Twenty Years after IIRIRA: The Rise of Immigrant Detention and its Effects on Latinx Communities across the Nation

Abstract

This paper studies the dynamics of detention, deportation, and the criminalization of immigrants. We ground our analyses and discussion around the Illegal Immigration Reform and Immigrant Responsibility Act of 1996's (IIRIRA's) detention mandate, the role of special interest groups and federal policies. We argue that these special interest groups and major federal policies have come together to fuel the expansion of immigrant detention to unprecedented levels. Moreover, we aim to incite discussion on what this rapid growth in detention means for human rights, legislative representation and democracy in the United States. This study analyzes two main questions: What is the role of special interests in the criminalization of immigrants? And does the rapid increase in detention pose challenges or risks to democracy in the United States? Our study is grounded within the limited, yet growing literature on immigrant detention, government data, and "gray" literature produced by nonprofits and organizations working on immigration-related issues. We construct a unique dataset using this literature and congressional reports to assess what factors are associated with the rise of immigrant detention. A series of correlations and a time series regression analysis reveal that major restrictive federal immigration policies such as IIRIRA, along with the increasing federal immigration enforcement budget, have had a significant impact on immigrant detention rates. Based on these findings, we recommend three central policy actions. First, the paper recommends increased transparency and accountability on behalf of the Department of Homeland Security, Immigration and Customs Enforcement, and on lobbying expenditures from for-profit detention Twenty Years After IIRIRA 75 corporations. Second, it argues for the repeal of mandatory detention laws. These mandatory laws have led to the further criminalization and marginalization of undocumented immigrants. And lastly, it argues that repeal of the Congressional bed mandate would allow for the number of detainees to mirror actual detention needs, rather than providing an incentive to detain. However, we anticipate that the demand for beds will increase even more given the current administration's push for the criminalization and increased arrests of undocumented individuals. The rhetoric used by the present administration further criminalizes immigrants. 1 1 As reflected in the January 25, 2017 executive order from the White House: "Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the human interest" (Enhancing Public Safety in the Interior of the United States, Exec.

The expansion of “crimmigration,” mass detention, and deportation

“…IIRIRA, a turning point in immigration law (see Juárez, Gómez‐Aguiñaga, & Bettez, ), also created the 287(g) program which allowed for local law enforcement agencies to enforce federal immigration laws (Hochschild, Weaver, & Burch, ; Menjívar & Kanstroom, ). Moving local law enforcement officers into the role of immigration enforcement officers was a major departure from previous policies.…”

“…However, the sustained criminalization of Latino immigration has led to a stark shift in this view (Lopez & Livingston, ; Menjívar, Simmons, Alvord, & Salerno Valdez, Forthcoming). The hyper‐policing of Latinos that is justified by media narratives and political discourses has sustained a bureaucratic system of mass deportation, reinforcing collaboration between government agencies and private companies, generating significant profits for both (Juárez et al, ; Welch, ).…”

“…And in 2009, ICE enacted a “mandated minimum” of detention beds, creating a quota for daily immigrant detainees of 34,000 per day (Menjívar & Kanstroom, ). In their analysis of detention practices, Juárez, Gómez‐Aguiñaga, and Bettez (, p. 83) find that Secure Communities and the “bed mandate” are correlated with the ratio of immigrants detained. The bed quotas generate a guaranteed profit for the private corporations that either manage or own detention centers, as ICE is not involved directly in operating these facilities.…”

“…A central feature of the criminalization of immigration today is large‐scale privatization (Juárez et al, ). An estimated 65 percent of the immigrant‐detained population is housed in privately owned or privately managed detention centers (Department of Homeland Security, ); the rest are detained in local jails (25 percent) or federally owned facilities (10 percent) (Department of Homeland Security, ).…”

“…The Geo Group Inc. also runs the ISAP. Thus, the privatization of immigration enforcement goes hand‐in‐hand with its criminalization, enhancing enforcement beyond incarceration into the everyday surveillance of immigrants' lives (Gómez Cervantes, et al, ), and following a longer trend in the expansion of the multibillion‐dollar criminal justice system (Golash‐Boza, ; Guevara Urbina & Espinoza Alvarez, ; Juárez et al, ; Welch, ). Importantly, although in 2016 the Department of Justice (DOJ) announced the end to private prisons, this was not the case for immigrant detention centers.…”