources to work around them and coerce localities into cooperation, such as cutting funding to local law enforcement who refuse to aid in deportations. (This will also likely be challenged in court.) However, sanctuary policies do throw sand in the gears of the deportation system: They can delay removals, create time-consuming litigation, and make it more difficult for ICE to identify targets for deportation. Aside from defensive maneuvers, local governments can do more to ensure equitable access to social services and legal aid: The American Immigration Council has a list of model legislation for protecting migrants’ rights on the local level.