Intersectionality at the Intersection of Profiteering and Immigration Detention

Publication year2021
CitationVol. 94

94 Nebraska L. Rev. 963. Intersectionality at the Intersection of Profiteering and Immigration Detention

Intersectionality at the Intersection of Profiteering and Immigration Detention

Mariela Olivares(fn*)


I. Introduction .......................................... 963

II. The Road to and Realities of Immigrant Detention ..... 966
A. The Origins of Immigrant Detention ............... 967
B. A Snapshot of Detention ........................... 973

III. The Commodification of Immigrants ................... 976
A. The Prison Business ............................... 977
B. The Prison Industry Discovers the Price of Immigrants ....................................... 985

IV. At the Crossroads-Intersectionality at the Profit-Detention Intersection ................................ 991
A. The Immigrant Is a Criminal ...................... 991
B. The Immigrant Is Not a Citizen ................... 1001
C. The Immigrant Is a Person of Color ............... 1006

V. Disrupting the Intersections: Path to Change .......... 1015
A. Reforming the INA and ICE Implementation ....... 1016
B. Breaking the Corporate Connection to Detention . . . 1018

VI. Conclusion ............................................ 1026


The scene: a meeting between a lawyer and her client. The following are the lawyer's observations, as told to and reported by a journalist:

The front room was empty except for two small desks arranged near the center. A door in the back opened to reveal dozens of young women and children huddled together. Many were gaunt and malnourished, with dark circles under their eyes. "The kids were really sick," [the lawyer reported]. "A lot of the moms were holding them in their arms, even the older kids-holding them

like babies, and they're screaming and crying, and some of them are lying there listlessly."(fn1)
Out of context, the lawyer's observations paint a portrait of a scene from a refugee camp or from the depths of a developing country. Perhaps she is describing families escaping war and bloodshed in a besieged part of the world.

But this scene took place much closer to home-in a government-run immigrant family detention center, located in the isolated, dusty town of Artesia, New Mexico, in 2014. The lawyer was meeting with women and their children who have fled from various Central American countries to the United States, seeking safety from the ravages of violence and poverty in their home countries. When they are captured by or turn themselves in to the U.S. Customs and Border Patrol (CBP), these women and children are locked away. Euphemistically called "family residential centers" by the U.S. government, it is most accurate to report the truth: the U.S. government is imprisoning women and children.

With its storied narrative of welcoming shores and cries of "bring me your huddled masses,"(fn2) one may wonder how American immigration law and policy arrived at the practice of imprisoning mothers and children. And, importantly, a critical observer may query under which foundation does this behemoth prison industrial complex, full of detained immigrants, lie. This Article explores these questions and argues that the social and political subordination of immigrants-who embody the marginalized identities of criminals, non-citizens, and persons of color-feed the profit-seeking carceral machine. The symbiotic relationship between the lucrative prison business and the societal and political pressures for stricter immigration law and policy, driven by these multiple marginalized identities, result in the imprisonment of more immigrants. The current practice of locking up mothers and children illustrates the breadth of this complex. Importantly, and as this Article argues, the success of the corporate prison model relies and flourishes on the continued oppression of immigrants. Though the discussion in this Article of the continued imprisonment of immigrants who are mothers and children helps illuminate the practice, it serves to provide just one stark example of the longstanding and well-established policy of immigrant detention.

Part II of the Article sets a foundation regarding the history and constitutional underpinnings of immigrant detention in order to understand the legal and political genesis of the current scheme. By pro-


viding a snapshot of the current state of immigrant detention, this discussion presents the arrival of a record number of immigrant mothers and children to the United States in 2014 as a case study to elaborate on the role that detention plays in the immigration enforcement system.

Part III builds on this foundation and explores the immigration prison-industrial complex. Section III.A begins by providing a brief history of the societal, legal, and political foundations of the current enormous carceral state-including the political movements of the war on drugs and against supposedly lax criminal justice policies. In this discussion, attention is paid to the growing influence of the prison industry in the political and legislative process to secure its continued success. Section III.B then expands this exploration to the immigrant-detention context, noting how the same trends-the war on drugs, crime, and, to an extent, terrorism-have resulted in massive increases in the number of immigrants detained. Again, prison corporations and entities have gained enormous profits due to these efforts, including, more recently, remarkable financial gains due to the detention of mothers and children.

Part IV then illuminates the necessary ingredient for this endeavor to be so successful. As a non-citizen with few to no rights and privileges in the United States, the immigrant prisoner is easy for the larger society to ignore. Immigrants are perceived as criminals and thus suffer the effects of this marginalizing identity. The effect is especially insidious in this context because the Immigration and Nationality Act (INA) provides that immigrants may be imprisoned despite any finding of flight risk, danger to the larger community, criminal history or, indeed, adjudicated finding of wrongdoing. Incarcerated for suspected infractions of the INA-which are civil offenses, not criminal-detained immigrants often have no legal counsel and limited due process protections. Further, as a person of color-or perceived to be of color-the immigrant suffers the additional long-term, chronic effects of racial political subordination.(fn3) Again using the example of imprisoned mothers and children, Part IV highlights the oppressive power of subordination. Because immigrants are deemed unworthy of protection due to this powerful intersection of subordinated identities, corporatized monetary interests continue to exploit their continued detention for increased profits while calls for humanitarian protections are largely ignored. It is only because the affected population is a marginalized and historically oppressed group that such efforts can continue-and succeed-unabated.


Part V therefore argues that comprehensive immigration reform must account for this reality and embrace measures that disrupt these toxic connections. Because imprisoning people has become lucrative due to the power of oppressing the marginalized, legislative and advocacy measures must work to disrupt the intersections between profitability and oppression. This Part advocates for changes to the INA to restrict immigrant detention for the most critical cases. Further, law and policy must reject the goal of corporate profit in the detention process, such that for-profit entities are either banned from the prison business or leave it due to decreased profits in the face of increased scrutiny. As a model of disruptive change, Part V then looks to an example of when calls for humane treatment of the oppressed negatively affected corporations that previously benefitted from such oppression. In particular, this Part explores how political and social movements successfully influenced pharmaceutical companies to end the sale of drugs used for lethal injections to U.S. states that were using the drugs for that purpose. Next, Part V argues that the profit goals of detention must be erased completely, such that for-profit "alternatives to detention" do not merely replace the current default to detention scheme. To conclude, Part V sets forth a call toward following these paths and ending the widespread reliance on immigration detention.


As an important preliminary matter, it bears clarifying what this Article means when it uses the term "immigrant." According to the INA, a person in immigrant status is a foreign-born person who comes to the United States with a permanent intent to remain.(fn4) The term as used for statutory purposes is more limited than the way in which I use it here; the statutory definition does not generally, for example, include nonimmigrants who are foreign-born people that arrive with the intent to stay temporarily.(fn5) Yet, both categories of people per the INA labels-immigrants and nonimmigrants-can lawfully be detained under the INA detention provisions, described more fully below.(fn6) The more appropriate term under the INA to fully describe the category of people who could be detained, then, is "alien."(fn7) Like many others, however, I do not use the term "alien" due to...

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