Border Games

Refugees and immigrants looking for a new life.

Written by Smita Ghosh, Appellate Counsel, Constitutional Accountability Center.

Immigration prisons have become central to immigration law enforcement. Abolishing them is central to immigration reform. But abolition may have unexpected consequences, especially for the large—and growing—portion of asylum-seekers who are confined after a border arrest. Ending or limiting border detention may encourage the government to exclude asylum-seekers altogether.

This Article illustrates this dynamic using archival records. It investigates official responses to the arrival of Haitian and Cuban asylum-seekers in the 1980s, a founding moment in the history of immigrant detention. During these perceived crises, officials responded by detaining asylum-seekers, planting the seeds for today’s system of mass immigrant incarceration. Officials also developed new ways to bar asylum-seekers from the country in the first place. These exclusionary tactics complemented the government’s detention efforts: they were cheaper and more effective than detention. Even after the 1980s, detention and exclusion—the two faces of sovereignty—travel side-by-side. They are time-tested and deeply related ways to control immigration.

What should we take from this history? This Article explains why courts, lawmakers, and reformers must turn their attention to immigration enforcement on both sides of the border. In addition to abolishing immigration prisons, policymakers and reformers should attend to the understudied exclusionary policies that complement imprisonment. Considering detention and exclusion together makes clear that abolition is an important, but incomplete, solution.