For centuries, prisoners in the United States were housed together regardless of their citizenship status. That changed in 1999 when the federal government began to send noncitizens into separate prisons. Today, tens of thousands of people — more than half of all noncitizens in federal prison — live in an institution segregated by citizenship. The vast majority of these people are Mexican nationals. Nearly all of them are Latino.
The rise of the all-foreign prison raises pressing questions about federal immigration power and noncitizens’ equal protection rights. Yet no legal scholarship examines these unusual institutions. Few even know they exist. Drawing on extensive data from the Bureau of Prisons, internal agency documents, interviews, and other primary sources, this Article provides the first account of the all-foreign prison. It notes that these prisons are insulated from meaningful judicial review by an alienage jurisprudence that affords deference to any federal policy characterized as migration control. And it critiques this doctrine, arguing that courts need a more coherent and defensible conception of the relationship between national sovereignty and noncitizens’ equal protection rights. To that end, this Article advances a simple claim: only core immigration activities — setting rules on entry, exit, and naturalization — should count as migration control. Other species of state action, including segregating foreign national prisoners, may affect where and how immigrants live their lives. But they are not the kind of migration control that warrants deference from federal courts.
* Bigelow Fellow and Lecturer in Law, University of Chicago Law School. For generous conversation and feedback, I am grateful to Will Baude, Omri Ben-Shahar, Linda Bosniak, Mary Bosworth, Steve Bright, Jennifer Chacón, Adam Chilton, Kris Collins, Adam Cox, Andrew Crespo, Dhammika Dharmapala, Sharon Dolovich, Justin Driver, Ingrid Eagly, Amanda Frost, Eric Gardiner, Lucas Guttentag, Andrew Hammond, Don Herzog, Aziz Huq, Lucy Kaufman, Issa Kohler-Hausmann, Genevieve Lakier, Zach Liscow, Dorothy Lund, Jonathan Masur, Richard McAdams, Martha Nussbaum, Manisha Padi, Nick Parrillo, John Rappaport, Judith Resnik, Cristina Rodríguez, Margo Schlanger, Geof Stone, Lior Strahilevitz, David Strauss, Karen Tani, Leti Volpp, Laura Weinrib, Mike Wishnie, and participants in the Immigration Law Scholars and Teachers Workshop and workshops at Columbia, Cornell, Georgetown, Harvard, New York University, Ohio State University, University of Alabama, University of Chicago, University of Michigan, University of Southern California, University of Virginia, and Yale. For invaluable research support, I owe thanks to Connie Fleischer and other librarians at the University of Chicago, the National Archives, and the National Archive of Criminal Justice Data. I also benefited from conversations with Anna Arons, Lisa Graybill, Bill Genego, Seth Freed Wessler, Stephen Raher, and analysts at the Congressional Research Service and the Bureau of Justice Statistics. Finally, I am indebted to the thoughtful editors of the Harvard Law Review.