New Book Explains Immigrant Detention ‘Obsession’
DU law professor says attorneys have ‘crucial role’ in mitigating effects of American detention system

by Jessica Folker

A record number of people were locked up for federal immigration offenses in the U.S. last year, with a daily average of more than 42,000 in ICE custody. A new book by a local law professor explains the resurgence in immigrant detention and makes the case for why it doesn’t have to be this way.

“I wanted to let people know the scale of immigration imprisonment these days in the United States,” said César Cuauhtémoc García Hernández, associate professor of law at the University of Denver Sturm College of Law and author of “Migrating to Prison: America’s Obsession With Locking Up Immigrants,” released Dec. 3 by The New Press.

The book aims to “push back on the sense of inevitability” surrounding immigrant detention, García Hernández said. To do that, he devotes the first part of “Migrating to Prison” to the history of immigration law and chronicling the rise, fall and re-emergence of detention policies in the U.S.

In the late 19th century, a legal doctrine called the “entry fiction” was adopted to allow a person to physically set foot on U.S. soil without being legally present in the country, García Hernández said. Passengers could disembark from ships arriving in the U.S., but they would be confined to on-shore facilities like Ellis Island until they were approved for entry or turned away. Starting with the 1896 decision in Wong Wing v. United States, the Supreme Court established that non-citizens can be deprived of their liberty while immigration officials decide whether they may stay in the country.

However, while the courts and Congress had paved the way for immigrant detention by the end of the 1800s, it wasn’t a policy priority for much of the mid-20th century. Under Eisenhower, the Immigration and Naturalization Service “all but abandoned its detention policy” in 1954, according to García Hernández, signaling a shift toward “humane administration of the immigration laws,” in the words of the attorney general at the time.

To read this and other complete articles featured in the Dec. 16, 2019 print edition of Law Week Colorado, copies are available for purchase online.