By Smita Ghosh and Mary Hoopes

This post explores the rise of immigration detention in the United States. It explores a puzzling institutional dynamic between the executive and legislative branches, and explains how immigration detention began as an ad hoc executive initiative and evolved into one imposed by the legislature, over the objections of the immigration agency. In this article, we explain how a transformation in the perceptions of asylum seekers was critical to this transformation.

Our interest in this project began when we encountered a puzzling congressional hearing from 1981. In this hearing, lawmakers pushed back on the Reagan Administration’s plan to detain anyone who arrived without proper travel documents.

While it’s hard to imagine today, detention had not been routine prior to this; in fact, immigration authorities did not generally detain non-citizens even after a final deportation order was entered.

This hearing was at odds with our understanding of how immigration detention had evolved: we had thought that the system of immigration detention was imposed by the legislature in laws like the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), but lawmakers were actively opposed to detention in the early 1980s. A puzzle emerged. What had happened during these fifteen years? In other words, how did the system of immigration evolve from an ad hoc executive policy into one imposed by the legislature over the objections of the executive branch?

To answer these questions, we set out to comprehensively review the legislative history. We read more than five thousand pages of congressional hearings and reports and supplemented these texts with archival materials from presidential libraries and a review of print media sources.

What drove the transformation in detention policy over these fifteen years?

We learned that a critical component was a transformation in lawmakers' perception of asylum seekers. Prior to the early 1990s, members of congress focused their detention efforts on noncitizens with criminal convictions. They heralded the rights of asylum seekers, emphasizing that the right to asylum was a core humanitarian commitment. However, after the asylum “crisis” of 1993, lawmakers changed their depictions of asylum seekers dramatically. No longer the embodiment of sacred American values, they were now, in the words of one Congressman, “walking Typhoid Marys,” who harbored infectious disease and sought to take advantage of generous procedural protections. This change in discourse cleared the way for the mass detention of arriving migrants more generally. 

We learned that this fifteen year period could be roughly divided into three “eras” that each reflect a different dynamic between the executive and the legislature. In the first era, the executive branch pushed the legislature for the power to detain, trumpeting it as a deterrent to future immigration crises. Lawmakers resisted these efforts, describing them as offensive to the country’s historic commitment to asylum. In the next era, beginning in the mid-1980s, lawmakers developed a preoccupation with the so-called “criminal alien,” and began to voice support for more detention as a way to ensure that government agencies removed noncitizens with criminal convictions. Members of congress still distinguished between asylum seekers and ‘criminals’ during this period. This would all change beginning in 1993, as a series of factors converged to create an “asylum crisis.”  The media seized upon the fact that one of those responsible for the World Trade Center bombing had applied for asylum, which coincided with a general recasting of unauthorized migration as a crime in the public imagination. In a segment of 60 Minutes that was later introduced in Congress, a representative from the Federation for American Immigration Reform (FAIR), the leading anti-immigration lobbying group, explained that “if you get to the US, you say ‘political asylum,’ and that’s it. That’s your ticket in. You get a free ride. And you can stay indefinitely.”[1]

Lawmakers now described asylum seekers using the rhetoric of disease and danger, and characterized the asylum system as “sick” and able to be manipulated with ease. Now legislators from both parties were eager to detain broad swaths of people, even though the Immigration and Naturalization Service (INS), the government agency that managed immigration before the Department of Homeland Security (DHS) was created in 2002, countered that this would be ineffective and was unnecessary. This paved the way for the mass detention of immigrants, culminating in broad pieces of legislation in 1996, including IIRIRA, that marked what Margaret Taylor calls a “seismic” change in the landscape of immigration detention.

A number of implications follow from our analysis. As we learned, congressional discourse about asylum seekers changed as the number of asylum seekers increased and as they were incorporated into existing racial hierarchies. In 1993, a moral panic took the form of an asylum crisis, spurred by a confluence of factors, including the end of the Cold War, the recasting of unauthorized immigration as a crime, and a set of terrorist events. Together, this moral panic created a new class of “deviants.” This allowed lawmakers to resolve the dissonance between their humanitarian commitment to asylum seekers, and the threat posed by this new class of allegedly dangerous and risky newcomers. 

As we explain in our new article, the move to expand immigration detention paralleled similar developments in criminal law. Just as legislators reacted to judicial expansions of procedural protections by broadening the scope of criminal liability, legislators reacted to a perceived expansion of asylum seekers’ procedural protections by turning to increased detention. We also locate the roots of a controversial program, expedited removal, in the convergence of two opposing legislative concerns. While expedited removal first emerged out of an assumption that speedy processing would result in less detention, it later appealed to lawmakers that were concerned about individuals falsely claiming asylum in order to take advantage of supposedly  generous procedural protections.

Many of these issues have continuing relevance today. Today, asylum seekers are once again depicted as agents of infectious disease, with the Governor of Texas recently assailing the Biden Administration for “importing COVID.”  Facing pressure not to detain families, the Biden Administration recently moved to institute expedited removal for families that immigration officials determine do not qualify for asylum after an initial screening at the border. As our work has demonstrated, careful attention to changes in the rhetoric about asylum seekers is critical to developing responses to each asylum “crisis,” and to re-imagining—and resisting—new  categories of immigration law.

[1] Asylum and Inspections Reform: H.R. 1153, H.R. 1355, and H.R. 1679, before the Committee on the Judiciary, Subcommittee on Immigration, Refugees, and International Law, 103d Cong. (1993), 51.

About the authors

Smita Ghosh is Appellate Counsel at the Constitutional Accountability Center.  She was previously a Research Fellow at the Georgetown University Law Center, where her research focused on the history of immigration law and policy, mass incarceration, and criminal sentencing.  The American Society for Legal History selected Smita as a Kathryn T. Preyer Scholar for a paper entitled “Policing the ‘Police State’: Detention, Supervision, and Deportation During the Cold War.”

Mary Hoopes is the Director of Research at the Berkeley Judicial Institute, a center within the Berkeley School of Law that aims to foster interaction between the academy and the judiciary. She researches how legal and political institutions can more effectively serve marginalized populations, with a focus on noncitizens. You can find more information on her website.