January 2015: Academic Publications on Unlawful Detention

Our first of regular updates on recent academic articles from around the world on unlawful immigration detention. The following portfolio is compiled by Stephanie Silverman as part of the Detention Workshop, an academic discussion group on immigration detention.

Anderson, S. and J. Ferng (2014). “No Boat: Christmas Island and the Architecture of Detention.” Architectural Theory Review 18 (02): 212 – 226.

This article uses Christmas Island as a site to discuss the contested history of Australian immigration in terms of the built environment. Offshore detention centres and the political systems for detaining asylum seekers pose substantial demands of institutional design, control of populations, and psychic anxieties associated with the arrival of foreigners. Systems of detention are explored through the topics of territory, human labour, boats as visual signs, and the buildings constructed to house detainees. Entangled orders of security expose detention as a timely subject for architectural intervention and commentary.

Athwal, H. (2015). “‘I don’t have a life to live’: deaths and UK detention.” Race & Class 56 (03): 50 – 68.

The Institute of Race Relations has over the last twenty-three years been monitoring the 508 deaths in custody in suspicious circumstances of individuals from BME, migrant and refugee communities, which rarely make the headlines and for which no person is ever convicted (to be published as the report Dying for Justice). Here, in an extract, the author examines the culture of racism and the impact of privatisation and sub-contracting in the detention and deportation of ‘failed’ asylum seekers. In case after case it exposes how the vulnerable, mentally- and physically-ill are neglected – leading to deaths by self-harm and inadequate treatment. The death during deportation of Joy Gardner, which involved disproportionate and reckless use of force, is examined in depth. The use of equipment of control for those who are clearly fearful of being forcibly returned, remains a vexed issue.

Cabot, J. A. (2014). “Problems Faced by Mexican Asylum Seekers in the United States.” Journal on Migration and Human Security 2(04): 361 – 377.

Violence in Mexico rose sharply in response to President Felipe Calderón’s military campaign against drug cartels which began in late 2006. As a consequence, the number of Mexicans who have sought asylum in the United States has grown significantly. In 2013, Mexicans made up the second largest group of defensive asylum seekers (those in removal proceedings) in the United States, behind only China (EOIR 2014b). Yet between 2008 and 2013, the grant rate for Mexican asylum seekers in immigration court fell from 23 percent to nine percent (EOIR 2013, 2014b).

This paper examines—from the perspective of an attorney who represented Mexican asylum seekers on the US-Mexico border in El Paso, Texas—the reasons for low asylum approval rates for Mexicans despite high levels of violence in and flight from Mexico from 2008 to 2013. It details the obstacles faced by Mexican asylum seekers along the US-Mexico border, including placement in removal proceedings, detention, evidentiary issues, narrow legal standards, and (effectively) judicial notice of country conditions in Mexico. The paper recommends that asylum seekers at the border be placed in affirmative proceedings (before immigration officials), making them eligible for bond. It also proposes increased oversight of immigration judges.

Noferi, M. L. (2014). “Making Civil Immigration Detention ‘Civil,’ and Examining the Emerging U.S. Civil Detention Paradigm.” Journal of Civil Rights & Economic Development 27: 101 – 154.

In 2009, the Obama Administration began to reform its sprawling immigration detention system by asking the question, “How do we make civil detention civil?” Five years later, after opening an explicitly-named “civil detention center” in Texas to public criticism from both sides, the Administration’s efforts have stalled. But its reforms, even if fully implemented, would still resemble lower-security criminal jails.

This symposium article is the first to comprehensively examine the Administration’s efforts to implement “truly civil” immigration detention, through new standards, improved conditions, and greater oversight. It does so by undertaking the first descriptive comparison of the U.S.’s two largest civil detention systems — immigration detention and sex offender civil commitment — to ascertain the value of the “civil” label of detention reform. It finds the emerging civil detention paradigm to be an incarcerative model presuming round-the-clock confinement but with lower security, as well as increasing, near-criminal procedural protections. Thus, the “civil” label of reform has little meaning, either to the individual’s deprivation of liberty or the expressive message communicated. More meaningful and more “civil” reform would be to implement a system that detains less, not just better. Looking forward, I offer a prescriptive framework for a civil detention system — one that detains far less frequently, for shorter periods, and in non-secure facilities not constituting “detention” as traditionally conceived.

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