Detained Immigrants, Excludable Rights: The Strange Devolution of U.S. Immigration Authority, 1882-2012

Abstract

“Detained Immigrants, Excludable Rights” analyzes how plenary power, as a form of discretionary authority, enabled U.S. immigration authorities to initiate, expand, and privatize a system of immigration detention over the past 130 years. While in theory plenary power privileges the executive branch, in practice, plenary power has devolved to privilege immigration bureaucrats, allowing the bureaucracy to occupy a uniquely autonomous role in U.S. government. This thesis looks specifically at how plenary power privileges bureaucratic decision-makers to become “immigration judges,” invoking sovereign authority with little recourse for immigrants and almost no judicial oversight. It also examines how plenary power faced, and continues to face, opposition from both the government and the public, and how this opposition has served as a crucial check on bureaucratic power.

“Detained Immigrants, Excludable Rights” reveals that despite the many shifts in leadership, bureaucratic structure, and policy, the doctrine of plenary power both influenced and drove the history of U.S. immigration detention. The three chapters of this thesis each focus on a separate location and catalyzing event for immigration detention. Chapter One analyzes the early years of the immigration bureaucracy and the foundations of plenary power, looking first at the Chinese Exclusion cases, then at the various administrations of Ellis Island, to reveal how the late 19th century and early 20th century created foundations for the discretionary authority of immigration officers. Chapter Two examines the Mariel boatlift as a national refugee crisis that sparked the rebirth of detention. In a political moment when the United States desperately needed to assert its authority and control, the executive branch looked to plenary power to generate dramatic new immigration policies that would transform how the nation approached immigrants. Finally, Chapter Three assesses the dramatic expansion of immigration detention following Reagan’s War on Drugs and the terrorist attacks of 9/11. I argue that while the language of security came to define immigration policy in the 1990’s and 2000’s, immigration detention became a tool to propel both political and corporate interests rather than the interests of public safety.