The Price of Protection: Examining the Legality of the U.S. Immigrant Detention
Immigrant detention in the United States has grown into an expansive system that affects thousands of lives every day. On any given day, tens of thousands of migrants, including those with zero criminal history, are held in facilities run by U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection (CBP). These facilities range from small holding cells to large, prison-like centers, many of which are operated by private corporations. While the federal government has legal authority to detain people who enter the country without authorization, the way detention is carried out can conflict with constitutional protections and basic human decency. Conditions in detention, prolonged confinement without oversight, family separation, and inadequate medical care raise questions concerning the fairness and legality of the detention.
In immigrant detention, children are held in prison-like conditions, families are separated, and adults are left without due process of law. Private prisons profit from the high occupancy rates. Understanding why immigrant detention is controversial requires one to look at the legal framework that regulates it. All people in the United States, including noncitizens, are protected by the Constitution. The Fifth Amendment guarantees that no person can be deprived of life, liberty, or property without due process of law. This means that even migrants who are in the country unlawfully retain certain fundamental rights. In theory, detention should be temporary, procedural, and subject to review, rather than punitive or indefinite. Detention is meant to be civil, temporary, and humane. In practice, it can resemble punishment.
One of the most prominent examples of unfair and potentially unlawful detention occurred during the “Zero Tolerance” initiative in 2018. Under this policy, more than 5500 children were forcibly separated from their parents at the border. Parents were criminally prosecuted for crossing the border, while children were placed in the custody of the Department of Health and Human Services, often far from their families. Many children remain separated to this day.
Detention facilities frequently struggle with overcrowding. CBP holding facilities are designed for short-term stays, yet migrants often remain in these cells for weeks. Children are found sleeping on concrete floors, standing for hours in crowded cells, and lacking access to showers and basic hygiene. Photographs released showed children wrapped in blankets, packed shoulder-to-shoulder in spaces intended for far fewer people. ICE detention centers, which house migrants for long periods, often provide prison-like conditions to their inmates. Many detainees report limited access to outdoor spaces, nutrition, and medical care. In one case, sixteen-year-old Guatemalan Carlos Gregorio Hernández Vásquez died from medical complications after being left unattended in a Texas CBP cell for hours. He was one of six children to die in the custody of the U.S. Border Protection Agency in less than a year. Johana Medina Leon, a transgender asylum seeker, died after ICE failed to provide necessary medical treatment; this is yet another transgender asylum seeker who has died after neglect in ICE custody. The failure to provide basic health protections represents a clear gap between the ideals and execution of immigrant detention.
A significant portion of ICE detainees are operated by private companies, including CoreCivic. These facilities are paid per detainee, creating financial incentives to maximize the occupancy of these detaining centers. Oversight is limited ,and independent inspections are rare or restricted. Investigations have documented abuse in private facilities. Detainees experience a lack of medical care, receive unsanitary food, and are subjected to solitary confinement for prolonged periods of time. Vulnerable individuals, like those with disabilities, are disproportionately affected by these conditions.
The human toll of unfair detention is immense. Children suffer trauma from family separation and inadequate care, being forcefully exposed to harsh environments. The combination of confinement, uncertainty, and substandard living conditions creates an environment that violates the spirit of laws intended to protect children from these conditions. Adults often experience stress, anxiety, and depression. Prolonged detention can disrupt education, employment, and family stability. It can leave individuals with long-term social and psychological consequences as well.
Congress has enacted laws that provide additional protections for specific groups of immigrants. The Refugee Act of 1980 aligns U.S. law with international standards by requiring fair and prompt processing of asylum and forbidding punishments for those seeking refuge. The Flores Settlement Agreement of 1997 establishes the minimum standards for children in detention, emphasizing the least restrictive setting appropriate to their age and the prompt release to parents or guardians whenever possible.
Detention can be managed much more humanely and effectively without compromising public safety. Community supervision and case management programs will go a long way in ensuring the safety of detainees. Strengthening protections for children and ensuring timely hearings can reduce unnecessary confinement. It is critical to prioritize welfare over occupancy in order to create a fairer system.
Many countries outside the United States approach immigrant detention with far more caution, treating it more as a last resort than a default response. Nations like Canada and the United Kingdom make broader use of community-based alternatives that rely on regular check-ins rather than confinement in prison-like facilities. Canada, for example, has invested in programs that connect asylum seekers with nonprofit organizations to help them navigate legal cases while living freely in the community. Several European countries limit detention to shorter periods of time and reserve it for individuals who pose evident safety risks or are likely to evade precedes. Asylum seekers and children are rarely detained at all. The European Union also imposes legal constraints that require detention to be proportionate and justified. These models show that the U.S. government can invest in alternatives other than extended, inhumane detention procedures.
Immigration detention in the United States reveals a system that has expanded far beyond what the law originally envisioned. The authority to detain is completely legally grounded, but how that authority is exercised raises serious questions regarding ethics. The inhumane conditions of these detentions show how the system contradicts the protections the United States must uphold. The United States cannot control every factor that drives migration, but it can control how to respond. Recognizing this is the first step towards meaningful reform.
Bibliography
“Policy Brief | Snapshot of ICE Detention: Inhumane Conditions and Alarming Expansion - National Immigrant Justice Center.” 2024. National Immigrant Justice Center. September 20. https://immigrantjustice.org/research/policy-brief-snapshot-of-ice-detention-inhumane-conditions-and-alarming-expansion/.
Dholakia, Nazish. 2025. “The Truth about Immigration Detention in the United States.” Vera Institute of Justice. June 11. https://www.vera.org/news/the-truth-about-immigration-detention-in-the-united-states.
“Trump Administration Deadlier for ICE Detainees than COVID-19 Pandemic - American Immigration Council.” 2025. American Immigration Council. October 17. https://www.americanimmigrationcouncil.org/blog/trump-deadlier-for-ice-detainees-than-covid-19-pandemic/.
Patler, Caitlin, Altaf Saadi, and Paola Langer. 2025. “The Health-Related Experiences of Detained Immigrants with and without Mental Illness.” Journal of Migration and Health 11 (January). Elsevier BV: 100302–2. doi:https://doi.org/10.1016/j.jmh.2025.100302.
Moore,Susan, Robert. 2019. “ProPublica.” ProPublica. ProPublica. December 5. https://www.propublica.org/article/inside-the-cell-where-a-sick-16-year-old-boy-died-in-border-patrol-care.
“Released by ICE on Edge of Death.” 2020. Latimes.com. https://enewspaper.latimes.com/infinity/article_share.aspx?guid=d30a639d-279e-42da-a395-a36869334462.
“Is Immigration Detention a Problem Everywhere in the World? - International Detention Coalition.” 2024. International Detention Coalition. February 20. https://idcoalition.org/idc_faqs/is-immigration-detention-a-problem-everywhere-in-the-world/.
National Archives Foundation. 2024. “Refugee Act of 1980.” National Archives Foundation. August 22. https://archivesfoundation.org/documents/refugee-act-1980/.
“History and Update on Flores Settlement – CWLA.” n.d. CWLA.org. https://www.cwla.org/history-and-update-on-flores-settlement/.
“A Look Back at the Family Separation Policy: The Struggle to Uncover the Truth behind the Trump Administration’s Wrongdoings- American Immigration Council.” 2025. American Immigration Council. October 30. https://www.americanimmigrationcouncil.org/report/family-separation-policy/.
admin. 2016. “Financial Incentives.” Detention Watch Network. February 8. https://www.detentionwatchnetwork.org/issues/financial-incentives.
“Exclusion of Aliens Seeking Entry into the United States | Constitution Annotated | Congress.gov | Library of Congress.” 2020. Congress.gov. https://constitution.congress.gov/browse/essay/amdt5-6-2-2/ALDE_00013725/.