The Legality of Detaining Refugees in the United States


The United States introduced the detention of aliens along with immigration control measures in the late nineteenth and early twentieth centuries. Detention was integral to the immigration inspection process; it facilitated departure in those instances where an alien was denied admission into the United States. After falling into administrative disuse in the 1950’s, government officials revived alien detention as a policy in the 1980’s in response to the influx of Cubans and Haitians who were seeking political asylum in the United States.

However, the United States designed the new detention policy to do more than facilitate deportation; it was also to deter other aliens from coming to the United States. The prospect of incarceration, sometimes for a prolonged period, was supposed to discourage further arrivals. A few other countries also elected to pursue a policy of “humane deterrence” by confining refugees for the purpose of deterring others. To the officials who enacted these policies, however, it was of no moment that this form of deterrence was at odds with international and domestic law. Little attention was paid to the entitlements of refugees, particularly the right to apply for asylum, the right not to be penalized or unnecessarily restrained in one’s movements, and the right not to be returned to territories where persecution awaits.

This article discusses the history of alien detention in the United States, particularly its revival in the 1980’s. It also describes the magnitude and character of detention in the United States and in selected other countries. Finally, the article analyzes the legality of the detention policy under principles of ad-ministrative law, statutory and treaty entitlements respecting refugees, theU.S. Constitution, and customary international human rights law. Finding the policy wanting, the author makes recommendations for intervention and change.

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