by Julia Mason

Incarceration didn't used to be a part of immigration policy, but since the 1970s, migrant detention has become a hallmark of the United States' immigration enforcement policy.  In order to understand the causes of America's brutal detention system, we spoke with César Cuauhtémoc García Hernández about his latest book, Migrating to Prison: America's Obsession with Locking Up Immigrants, the history of immigration detention, and how abolition and immigrant rights groups are fighting back.

Julia Mason: In addition to teaching immigration law at the University of Denver's Durham College of the Law, you also practice immigration law. What drew you to the issue of immigration?

César Cuauhtémoc García Hernández: I'm a child of the Borderlands. I was born and raised in South Texas, in McAllen, Texas. My very earliest introduction to the law itself was in the form of the Border Patrol, deciding who was able to cross the border and see family, as my own family did on a regular basis for everything from the most mundane activities, like shopping, to the most important, weddings and baptisms. So I very quickly learned the power that came with law enforcement, not just in the form of handcuffs and guns, but also in the form of the legal institutions, that those individuals who donned the Border Patrol uniform represented in my own very narrow and young perspective. And so that experience as a child has never left me and it’s one that has helped to define the work that I've done, basically my entire life.

JM: Your first book is about crimmigration law, and you also publish the blog Can you tell me a little bit more about crimmigration? How did immigration law and criminal law become so conjoined?

CCGH: For many years now, I've been studying the intersection of criminal law and immigration law. Because it turns out that what happens in the criminal courtroom, and even earlier on what happens in those daily interactions between local police officers and ordinary people as they're going about their regular lives, quite often dictates what happens in an immigration law setting, whether it's an immigration courtroom, or whether that's just an ICE officer who finds a way to imprison and remove a person from the United States because of their particular citizenship status.

Criminal law and immigration law were historically thought of as two separate spheres of law, and beginning in the middle of the 1980s, we see the boundary between the two begin to blur. So much so that for many people, the boundary has effectively collapsed. That started in the 1980s, with the War on Drugs. The Reagan administration was looking for a political tool to rally support among conservative white voters who were dissatisfied with the outcomes of the ‘60s and ‘70s and the restructuring that was led by civil rights activists across the country. And so the Reagan administration landed on drugs, the fear of illicit drug activity.

The more hidden side of that story is that the beginnings of this intersection between criminal and immigration law were also happening at that moment. Some of the very people who were being blamed for the newfound concern about illicit drug activity were black-skinned migrants, people from Jamaica or Cuba, and later from Central America. People who were just coming seeking asylum were being portrayed as an indication of a complete collapse of border security measures. And so we see that the legislation associated with the War on Drugs led to some of the earliest pieces of legislation associated with crimmigration law.

JM: In your book, Migrating to Prison, you write about several turning points in immigration law and national politics that led to the sprawling immigrant detention and imprisonment system that we have today. What are some of those turning points?

CCGH: One of the turning points is in the early and middle 1980s, when we started to see large numbers of Haitians coming to the United States fleeing the last years of the Duvalier family dictatorship, and who came to the United States to seek safety and to request asylum. The Carter administration, hurriedly and in a very ad hoc manner, turned to incarceration as a way of controlling those individuals and keeping tabs on them. The premise was “...these individuals represent some danger...  if we don't know where they are at all times, then they're liable to endanger individuals who are already in the United States.”

A few years later, when Cubans began to leave the island from the port of Mariel, the media conversations and political conversations described them as outcasts of Castro's prisons. If I can paraphrase the opening lines of Scarface, the Hollywood blockbuster from the 1980s, in which Al Pacino plays an individual who leaves Cuba, in the opening theme, those individuals are described as the “dregs” of Castro's Cuba. So the worst of the worst, the lowest of the low.

Of course, the reality of migration has never quite fit that sensationalized description. But it's a perception that that carries the day rather than the reality of who was coming and why they were coming. And so that really set the tone from which we haven't really deviated. The general trend remains the same: a willingness to demonize migrants and the strong arm tactic of policing and incarceration as the only way of upholding a functioning immigration law system, which is a rather myopic view of things.

JM: In Migrating to Prison, you've written about how the debate over immigration has been dominated by the idea of the good immigrant and the bad immigrant, a dichotomy that obscures the simple truth that migrants are people. Can you tell me more about how we can move away from this rhetoric and towards an immigration system that doesn't demonize or hold immigrants to impossible standards?

CCGH: Firstly, I think it's important to move away from some myths that often surround conversations about immigration and have actually made their way into formal immigration law, such as the very notion of the world being divided into two categories of people. One category consists of US citizens and the other category consists of aliens. But migrants are just people, ordinary human beings. And so we begin to move away from this good versus bad narrative, by recognizing that migrants should not be expected to be extraordinary. They should be expected to be ordinary. As ordinary as any of us who happen to be born into citizenship. If we start with changing the rhetoric and the way in which we talk about migration, we can begin to change the policy parameters and push back against the sense that there are some people who deserve to live in the United States, and there are others who do not deserve to live in the United States.

We as a political community have an incredibly hard time deciding who is a good person and who is not a good person. Whether this is in the immigration context or not, this is true in parts of the United States. As regrettable as it is, the reality is that crime and violence are not unknown to college campuses. College students are very well familiar with the fact that sexual assaults are endemic on many college campuses. But no one walks to the corner of a well-manicured college green and stands and says ‘there goes another criminal undergraduate.’ These are white, wealthy spaces. And so the police are not going around knocking on dormitory doors trying to finally figure out who's engaging in violent behavior, who's engaging in illicit drug use as they do in communities of color and poor communities throughout the United States.

Some of us manage to engage in our reprehensible activity behind the relatively protected doors of college campuses and others don't. But that doesn't mean that one person is any better than the other, that just means that one person is more privileged than the other. So if we're going to go around deciding that the stain of criminality is a basis for determining who gets to live in the United States, then we have to be willing to ignore all of the biases of the underlying criminal justice system that ends up in some people being stained by the marker of “criminal” and others who aren’t.

JM: In Migrating to Prison, you discuss some successful alternatives to migrant detention, what Freedom for Immigrants calls ‘Community Investment.’ These programs are programs that pair migrants with social workers, lawyers, or people who can help navigate support systems. And in addition to being cheaper than detention, these programs are also wildly successful with nearly 100% of participants showing up on their court dates. Why haven't these programs become more widespread and well-known?

CCGH: We in the United States who have been experimenting with small-scale programs that support people going through the immigration law process, do so quite successfully, and do so without involving police forces, or coercive requirements to deprive people of a critical component of human autonomy. The reason why we haven't expanded those nationwide is because of a complicated mix of corporate profit and political winds. The reality is that there are many investors who profit handsomely from incarcerating human beings, whether that's the private prison companies like the CoreCivics, or the GEO Groups of the world, whose business model is to incarcerate for profit, or whether it's local elected officials who build or refurbish county jails, and who would prefer to have the federal government pay for the debt that they incurred doing that or to pay for salaries that they can then use to hire constituents. In their communities, it's essentially free money. This is the federal government providing a fairly stable form of revenue for often cash-strapped, local governments. And to turn that off is a threat to the economic vitality of communities attached to their prisons, and a threat to re-election for local officials. And so there is a complicated network of interested individuals and corporate entities, all of which have the same goal in mind -- to ensure that people are being incarcerated. This is not something that it's unique to any particular geographic region, or communities with a particular history or a location, but is spread corner to corner across the United States.

JM: Do you have any predictions for what to expect for immigration reform from the current? Are there any particular policies that you’d particularly like to see in the next couple of years?

CCGH: Well, the administration came into office after a campaign in which Biden promised to humanize immigration law immigration policy. I think when it comes to the rhetoric, we've seen it expressed both with President Biden and Vice President Harris on down to key members of the administration and I think it's actually quite meaningful. But of course, rhetoric is not everything.

President Biden comes with an enormous amount of baggage, personally, and institutionally. He was Vice President under President Obama when record-breaking numbers of people were locked up by ICE and were being deported. Now, as President Biden comes into the White House with that history, I think it is wholly understandable that the migrant community would view him somewhat skeptically.

In addition to that, the Biden Administration, whatever its intentions are, is not inheriting a Department of Homeland Security that is operating on a blank slate. History wasn’t erased at noon Eastern time on January 23, 2021. Quite the contrary, our agencies have very tarnished reputations in migrant communities. And no matter what the leadership is saying, the implementation of policies is something that is still very much bringing fear to people's lives.

I'll be looking to see whether they are using some of their political capital and talking points into more than just proposals that get filed in Congress.

As for the U.S. Citizenship Act, the administration put that out there, great, but I think everyone knew that was dead on arrival. I’ll be looking to see whether they continue to push forward legislation included in the [U.S. Citizenship] Act that is going to help to legalize many of the people who are already in the United States that have been here for decades, whether it's Dreamers who have been here for essentially their entire lives, whether it's people who came as an older age, and have nonetheless been making their lives here for for many years. I’d like to see them create a legal defense network for people who are going through the immigration court process. Will that be carved off into some of these smaller pieces of legislation, so that everyone who is standing up in front of an immigration judge facing off against the prosecutor has the opportunity to do so with a lawyer at their side? These are discrete proposals that would have a dramatic impact on improving not only outcomes for individual migrants, but it would improve the quality of justice that has been meted out in immigration courts. Because right now, we have immigration courts that produce incredibly unjust outcomes because you have the deck stacked so heavily in the government's favor.

César Cuauhtémoc García Hernández is an immigration attorney and professor of law at the University of Denver who writes and teaches about the intersection of criminal and immigration law. He has published two books, Migrating to Prison: America’s Obsession with Locking Up Immigrants (2019), and Crimmigration Law (2015). He also publishes the blog

Julia Mason is a freelance writer and the granddaughter of immigrants and refugees. She lives in Seattle.