Intended to Be Cruel: On Ana Raquel Minian’s “In the Shadow of Liberty”

EVERY DAY, the United States detains approximately 35,000 immigrants in county jails, government detention facilities, and private prisons. Detained immigrants include people with long-term ties to their communities, as well as newly arrived asylum seekers, victims of torture and trafficking, and women and children, the majority of whom have never committed crimes. In fact, the United States stands out as operating the largest immigration detention system in the world. Most Americans are unaware of these facts. If they take notice, they might assume—wrongly—that if immigrants find themselves behind bars, it is for good reason. Most rarely stop to wonder why, if immigration is a civil matter, so many immigrants languish in prisons for months and even years. Few ask how this system of incarcerating immigrants came to be.

Stanford history professor Ana Raquel Minian’s new book, In the Shadow of Liberty: The Invisible History of Immigrant Detention in the United States, answers that last question. Rather than provide a treatise teeming with dry facts and figures, Minian illustrates the trajectory of immigrant detention through the stories of individual people, all of them compelling, many of them profoundly devastating. Using a historian’s long view, Minian offers a historical narrative that makes sense of our current immigration detention system.

The history begins in 1900 in China with Fu Chi Hao. Chi Hao’s father converted to Christianity after a British missionary doctor treated him for an intractable illness. Thereafter, Chi Hao’s family moved to a mission near Beijing. After his college graduation, Chi Hao became a Christian teacher at a mission associated with Oberlin College.

Turn-of-the-century China was besieged by conflicts over imperialism, giving rise to the Boxers, a group of young martial artists who sought out foreigners, looted their homes, and brutally massacred them. Although Chi Hao heard the warnings, he refused to abandon his fellow teachers and friends, preferring to die with them. Only when the government ordered them to leave did he join the exodus, narrowly escaping death after receiving an alert from a Chinese soldier. Afterwards, he fled on foot and walked over 300 miles to reach safety. The experience left him anguished and desolate, especially after learning that his parents had taken their lives to avoid a worse fate. Finding himself alone, Chi Hao accepted an invitation from a former teacher to travel to the United States and study at Oberlin College. He and another Chinese teacher boarded a ship bound for San Francisco. They carried with them letters and other personal effects belonging to the martyred missionaries, which they hoped to deliver to their families.

Not surprisingly, the pair’s reception in San Francisco was anything but welcoming. Chinese immigrants had been arriving in California in significant numbers, largely due to rebellion in China’s Guangdong province, but also because of the Gold Rush and reports that enormous wealth could be reaped. In the 1870s, white Americans claimed that newly arrived Chinese laborers were stealing jobs and undercutting wages—familiar, discredited tropes that still have political currency today. As anti-Chinese sentiment raged, Congress passed the Chinese Exclusion Act of 1882, barring Chinese laborers from entering the country. Although the law contained limited exceptions for students and teachers, officials in San Francisco found administrative errors in the teachers’ documents and did not allow them to disembark the ship. Without a doubt, anti-Chinese fervor contributed to the officials’ decision.

For several weeks, the two Chinese teachers remained locked aboard the ship. When they were finally allowed to step on land, they were led to a detention shed owned by the Pacific Mail Steamship Company. It was filthy and putrid-smelling. There were no tables, chairs, or other amenities, only four-tiered bunk beds; the shed was built for 200 but housed twice that many. Chi Hao felt as though they were treated like animals. Had it not been for the intervention of the teacher who invited them to Oberlin, the two would have been deported or left abandoned for months, if not years.

Sadly, as Minian demonstrates, Chi Hao and K’ung Hsiang Hsi’s detention experiences are far from aberrational; the faces and circumstances change, but the mistreatment repeats itself again and again among multiple nationalities and across geographies and time periods. Minian introduces readers to Ellen, a German Jewish woman accused of spying during the Cold War; Gerardo and his wife Julia, two Cubans who fled the economic hardships of Castro’s regime and joined the Mariel boatlift in the 1980s; Yolande, a Haitian immigrant escaping the terrifying reprisals following the coup that deposed President Jean-Bertrand Aristide in the 1990s; and Fernando, a Guatemalan asylum seeker who took flight with his family in 2016 after gang members murdered his son and threatened him. What emerges through these stories is a narrative showing a ruthless and morally dubious detention system.

In The Shadow of Liberty makes several interesting observations about the way the US immigrant detention developed. First, Minian points to the legal fiction used to determine whether immigrants “entered” the United States. Immigration law once distinguished between deportable and excludable immigrants: immigrants were deportable if found in the US interior and excludable if they arrived by ship, plane, or vessel. The law indulged in the fiction that excludable immigrants had not “entered” the country—a significant distinction because deportable immigrants were accorded due process rights while excludable immigrants were not, thus allowing excludable immigrants to be held indefinitely until entry could be decided. Although immigration law no longer applies these categories, the notion of limited rights at or near the border, as well as in places like Guantanamo Bay, persists today. Indeed, the concept gave the United States license to torture perceived “enemy combatants” after 9/11.

Second, Minian notes the muddied borderline between immigration detention and criminal incarceration. While some politicians might argue otherwise, asylum seekers who arrive at the border without legal status have not committed a crime—US asylum law expressly permits asylum seekers without status to apply for relief. Nevertheless, asylum seekers arriving at the border are regularly detained and housed alongside convicted felons. Their only distinguishing feature is the color of their jumpsuits.

Such imprisonment is unconscionable when applied to asylum seekers who have fled persecution. They often exit their countries due to urgent circumstances following traumatic events. Such was the case with Fernando. He was still grieving the loss of his son when he was placed behind bars.

Add to the trauma precipitating an asylum seeker’s departure the exhaustion after a treacherous journey, one likely filled with hardships. When immigrants arrive, they expect and hope for safety and welcome. Instead, they are often met with incarceration, exacerbating the suffering they have already endured. It is not surprising that some immigrants choose to abandon their cases and self-deport; in some cases, they take their lives rather than face prolonged imprisonment.

Minian vividly shows, however, that immigrant detainees aren’t the only ones scarred by the system. The children of detained immigrants also suffer irreparable harms. Gerardo and Julia’s story is a case in point. The US government incarcerated them for possession of marijuana belonging to a roommate and placed their young children in foster care. The family was separated for years. Despite the parents’ efforts to reunite upon release, they never regained cohesion as a family. Tragically, the young children left behind ultimately entered the criminal justice system.

Also troubling is the way the detention system is applied more stringently to people of different races, often combined with chauvinistic, anti-immigrant sentiment. Minian surmises that Chi Hao and Hsiang Hsi received severe treatment because of their Chinese ancestry. Poorer and darker than their fellow countrymen who preceded them decades earlier, Gerardo and Julia were greeted with imprisonment while their predecessors received warm welcomes. Yolande, a Black Haitian immigrant who also tested positive for HIV, received even more severe treatment in Guantanamo.

Another corollary to the system is the way it operates as a barrier to legal representation. As Minian points out, detention facilities are often located in remote areas, far away from family networks as well as potential counsel who might assist immigrants with their cases. Without legal representation, immigrants have difficulty navigating the complexities of immigration law. According to a study by the American Immigration Council, immigrants in detention were less likely than their nondetained counterparts to obtain representation. Only 14 percent of detained immigrants acquired legal counsel, compared with two-thirds of nondetained immigrants. If they did obtain counsel, they were more likely to prevail. That same study found that detained immigrants who had counsel in custody hearings were four times more likely to be released from detention.

Yet most immigrants are not fortunate enough to obtain representation. They waste away in prisons, waiting for their cases to be heard. At best, the institutions holding them operate as warehouses. At their worst, as evidenced by numerous studies, detention facilities are terrifying spaces where detainees are likely to receive rotten food, substandard medical care, and physical and psychological abuse. A recent report conducted by Physicians for Human Rights, Harvard Medical School, and Harvard Law School’s Immigration and Refugee Clinical Program found rampant use of solitary confinement, despite the government’s own directives and guidelines limiting isolation to cases of last resort. Indeed, Minian calls immigrant detention facilities “black sites” that operate outside the law, not unlike Guantanamo.

Ostensibly instituted to ensure that immigrants present themselves at court hearings, immigrant detention is an unnecessarily blunt tool. As Minian points out, the United States has numerous less punitive ways of ensuring court appearance and compliance with immigration laws. The government can parole immigrants, release them on their own recognizance, or track them electronically, though surveillance methods are controversial. Instead, the government continues to detain significant numbers of people, costing US taxpayers. According to Minian, in fiscal year 2018, the United States spent a walloping three billion dollars on immigrant detention.

Readers might ask, If the immigration detention system is so fraught, why does the United States use it? Why subject immigrants to such cruelty?

Minian concludes that the system is, in fact, intended to be cruel. It is set up to disincentivize people from attempting to make the journey and seek asylum in the United States. Such was the case when the United States incarcerated Gerardo and Julia after the Mariel boatlift. It was also the case when the Trump administration began its zero-tolerance policy of separating families at the border. The US government deludes itself into believing that hardship will deter people from coming to the United States. Such deterrence policies have never worked. Nor will they ever as long as countries around the world experience extreme violence, severe poverty, oppressive authoritarianism, and the escalating perils of climate change. In the words of Somali British poet Warsan Shire, “[N]o one leaves home unless / home is the mouth of a shark.”

There is yet another reason why the US maintains this detention system—because the public doesn’t clamor against it. As noted above, the public is largely unaware of it. Detention facilities are located in remote areas, far away from public view or oversight. Thus, immigrants are conveniently neglected and forgotten. In presenting their histories, however, Minian does not allow us to forget them. In the Shadow of Liberty sheds light on this shadowy system and brings to life people’s suffering through their stories.

Indeed, as Minian points out, it is the stories of individual people that have periodically led the United States to shift away from carceral systems. It led to Ellen’s release from detention, even as her case progressed up to the US Supreme Court; it also led to the end of the zero-tolerance policy—if not the end of family separation. The key reason for the policy change was public criticism. Minian suggests that if the United States moved away from severe detention policies in the 1950s, it could do so again. Minian might have written about the national abolitionist movement, an effective network comprised of advocates, many of them formerly incarcerated, who work alongside lawyers and activists to dismantle the immigrant carceral system. Organizations and coalitions such as Dignity Not Detention, Freedom for Immigrants, and Detention Watch Network, to name a few, work tirelessly to free immigrants from this inhumane system. It is through their work and the testimonies of individual people that we may see more humanity in the treatment of immigrants.

Readers might ask, however, what the United States should do about the increasing numbers of migrants arriving at the US-Mexico border. Although Minian does not answer this question, the answer cannot be to vilify them by calling them criminal hordes who are invading our country. It cannot lie in detaining them, requiring them to remain in Mexico as they wait for processing, or worse, expelling them from the country without a hearing as we did under Title 42. The answer must be to listen to their stories as part of the fair application of asylum laws and to allow for efficient adjudication of their cases at the border. We need not resort to detention unless it is necessary to protect against people who commit crimes. This reader can’t help but imagine a different outcome for Chi Hao if officials had listened to his story.

In the Shadow of Liberty is well researched, highly readable, and thought-provoking. It is also timely. Immigration, particularly the question of how to treat asylum seekers arriving at the border, has arisen as a major contentious issue in this year’s presidential election, one where a major candidate is promising the return of “Operation Wetback,” concentration camps, and mass deportations. Regardless of who occupies the seat at the White House, this book will remind us to treat immigrants with humanity.