Immobilizing Migrants

César Cuauhtémoc García Hernández* June, 2026

The Migrant’s Jail: An American History of Mass Incarceration. By Brianna Nofil. Princeton & Oxford: Princeton Univ. Press. 2024. Pp. xiv, 309. $32.

Introduction

In March 1878, as the United States was in the midst of a global economic crisis,¹ The San Francisco Illustrated Wasp published a cover image that fit neatly into the racist political discourse of the moment.² A single government law enforcement official, dressed in a bowl hat and knee-high dark coat, its sleeves molded onto his thick arms, sorts Chinese men. The officer pulls the Chinese men from beds stacked four high. Some are asleep, others wait their turn, and one looks bored as he smokes from a long pipe. The officer clutches one man by his queue, the long braid that was typical of many Chinese men during the nineteenth century. Unlike his counterparts in bed, this man at least appears full of energy. His legs are firm, and his feet are planted on the ground in a futile attempt to avoid suffering the punishment he can now see: admission to the county jail. One after another Chinese man has led the way, creating an increasingly shapeless huddled mass of bodies. “Out of the frying pan into the fire,” the caption reads.³ The Wasp was far from the only voice for anti-Chinese racism in the late nineteenth and early twentieth centuries. Sometimes the attacks left the printed pages. Throughout the West and Mountain West, white people routinely targeted nearby Chinese residents with violence that sometimes turned deadly.⁴

As “the most widely read magazine west of the Rockies,” The Wasp, and the messages it published, carried special significance.⁵ For that reason, it is notable that Brianna Nofil⁶ includes this image in The Migrant’s Jail: An American History of Mass Incarceration, a deeply researched addition to the growing body of scholarship on migrant incarceration (p. 50). Nofil, a historian, traces the extensive involvement of county governments in immigration law enforcement over the last 150 years. Rather than serving as passive accessories to federal interests, Nofil shows that county officials were actively involved in the development of federal immigration law enforcement. Through the power of the sheriff, county governments facilitated the federal government’s expansion in the late nineteenth and early twentieth centuries, and then influenced the direction that federal policy towards migrants took at the tail end of the 1900s (pp. 27, 196).

The pages of The Wasp neatly capture the historical trajectory that Nofil details. More than just another tabloid, it was a beautifully illustrated, punchy magazine that embraced the worst nativist sentiments of its time. Just three months before the issue highlighted in The Migrant’s Jail was published, The Wasp celebrated a Thanksgiving Day 1877 march through San Francisco in which labor unions pilloried Chinese migrants. “A more respectable body of men never marched through the streets of San Francisco,” the magazine claimed.⁷ Dignified as the crowd might have been, their politics were unmistakably retrograde. “[T]here can be no Chinese compromise on the part of Californians. The liberties and even the existence of the white race on this Coast are threatened,” the author added.⁸

Later, in the same edition as “Out of the frying pan into the fire,” The Wasp explained that police were enforcing a law requiring a minimum amount of space per person within a residence.⁹ As punishment for living in a boarding house where they lacked the required 500 cubic feet of air per person, occupants of the noncompliant residences were sent to a crowded county jail where each person had less than 100 cubic feet of “pure air.” Even for “the heathen,” this struck the writer as ironic. Still, something must be done to address “our Chinese problem,” another article on the same page described.¹⁰ If people are forced to live in more spacious quarters, housing will cost more, thereby exerting upward pressure on the wages Chinese workers earn. As such, punishing Chinese residents of San Francisco for violations of the minimum space ordinance “is a solution of the Chinese difficulty.”¹¹ But The Wasp did not want to see Chinese men confined in the county jail alongside other lawbreakers. “It will not do to crowd these institutions now. Chinese arrested for violation of the cubic air ordinance might be confined in a special place by themselves,” the article suggested.¹²

The Wasp was only one periodical, but its articles and graphics captured the tensions that Nofil describes in the long history of confining migrants. As the politics of migration shifted, jails owned and operated by local governments went from being touted as a solution to denigrated as a problem (pp. 58, 192). Several generations later, the process started over. Combining an impressive understanding of prior scholarship on jails and migration with original archival research, Nofil stitches together policy shifts from Washington, D.C., to the distant corners of upstate New York and south Florida. In the process of describing political dynamics in disparate locations, she reveals the important role that county jails took in turning xenophobia into on-the-ground confinement. Through jails, politicians turned racism (originally targeting Chinese persons) into the fuel of migrant imprisonment for more than 125 years. Along the way, courts made room within U.S. legal doctrine for a more expansive detention authority. Commanding new historical findings as fluidly as the development of legal doctrine, Nofil compellingly places migrants at the center of the U.S. fascination with incarceration.

Part I of this Book Review canvasses the major historical findings of The Migrant’s Jail to illustrate why jails took on such an important role in the evolution and expansion of immigration law enforcement. Part II describes the ideological commitments that jails promoted in their role as partners to the federal government in enforcing immigration law, which in turn bolstered the institutional development described in Part I. Part III deploys the lessons that Nofil’s work crystallizes to show how these ideological and operational moves shape our modern immigration incarceration system. In turn, it discusses what the use of jails to enforce immigration law looks like today, and what it could look like in the near future.

I. Why Jails?

Tracing the relationship between federal enforcement of immigration law and county control of jails across time allows Nofil to identify multiple pillars of this longstanding partnership through which both governmental entities benefit materially and politically. This Part explores those pillars to sketch the relationship between these law enforcement entities.

A. Federal Government Benefits

The federal government has dominated immigration law since the postbellum period of the late nineteenth century. As The Wasp’s writers and cartoonists make clear, much of the federal government’s early attempt to regulate cross-border mobility targeted Chinese persons. By the mid-twentieth century, the openly racist attacks on Chinese migrants had given way to political imperatives.¹³ Cold War era dynamics, dominated as they were by fear of Soviet influence, pervaded immigration law enforcement policy.¹⁴ In the first moments of the brewing standoff with the Soviet Union, federal officials made room in a network of federal facilities for people who were imagined to be national security threats. Ellen Knauff, who was born in Germany but traveled to the United States after marrying World War II veteran and U.S. citizen Kurt Knauff, was forcibly held at the Ellis Island immigration prison for years.¹⁵ Lawful permanent resident Ignatz Mezei, who lived in Buffalo, New York, met a similar fate after he spent nineteen months in Europe trying to reach his dying mother.¹⁶ In both instances, a majority of the Supreme Court sided with federal officials in their efforts to detain and exclude European migrants due to national security concerns.¹⁷

Eventually foreign policy considerations pushed federal immigration policy in the opposite direction. Instead of detaining European migrants, federal officials pulled back from their hardline approach. In a speech marking the first Veterans Day in the nation’s history, November 11, 1954, President Dwight Eisenhower’s attorney general, Herbert Brownell Jr., told a crowd at a naturalization ceremony in Ebbets Field—home to the Brooklyn Dodgers baseball team—that the Justice Department, which was responsible for enforcing immigration law at the time, would cease detaining migrants whose immigration status was under review. “The new detention policy is so far-reaching in scope and effect that the Department of Justice is discontinuing its six seaport detention facilities at New York, Boston, Seattle, San Francisco, San Pedro and Honolulu,” Brownell explained.¹⁸

Soon, immigration incarceration would transform from a coastal focus on perceived ideological threats to a southwestern focus on Mexicans, Cubans, Haitians, and Central Americans.¹⁹ Just like the late nineteenth-century fear of Chinese migrants, the concerns about Latin American and Caribbean migration that emerged in the late twentieth century paired fears of migrants as economic and racial threats.²⁰

As political needs changed, federal officials searched for a means of enforcing immigration law in a range of rapidly evolving circumstances. To do this, policymakers needed a strategy that prized flexibility. Detention beds needed to appear and disappear as migration policies and migrants’ practices changed. The Immigration and Naturalization Service (INS)²¹ turned to the Bureau of Prisons (BOP)—another Justice Department entity—for help (pp. 174–75). While the BOP’s network of federal prisons proved useful in locating sites for confinement when political and on-the-ground migration circumstances demanded them, the BOP suffered from the same limitation as the INS: Migrants and their advocates knew they could haul federal prison officials into court to complain about conditions of confinement or the fact of confinement itself (pp. 175–76).

Jails provided the flexibility that immigration officials wanted, Nofil explains (pp. 175–76). By partnering with jails, the INS could expand or contract the number of cells and beds available for its enforcement purposes in relatively short order. Equally valuable, as far as federal officials were concerned, was that jails were hard to track. As a general rule, each individual facility could only hold a small number of migrants.²² In addition, as features of county governments, jails were located in just about every community, large or small, in the nation (p. 85). Though that poses logistical problems for federal immigration officials, it creates greater challenges for migrants and advocates because people and legal problems become more widely distributed throughout the United States.²³ Advocates located in the nation’s major urban centers thus have limited access to people held in isolated outposts in localities across the nation.

The flexibility that jails offered federal immigration officials to adjust the number of people detained while making it harder for advocates to track migrants’ movements was valuable, but that benefit was augmented by a third feature of flexibility: legal oversight.²⁴ Owned and operated by county governments, jails are staffed by employees of state and local governments. As such, federal law has minimal reach inside county jails. In addition to the oversight provided by the U.S. Constitution, county jails and their staff are subject to a hodgepodge of state laws. Lawsuits claiming violations of those laws must be adjudicated in state courts. Plus, most county jails are overseen by the county sheriff and, in most of the United States, the sheriff is elected by citizens of the county.²⁵ Each component of jail decentralization presents an additional obstacle for migrants and advocates (pp. 194–95). And each obstacle for migrants and advocates is a benefit to federal officials interested in limited oversight and maximum flexibility.

Utilizing this flexibility, in 1995, INS officials at the Krome Service Processing Center, a federal immigration prison near Miami, moved detained migrants to jails across the southern United States in anticipation of a visit by a congressional delegation. “Maintaining a broad network of flexible detention sites not only allowed the agency to thwart organizing and distance migrants from legal aid; it gave the agency the flexibility to thwart and distance Congress,” Nofil writes (p. 188).

Partnering with county governments to detain migrants in local jails meant the federal government could flexibly operate the nation’s immigration prison regime. In the service of incarcerating migrants, operational flexibility led the way to operational autonomy: The federal government could do what it liked with minimal external oversight.²⁶ All of this rested on one pillar: whether county officials cared to help federal authorities meet their immigration policy objectives.

B. County Governments Benefit

Federal officials surely benefit from partnering with counties, but county governments are far from altruistic collaborators. Rather, counties receive vital material benefit and political value by jailing migrants on behalf of the federal government.²⁷

Nothing captures this more obviously than the money that moves from federal to local hands. Since the late nineteenth century, local governments have prized the flow of federal tax revenue to fund their own operations (p. 18). In the early 1980s, for example, Mayor George Mowad of Oakdale, Louisiana, imagined a partnership with the INS to host an immigration prison as the road to his rural community becoming the “boomtown of Louisiana” (p. 185). Two and a half decades later, residents of York County, New York, voted to expand their county jail in the hope that they could fill it with migrants sent by the Immigration and Customs Enforcement (ICE) agency, the federal agency that replaced the INS after the creation of the Department of Homeland Security (DHS) in 2003.²⁸ A few years later, county officials launched an initiative to release people charged with crimes specifically so that they could make room for ICE’s detainees. “The jail was understood, first and foremost, as a money-making project,” explains Nofil (p. 214).

More money meant more opportunities for sheriffs to profit from incarceration. Through the early twentieth century, it became accepted practice for sheriffs and wardens to sometimes take a cut of revenue derived from incarcerating people.²⁹ Though the practice originated outside the context of migrant incarceration, sheriffs contemplating a partnership with federal officials were surely aware that federal contracts might benefit them directly. Concerned that financial payments to sheriffs incentivized poor treatment and prolonged confinement, reformers pushed to stop the practice (p. 32). Indeed, direct payments to sheriffs were a source of scandal in northern New York counties that held Chinese migrants on behalf of federal authorities in the late nineteenth and early twentieth centuries (p. 32). As a result, many counties banned the practice years before the state legislature enacted a statewide prohibition.

In addition to the financial benefit to local governments (and some sheriffs), federal contracts for migrant incarceration brought political value to counties. Jails are expensive operations.³⁰ Facilities must be built and maintained. Staff must be hired, trained, and incentivized to stay on despite the difficult atmosphere in which they work. Regardless of the conditions in which people are incarcerated, confinement necessarily requires complicated networks of suppliers: Food vendors, construction contractors, and medical providers work inside jails and live nearby.³¹ A third layer of services remain outside the jail, but rely on its existence: restaurant workers, teachers, bank attendants, and others who provide the multitude of services that people with steady employment regularly use.³²

This tiered political economy becomes its own locus of pressure to maintain the federal revenue that makes life possible for the communities and municipalities that house these jails. Residents are invested in maintaining the federal support that provides jobs and services they value. Meanwhile, elected officials, including sheriffs, are invested in extending the federal support their constituents have come to rely on. The material benefit of federally financed incarceration becomes diffuse, and thus the economic foundation of ordinary life turns into an important component of the political support for policies that promote migrant incarceration. From elected officials to labor unions representing jail workers, federal revenue frequently attracts political support from divergent sectors (pp. 210–12).

Like any good scholar, Nofil rests on prior work by others. Mowad’s role in pushing Oakdale from an afterthought town in central Louisiana to a key player in immigration imprisonment policy for the last four decades has been written about before.³³ Likewise, Nofil does not break new ground in her treatment of the evolution of the legal doctrine concerning the power to incarcerate migrants.³⁴ But Nofil’s seamless interweaving of historical records with legal developments is where The Migrant’s Jail shines. Her work shows that officials at both the federal and county levels were motivated to promote more migrant detention by the political economy that developed around the county jail’s utility in service of federal immigration policies. But as important as political and economic benefits are, they merely help explain migrant incarceration’s long presence in county jails. For that reason, Nofil does not stop there.

II. Ideological Commitments

Money and politics certainly matter, but Nofil takes her analysis an important step deeper. The Migrant’s Jail also discusses how jailing migrants through partnerships with county governments promotes particular ideological commitments rooted in racist tropes and attempts to regulate the labor market. Unlike political and material benefits, immigration imprisonment’s ability to propel ideology gives it lasting power over and above peculiar political assessments and complicated economic calculations, both of which are liable to change from year to year and region to region. In Nofil’s treatment, political, economic, and ideological values combine to produce migrant incarceration’s persistence despite immense differences in population demographics and economic conditions.

A. Racialized Law Enforcement

In October 1877, just five months before publishing the image that Nofil shared, The Wasp took a wholly different position regarding a white migrant whose origin is never specified. Knowing no one—and seemingly nothing—about the place in which he has landed, he is quickly surrounded by “a vicious horde” that offers aid that proves far worse than its benefit. Taken to a well-fed labor broker with a penchant for cigars, the nameless “immigrant” pays thirty dollars—all that he carried, we later learn—and receives in return a promise of employment at a nearby farm. “I’m in luck,” the young migrant says to himself as he walks to the farm, blanket neatly rolled under his arm. But the promise of employment falls flat; the farmer tells him there is no work to be had there.

Penniless and with no other options for employment, the man returns to the labor broker to recover the finder’s fee. He has no luck there either. Instead, he gets a scolding and a foot to the rear. “We never return the fee . . . An’ we don’t want no back talk!,” the labor broker yells, as he pumps his arms for added thrust to the kick he gives the hapless migrant. Left “[a]n outcast from men, without money or friends,” the migrant resorts to crime. He steals a loaf of bread “[f]rom the opulent baker’s store.” Hungry, he takes a bite as he runs away, but he hardly has time to swallow because “[t]he policeman is soon at his lagging heels.” Off he goes to San Quentin, the California state prison, which is only the beginning of “his downward career.”³⁵ The reader is left to wonder whether the young man who stepped off the boat with a heart full of hope is ever able to turn things around. On the following page, The Wasp ’s writer claims that the fictional ordeal is based on reality. “Such things are occurring here every day,” he writes, but instead of targeting migrants, the police should go after labor brokers and others who prey on immigrants—“the vampires who keep them.”³⁶

Through its impressive graphics and unmistakable ideological positions, The Wasp makes visible the multiple dynamics—political, legal, and law enforcement—shaping migration in the United States during the late nineteenth and early twentieth centuries. The magazine’s sympathetic depiction of the white migrant emphasizes “the ‘narration of migrant sorrows,’” and graphically creates “a publicly visible space” through which “life experiences previously relegated to the periphery are shared, made visible, and validated.”³⁷

As the articles and illustrations that appeared in The Wasp suggest, jails took on an important role in punishing migrants in the late nineteenth and early twentieth centuries as part of a racist, class-centered ideological project.³⁸ The first two chapters of The Migrant’s Jail show how key policymakers explicitly embraced racist, anti-Chinese tropes to justify holding Chinese migrants in county jails. In the decades after the Civil War, congressional interest in migration almost exclusively targeted Asian migrants with an early and persistent focus on people of Chinese descent.³⁹ Along the West Coast, enforcement of the new federal laws had an obvious focal point: the ships arriving at San Francisco harbor from China.⁴⁰ For a time, immigration inspectors boarded ships to identify potentially excludable individuals before they stepped onto dry land. To the transoceanic shipping companies, though, this was not ideal. Government inspections required time in port, and the companies wanted their ships to spend as little time as possible at the harbor because there was no money to be made while docked.⁴¹ In a compromise that would foreshadow the private-public detention contracts that blossomed a century later, the Pacific Mail Steamship Company offered to detain potentially excludable passengers in a waterfront shed.⁴² Federal officials agreed. Soon it became evident that the company had little interest in the welfare of the people detained at the shed.⁴³ Conditions were so problematic that advocates and government officials alike condemned the company (p. 19).

Given that the largest Chinese populations were situated along the West Coast and most contemporary litigation arose there, it may be surprising that New York offered one such model, but Nofil’s historical account makes precisely this point. Far removed from the bustling waterfronts of New York City, sheriffs in upstate New York sensed opportunity in the federal government’s post-Civil War interest in apprehending, examining, and deporting Chinese migrants (pp. 17–18). Trying to reach the booming industrial centers of the Northeast, people of Chinese descent traveled across the northern United States and southern Canada in the hope of tapping job opportunities in the economically vibrant region.⁴⁴ Immigration officials soon followed. “Though the U.S. West received far more attention for its Chinese communities and its rampant anti-Chinese violence, more than three-quarters of Chinese apprehended between 1901 and 1903 crossed the border east of Ohio,” Nofil explains (p. 19). According to the New York State Prison Commission, focus shifted for upstate sheriffs. Federal immigration officials turned to the county jails that sheriffs operated, filling “Chinese jails” in four upstate counties—Essex, Clinton, Franklin, and St. Lawrence—with “Chinese prisoners” (pp. 19, 27).

Federal and county officials saw upsides to detaining Chinese people in county jails. To federal immigration officials, jails offered a ready solution to their interest in detention space. At the time, the federal government operated a handful of large sites that it used for detaining migrants, but almost all of these were in heavily populated cities (p. 25). Only one, the federal prison at McNeil Island, was not in a city; it was located off the coast of Washington state.⁴⁵ Given its location, McNeil Island was not of much value to immigration law enforcement plans oriented in the northeastern United States. By contrast, jails owned and operated by county governments provided confinement in strategically diffused geographic locations (p. 25). Though the county jails were billed as fit for short stays, Chinese prisoners were often held for much longer. Reviewing jail ledgers from New York’s Essex County, Nofil found that detention averaged almost four months in 1901 and 1902 (p. 19). Longer stays were fine as far as local officials were concerned. To them, “jailed Chinese people . . . were a potential commodity that the community should fight for” (p. 29).

Justified as a means of enforcing immigration law, “Chinese jails,” as Nofil has previously described them, swept broadly.⁴⁶ They detained Chinese citizens who had no formal legal attachment to the United States, but they almost certainly housed U.S. citizens as well.⁴⁷ Historical records claim that at least 5,714 U.S. citizens of Chinese descent entered the United States through Canada in the ten years from 1895 to 1905 (p. 23). Indeed, it was common for Chinese prisoners to claim U.S. citizenship. While immigration law enforcement officers prioritized detention and deportation, U.S. citizens could enter the United States freely.⁴⁸ The difficulty, at that point, was proving citizenship. Building on prior historical scholarship, Nofil explains that unpleasant as it was, many arriving Chinese people viewed this as preferable to navigating the administrative bureaucracy of immigration law.⁴⁹ Claiming citizenship, usually by virtue of having been born in the United States, meant moving from the realm of immigration inspectors into federal courts, where judges were much more open to hearing and assessing evidence pertaining to citizenship.⁵⁰

Sing Tuck, detained at a jail in Malone, New York, sought review of his citizenship claim all the way to the U.S. Supreme Court.⁵¹ Sing’s legal argument, which Nofil highlights in chapter one, revolved around the proper venue for making citizenship claims (pp. 33–37). The federal government argued that citizenship claims made by people who were believed to be excludable noncitizens should be heard by executive branch officials.⁵² Sing argued that only federal judges should review citizenship claims.⁵³ Though framed as a jurisdictional disagreement about who had the power to adjudicate a substantive claim to U.S. citizenship or another legal basis for entry—the executive branch or the judiciary—there was more to this issue.⁵⁴ The difference between waging high-stakes legal disputes before “administrators [who] were ‘captives of policy’” or “judges [who] were ‘captives of law’ ” was significant.⁵⁵ The customs collectors who had primary responsibility for enforcing anti-Chinese immigration laws during this period “approached these cases with skepticism, expecting the testimony to be fraudulent.”⁵⁶ Not surprisingly, people of Chinese descent arriving in the United States “dreaded the inspectors’ investigations.”⁵⁷ As a result, Chinese persons turned to the federal district courts, hoping for a more sympathetic decisionmaker.⁵⁸

Personally, judges were often no less hostile to Chinese persons than their administrative counterparts. But professionally, they took a different approach to immigration law. Socialized to prize the procedural protections of the U.S. legal system’s common law tradition, federal judges ensured that Chinese parties to litigation enjoyed two key features of federal law: habeas corpus and evidentiary rules.⁵⁹ Through writs of habeas corpus, Chinese persons could challenge their confinement and exclusion in federal courts. Though federal judges could not be said to have been immune from anti-Chinese bias,⁶⁰ they were certainly insulated from political pressures as a result of their constitutionally protected lifetime tenure.⁶¹ Once legal proceedings were underway in federal district courts, federal judges applied ordinary principles of evidence in cases involving Chinese litigants. Such a simple posture was in fact remarkable (and valuable to litigants), because it deviated from administrative practices in which immigration inspectors imposed evidentiary requirements that were “more stringent” than required by law, as historian Lucy Salyer noted in her monumental study of the development of U.S. immigration law.⁶²

On a practical level, whether claims about U.S. citizenship or exclusion were first heard by administrative officials or judicial officers also had a direct impact on the likelihood that a Chinese person would continue sitting in jail. While federal courts typically recognized a right to counsel and a right to call witnesses, immigration inspectors either did not or did so with restrictions often rooted in racism, posing substantial obstacles to Chinese litigants.⁶³ By contrast, federal judges, almost certainly influenced by the presence of trained counsel and supportive witnesses, routinely granted bond.⁶⁴ As a result, Chinese persons could litigate their legal claims while living and working freely. In the six months before Sing’s case began its legal journey to the U.S. Supreme Court, 326 Chinese persons detained in Malone, New York, successfully sued for their freedom by claiming U.S. citizenship (p. 35).

Whatever fortune Chinese litigants found in the lower federal courts changed once they reached the Supreme Court. In United States v. Sing Tuck, the majority of justices sided with the government.⁶⁵ The Court held that something more than “[a] mere allegation of citizenship” is required for jurisdiction to attach in a federal district court.⁶⁶ Instead, citizenship claims, like all challenges to exclusion or deportation, should first be adjudicated by immigration officers.⁶⁷ In his dissent, Justice Brewer, joined by Justice Peckham, pointed out that the procedure for raising citizenship claims in immigration tribunals required presentation of two witnesses approved by the immigration officials.⁶⁸ Moreover, the procedure had an undeniable racial slant. “No such rule is enforced against an American citizen of Anglo-Saxon descent, and if this be, as claimed, a government of laws and not of men, I do not think it should be enforced against American citizens of Chinese descent,” Justice Brewer wrote.⁶⁹

Targeting Chinese persons was certainly an important early facet of federal immigration officials’ embrace of jails, but it was not the only time that immigration agents would partner with county jails to implement a patently race-based confinement policy. At the tail end of the twentieth century, the INS partnered with jails to target Haitian citizens, almost all of whom were Black.⁷⁰ From 1957 to 1986, Haiti was led by either Francois Duvalier or his son Jean-Claude Duvalier. Both oversaw years of political repression, violence, and economic failure.⁷¹ In the waning years of the Duvalier family’s grip on the Haitian government, hundreds of thousands of Haitians fled the island. Over two hundred thousand Haitians moved to the United States from 1960 to 1990.⁷² Most of this migration took place during the presidencies of Papa Doc, Francois Duvalier’s nickname, or Baby Doc, as his son was known.⁷³

The Haitian migrants were met with large-scale confinement. This treatment was consistent with longstanding fears of Black people, but was also compounded by the new arrivals’ migrant status.⁷⁴ By the end of 1973, over 100 Haitians were being held in various county jails in South Florida.⁷⁵ “Why are Haitian[s] jailed[?]” asked a sign carried at a Miami protest in 1974. “They are in jail because they are black,” responded Reverend Jacques Monpremier, director of the Haitian Refugee Center.⁷⁶ If released into the community without a medical evaluation, the Haitian migrants might start “an epidemic,” claimed an epidemiologist who worked for Florida’s Department of Health and Rehabilitative Services.⁷⁷ The head of the INS office in Miami, Richard Gullage, lamented that the agency had no other options. “We’re not in the business of jailing people, but we have no other place to put them,” he told reporters in 1979.⁷⁸ Operated by different county governments, South Florida jails offered bed space to the INS on different terms. In Palm Beach County and Dade County, where Miami is located, jail officials charged the INS from twelve to twenty-four dollars per person per night to hold migrants. Rural Collier County, which was about a two-hour drive from downtown Miami, offered a lower price. For eight dollars per day, the Collier County Stockade in Immokalee would detain migrants on behalf of the INS.⁷⁹

“The county jail in Immokalee, Florida, became the epicenter of Haitian detention controversies,” writes Nofil (p. 132). Detained Haitians complained about the poor quality of food, limited information about their legal status, and lack of hygienic living facilities (p. 142). When asked about allegations that detained migrants had suffered violence at the hands of jail staff, warden James Lester did not deny it: “We had lots of fun there for a few minutes. There was some bloodshed and we cracked some heads,” he told a reporter (p. 143). Intent on resisting their confinement, Haitians participated in hunger strikes and lawsuits organized with supporters on the outside (pp. 133–34). The INS was not happy. “They were causing embarrassment to the Immokalee facility,” complained an INS official (p. 134). In response, the agency transferred Haitians to other county jails.

But controversy does not necessarily lead to a policy retreat. On the contrary, multiple presidential administrations directed immigration officials to incarcerate as many Haitians as possible, working with Congress to increase funding for Haitian incarceration.⁸⁰ Starting in 1978, while Jimmy Carter was president, the INS adopted a sweeping detention policy. “All newly arriving Haitians, true abscondees and those in illegal status coming to the Service’s attention for the first time will be placed in detention,” the head of the INS office in Miami wrote to staff in a memo.⁸¹ Leaving no doubt that exceptions were to be rare, the memo explained, “[a]ny deviation from the above will be only for the most unusual and meritorious reasons and the decision will be made solely by the District Director or Acting District Director.”⁸²

When Haitians continued coming to the United States, the Reagan Administration adopted a two-pronged strategy: interdict and detain.⁸³ In 1981, President Reagan instructed the INS and Coast Guard to jointly patrol the Caribbean Sea and Gulf of Mexico to stop vessels carrying migrants before they reached the territorial United States.⁸⁴ Though Reagan’s directive did not explicitly identify Haitians as its target, historian Carl Lindskoog notes that the administration’s internal communications clarify that Reagan’s team was primarily concerned about Haitians.⁸⁵ Starting that same year, the administration’s policy demanded detention of any Haitian who got through the marine patrols, echoing the Carter Administration’s position. The Reagan Administration pushed further in opposing any efforts by Haitians to obtain a bond that would result in their release from confinement.⁸⁶ Soon, the INS was holding more Haitian migrants for longer periods. According to a government report, over 1,300 Haitians had been held for periods between nine and twelve months as of June 1982.⁸⁷

Mandatory, no-bond incarceration of Haitian migrants reversed the limitations on confinement that Attorney General Brownell announced in 1954.⁸⁸ It also spurred a sudden demand for detention facilities that could house people for months on end.⁸⁹ To accomplish the Reagan Administration’s concretization of a detention policy, federal officials turned to an array of facilities, including county jails.⁹⁰ Just as they had decades earlier, county jails offered immigration officials the flexibility to quickly alter the size of the physical infrastructure permitting detention operations (p. 119). Analyzing relationships between federal immigration officials and local counterparts, Nofil illustrates that the INS relied heavily on jails in the late 1970s, even as it complained that doing so “created logistical and legal issues” (p. 127). In October 1981, the INS reported contracts with jails in Leesburg, Florida, and New Orleans to detain a few dozen Haitian migrants.⁹¹

Teaming up with local officials to detain migrants in jails allowed immigration officials to add a racial valence to the political and economic value that their partnership offered. In light of the explicitly racist discourse of the previous century, Nofil could have easily overlooked the racial dimension of migrant jailing in the late twentieth century. To her credit, she not only spots it but also identifies its centrality to the broader development of immigration jailing. Policies liberalized toward European migrants but simultaneously hardened toward Black migrants, she explains (p. 120). This was no coincidence. Nofil shows that it was instead “the architecture of criminal punishment” being aimed at the first large group of Black asylum seekers in the nation’s history (p. 120).

B. Labor Market Impact

In addition to their contributions to a project of racial subordination, jails also played an important role in federal authorities’ attempt to regulate the U.S. labor market (pp. 107–08). From 1942 to 1964, the United States welcomed hundreds of thousands of Mexican citizens annually as guest workers.⁹² Through a partnership with the Mexican government, immigration officials in the United States encouraged the arrival of poorly paid manual laborers for work, primarily in the agricultural fields of the southwestern United States.⁹³ With the government’s permission in hand, Mexican migrants could live and work in the United States until the seasonal labor for which they had been contracted was completed.

The Bracero Program, as this guest worker initiative was called, was not altruistic.⁹⁴ Instead, it responded to the labor shortages caused by the mass mobilization of working-age adults into the military and factories supporting military production during World War II and the early years of the Cold War.⁹⁵ For young Mexican men, the Bracero Program offered the promise of higher wages compared to those available in their home communities.⁹⁶ However, those higher wages were often accompanied by exploitative working conditions.⁹⁷ Indeed, the U.S. federal government’s stance toward Mexican braceros suggests that they were viewed as little more than commodities that could produce value.⁹⁸ According to a governmental commission, Mexican braceros were desirable precisely because they were “ready to go to work when needed; to be gone when not needed.”⁹⁹

Despite agreement by both national governments, enthusiasm for the Bracero Program was not unanimous. In contrast to their counterparts in Mexican politics, Mexican business leaders saw little upside to the initiative.¹⁰⁰ The loss of hundreds of thousands of able-bodied, working-aged men¹⁰¹ meant a smaller pool of potential workers.¹⁰² As such, business leaders opposed the Bracero Program’s formation.¹⁰³ After losing that political battle, they shifted to complaining about the unauthorized Mexican emigration that developed alongside the Bracero Program.¹⁰⁴

In the United States, opposition to the Bracero Program came largely from labor groups. Unions, long mired in racist and xenophobic positions, opposed organizing Mexican workers.¹⁰⁵ So too did groups of braceros who claimed that their unauthorized migrant compatriots “lowered wages and worsened working conditions.”¹⁰⁶

Responding to competing pressures related to the expansion of Mexicans’ access to the U.S. labor market, federal officials in the United States adopted a carefully calibrated immigration policy. The Bracero Program would encourage Mexicans to migrate to the United States, while the INS’s enforcement practices would encourage them to leave.¹⁰⁷ In the hope of ensuring that Mexican migrants would leave “when not needed,”¹⁰⁸ the United States, with the cooperation of Mexican officials, launched a widespread policing campaign halfway through the Bracero Program’s lifespan: First, Border Patrol agents would try to apprehend more migrants, and second, the two countries’ governments agreed to move migrants away from the border. ¹⁰⁹ Instead of driving Mexicans to the international boundary where they would walk into Mexican border towns, the United States began operating airplanes and ships to transport Mexicans to communities in the Mexican interior.¹¹⁰ In its first year of operating under an INS contract, the Flying Tiger Line flew more than thirty-four thousand people to Guadalajara, Jalisco.¹¹¹ Within a few years, the INS contracted with a shipping company called Transportes Marítimos Refrigerados, S.A. to transport at least two thousand people per month from Port Isabel, Texas, to Veracruz, Veracruz.¹¹²

Moving so many people naturally required that these individuals be detained somewhere while they awaited forced transit. As such, U.S. immigration officials boosted their detention capacity (pp. 107–08). Federally-owned detention facilities soon reached their limit, at which point local governments got involved; for $1.50 per person per day, local officials offered to make room in their jails. Some counties even expanded their detention capacity to woo federal contracts.¹¹³ By relying on local government partners, the INS was able to detain 102,523 people in 1949, of which 53,262 were detained in facilities not owned by the INS.¹¹⁴ Many of the 211 facilities that the INS relied on were nothing more than county jails.¹¹⁵ Despite its extensive network of confinement facilities, the INS reported that year that the jails it used “remain overcrowded.”¹¹⁶

As the INS struggled to identify a suitable confinement strategy, political sentiment in the United States continued to turn against Mexican migrants. The United States was being invaded by Mexican laborers, claimed INS Commissioner Joseph Swing, as he launched a multiyear, interstate, federal-local partnership to detain and deport Mexican migrants (p. 108). Operation Wetback, as the INS initiative was formally known,¹¹⁷ lived up to the racist vision that its name suggests. In partnership with state and local officials, the INS tracked down and arrested more than eight hundred thousand people of Mexican descent in communities throughout the U.S. Southwest as well as in a handful of cities with large Mexican populations outside of the Southwest (p. 108). Though the program was justified as an attempt to deport Mexican citizens who lacked legal authority to live in the United States, INS agents and their state and local partners were far less discriminate in its implementation. An unknown number of U.S. citizens of Mexican descent were among those who were forcibly removed from the United States.¹¹⁸

While removal was the ultimate goal, people rounded up as part of Operation Wetback were detained in the days between apprehension and deportation. Over half a million wound up in one of roughly 300 jails that the INS relied on during this period (p. 108).

C. Crime Control

Jails also offered federal officials the opportunity to position immigration law enforcement as essential to controlling crime. Through crime, federal officials could bill reliance on local jails as key to public safety. In this way, confinement in local facilities could shift from an economic to a political imperative (p. 79). “Not all refugees are criminals, yet,” the mayor of Miami Beach, Murray Meyerson, told President Jimmy Carter in 1980 (p. 145). The jail offered a suitable, local solution to the threat Meyerson articulated. Jails gave the INS flexible overflow space as well as a ready-made destination for people suspected of violating immigration law who were apprehended far from a federally owned detention facility.¹¹⁹

Jails also provided politically valuable symbolism in addition to their punitive uses. By allowing federal immigration agents into jails, local officials could turn their physical facilities into sites of migrant sorting. But instead of helping the INS target people fleeing poverty or persecution, jails provided a public safety justification. Jails held “people who had been proven, at best, morally unfit and, at worst, dangerous, by virtue of a criminal conviction” (p. 148). Easily identifiable and immobilized by the jail’s security infrastructure, migrants detained inside jails were easy targets.

All federal officials needed was the permission of their local counterparts; without that, they could not get inside the jail facilities. After key legislative and policy maneuvers by the federal government,¹²⁰ local officials proved only too willing to cooperate. Fourteen years after Miami Beach’s mayor warned President Carter of the crime threat that migrants posed, Bill Clinton, the next Democrat to occupy the White House, signed a bill bridging the political and economic value of using local jails for migrant detention. The State Criminal Alien Assistance Program, created in 1994, formalized the federal government’s reimbursement of costs incurred by state and local prisons and jails to detain migrants (p. 171).

Two years later, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), creating a legal mechanism that permitted local law enforcement officers to perform the duties of federal immigration law enforcement agents under certain circumstances.¹²¹ These partnerships are known as 287(g) agreements, in reference to the section of the Immigration and Nationality Act in which the authority is housed.¹²² They allow local police officers and sheriffs’ deputies to identify potentially removable people for ICE.¹²³ Though few state or local governments entered into 287(g) agreements during the first decade in which they were authorized, the number of agreements in place grew substantially during Barack Obama’s presidency.¹²⁴ Despite fluctuations in the number of 287(g) agreements in effect at any given time, these partnerships have retained an important role for federal, state, and local entities alike. They remain critical to the federal government’s immigration law enforcement toolkit, while allowing state and local entities to signal that they are doing their part to promote public safety by facilitating removal of migrants who have encountered the criminal legal system.¹²⁵ ICE currently has 287(g) agreements in place with over 500 state, county, or municipal law enforcement agencies nationwide.¹²⁶ Of those, nearly half are in Florida.¹²⁷

The Migrant’s Jail is certainly a well-developed descriptive project, but Nofil subtly adds an important normative dimension to the book’s historical narrative. By discussing the multiple ideological commitments to the political and economic benefits these partnerships brought, Nofil helps explain the constancy of the relationship between federal and local law enforcement. Money and politics matter, and jailing migrants in county jails affects both, but Nofil incorporates important nuance to explain why county jails have been part of federal immigration law enforcement priorities for so long. The relationship between federal and local authorities has been sustained for such a long time because of the ideological goals that local confinement of migrants promotes. This is a compelling assessment for which scholars and advocates are indebted to Nofil. The multilayered review that she provides is likely to become a pillar of recent historical scholarship on immigration imprisonment. She does not, however, attempt to explain how the past reaches into the present, much less the future. As she is trained as a historian, and writing the first of what will hopefully be many books, that is neither surprising nor concerning. But in the careful, nuanced assessment of the past, Nofil reveals trends that can inform U.S. policy today and in the years to come.

III. Present and Future

Nofil’s account of the use of local jails as extensions of the federal apparatus of immigration law enforcement leaves no doubt that confinement has always been part of policing migrants. The flipside is also true: Migrants have long been a pillar of local incarceration practices. Grounded in the past, The Migrant’s Jail necessarily stops short of assessing the jail’s role in the present and future. This Review takes the next step and confronts the implications for our present and future.

A. Today

In the closing paragraphs of The Migrant’s Jail, Nofil asks, “What are the stakes of this history? Where does this leave us?” (p. 229). It is a fitting, yet unresolved, end to a compelling historical account of an overlooked aspect of immigration imprisonment.

Nofil asks the question, and the Department of Homeland Security is clear about its answer. The past that Nofil describes is very much the present. Only now, the policies that were at times sporadic or ad hoc have become deeply entrenched. Most of immigration law is civil, not criminal,¹²⁸ and yet a hallmark of criminal punishment—confinement—is a mainstay of immigration law enforcement. Explaining confinement’s position within immigration policing practices in 2019, I wrote, “Today, immigration imprisonment is the norm.”¹²⁹

Six years later, and almost a quarter century after the INS was abolished and replaced by ICE,¹³⁰ little has changed. Federal immigration authorities continue to rely heavily on jails to detain migrants. As of September 2025, there are over 150 carceral facilities owned by state or local governments in the agency’s inventory.¹³¹ Through contractual agreements with local governments, the Department of Homeland Security maintains this network of facilities ready to be used on command.¹³² Analyzing ICE’s detention operations in October 2022, Nofil found that almost nine out of ten facilities in ICE’s network operated under intergovernmental service agreements, a type of contract between federal and subfederal entities (p. 219). Some facilities, like the Bluebonnet Detention Facility in Anson, Texas, are owned by the county and operate solely as immigration prisons under contract with ICE.¹³³

Most are traditional county jails from which ICE rents bed space. The Clinton County Jail in Plattsburgh, New York, has been in the mix almost from the beginning. Nofil uncovers evidence of Chinese prisoners being sent there as early as 1900. “[T]he atmosphere of Malone is favorable to the Chinese,” reported a local newspaper, so the federal prosecutor ordered that they be transferred to nearby Plattsburgh.¹³⁴ These days, there are fewer migrants held there by ICE: According to the agency’s records as of September 2025, the agency held on average five people there for fiscal year 2025.¹³⁵ By contrast, the Baker County Sheriff’s Department in Macclenny, Florida, held on average over 250 people during the same period.¹³⁶

Though usually uneventful, reliance on local jails sometimes turns deadly. While Sing Tuck’s case was wending through the courts, seventeen Chinese men died in the Franklin County jail, located in Malone, New York (p. 42). Another three died in a single week in 1904 at another detention center (p. 42). Regrettably, such tragedy is not a thing of the past. In 2018, Marco Antonio Muñoz and his wife Orlanda left their home in Honduras and headed to the Mexican border town of Reynosa, Tamaulipas.¹³⁷ They planned to return to North Carolina where they had previously spent years and where their oldest child was born. Marco Antonio never made it back. After crossing the Rio Grande River into South Texas and encountering Border Patrol agents, the family was detained and separated.¹³⁸ Marco Antonio reacted viscerally and emotionally. Border Patrol agents “had to use physical force to take the child out of his hands,” an agent recalled. “The guy lost his shit,” the agent added.¹³⁹ Unable or unwilling to help Marco Antonio, the staff in charge of the Border Patrol’s detention cells in McAllen, Texas, decided to send him about forty miles west to the Starr County Jail in Rio Grande City, Texas. He did not survive a day there.¹⁴⁰

Despite recurring deaths, migrant jailing remains firmly entrenched for the reasons Nofil explains. Politics, economics, and ideology combine to form an interlaced net of invested parties. Acting in pursuit of their own diverse interests, federal policymakers, local elected officials, and myriad contractors and employees push to sustain close ties between federal immigration officials and their counterparts in county government. By detailing the various interests involved, The Migrant’s Jail elucidates the logic of a type of incarceration that few people know exists and fewer still understand.

B. Tomorrow

“With support from Washington to Willacy County [in South Texas], it seems that the future is bright for immigration prisons. In the days after Trump’s election, private prison stock skyrocketed, suggesting that it is a good time to be in the business of locking up migrants.”¹⁴¹ That was my assessment of the state of migrant incarceration in the United States in 2019, when the Trump presidency seemed like it might be an anomaly.

Six years later, after President Trump returned to the White House propelled by his promises of a hardline migration policy,¹⁴² my prediction has proven correct. Immigration incarceration grew to historically unprecedented rates during the first Trump Administration.¹⁴³ The COVID-19 pandemic slowed migration and curtailed the desire of local police agencies to arrest people for nonviolent offenses.¹⁴⁴ But after reaching record lows at the end of Trump’s first term, ICE’s detained population increased once again during the Biden Administration.¹⁴⁵ As President Biden prepared to leave the White House in January 2025, there were around forty thousand people held inside the facilities that ICE used, most of which were county jails.¹⁴⁶ The detained population only grew in the ensuing months. By the end of June 2025, ICE reported that there were around fifty-seven thousand people being held by the agency or on its behalf on an average day.¹⁴⁷

As Nofil shows, federal immigration authorities are capable of expanding detention capacity quickly (pp. 173–95). DHS oversees a gargantuan detention operation, but it remains remarkably nimble, in no small part due to the flexibility provided by its contracts with county jails and other county-owned facilities (p. 188). Time and again, Congress has expanded the legal authority that federal immigration agents possess to detain a wider swath of the migrant population.¹⁴⁸ Courts have repeatedly found few constitutional constraints to ever more immigration imprisonment.¹⁴⁹ As long as the INS (and, more recently, ICE) has been willing to comply with minimal constitutional tenets of due process, the greatest limitation that federal officials have encountered has not been the law—it has been money. Congress has been generous in its funding of ICE’s detention apparatus,¹⁵⁰ but the agency has never had enough money to detain everyone it could detain under extant legal authority.¹⁵¹ Consequently, under Democratic and Republican presidents, the agency has routinely identified its detention priorities.¹⁵² People who fit into a low-priority category can be detained as a matter of law, but they are not sought for detention as a matter of policy.

Budget limitations may soon become a thing of the past. In early July 2025, Congress approved a budget proposal that would nearly triple funding for immigration law enforcement operations, including ICE’s detention capacity.¹⁵³ The approved budget will boost the agency’s three-year detention funding to $45 billion,¹⁵⁴ a 364 percent increase. With this, ICE will be able to pay for approximately 125,000 detention beds.¹⁵⁵ Clearly this substantial funding increase does not provide ICE with a bottomless well of money for immigration imprisonment. But it will likely transform immigration imprisonment as Nofil describes it, and as we have known it for almost 150 years. The future is indeed bright for immigration prisons.

For people detained inside ICE’s growing immigration prison apparatus, the future is dimmer. Despite the agency’s claim that detention and deportation promote public safety, there is no empirical evidence supporting ICE’s assertion.¹⁵⁶ On the contrary, confinement may damage communities by destabilizing families.¹⁵⁷ The agency’s arrest tactics have grown remarkably aggressive since Trump returned to the presidency, increasing worry among migrant communities, regardless of immigration or citizenship status. Moreover, while U.S. citizens have long been susceptible to the indirect effects of immigration imprisonment when a relative or friend is detained, journalistic accounts suggest that the number of U.S. citizens taken into ICE’s custody may be growing under the second Trump Administration.¹⁵⁸ “[N]o one is off the table,” Trump’s border czar, Thomas Homan, said in January.¹⁵⁹ A few months later, the Justice Department announced that it would prioritize efforts to strip people of their citizenship.¹⁶⁰

The history of migrant incarceration that Nofil reveals suggests Homan is not speaking out of nowhere. Nofil leaves no doubt that there has always been room to detain people who pose no threat to the public as well as people who are U.S. citizens. Homan may merely be saying out loud the reality that has long existed under the surface of immigration policy. The Trump Administration is now openly embracing the harshest features of what has always been there.

Conclusion

Policymakers, courts, and scholars frequently assume that migrant incarceration is distinct from criminal confinement.¹⁶¹ Several scholars have recently challenged this assumption through historical accounts of federal prisons and analysis of federal law.¹⁶² While problematizing understandings of federal laws and policies is valuable, most incarceration is carried about by state agencies—specifically, the counties that run the nation’s jails.¹⁶³

The Migrant’s Jail, Nofil’s first book, places local officials and the jails that they operate squarely in the conversation about the development of migration policy and incarceration policy. Deeply researched, Nofil’s account methodically describes the birth, expansion, and entrenchment of an overlooked site of migrant incarceration. Dispelling the assumption that the practice of migrant incarceration ought to be understood as distinct from criminal incarceration, The Migrant’s Jail documents how imprisoning migrants is part of the broader, long history of incarceration in the United States.

In revealing that there is no historical operational gap between federal immigration law enforcement authorities and their counterparts who oversee county jails, Nofil takes a powerful analytical whack at the silo that divides scholars of migration from scholars of incarceration. If the jailhouse doors make room for migrants, then scholarly inquiry should too—not at the margin, but at the center. This is a powerful push from a junior scholar to redraw the boundaries of academic inquiry in these areas. If heeded, the history that Nofil highlights might become the fertile present in which an alternative future begins to grow.

* Gregory H. Williams Chair in Civil Rights and Civil Liberties and Professor of Law, Ohio State University Moritz College of Law.