Locking up Hope:
Immigration, Gender, and the Prison System

Other Intersections: The Example of Domestic Violence in Immigrant Communities

Even in cases where the immigrant man is the alleged perpetrator, a woman can conceivably be caught up as a victim of the U.S. criminal justice system. One of those situations involves domestic violence. In addition to the fact that a history of abuse is one of the predictors of women’s incarceration, as mentioned above, an experience with such violence can result in other potential involvements with the system. ¹ The decision about whether or not to report the abuse for a foreign-born woman is a complex one.

First, a woman who is in an uncertain legal status or whose immigration status is tied to that of her husband face might have deep fears around deportation of herself or her children if she approaches the police. The threat of deportation is commonly used by abusers against their partners. Many women are not familiar with the laws and rights related to domestic violence, which may differ dramatically from their home countries. Although a growing number of women are immigrating to the United States alone, a substantial sector has come either as a dependent on a male partner’s visa or to marry a U.S. citizen through the increasingly popular mail-order bride business. If these women are not yet proficient in the English language and/or do not know the criminal legal system and their rights, they may feel even more entrapped, to the point where they may be risking theirs and their children’s lives.

Second, even if a woman’s legal status is not an issue, the possibility of her husband’s entry into the criminal legal system can have a major impact on her life and livelihood. ² A recent case, for example, in which an immigrant Chinese woman called the police to intervene in a domestic dispute resulted in the incarceration of her husband; her intention was to ask for police mediation, which is the role that police would play in her home country. The subsequent incarceration of her family’s main breadwinner placed economic strains on her family, which intimidated other immigrant women from following suit. ³ Anecdotes abound of women in other immigrant communities who found themselves in similar circumstances.

Third, a woman might risk her own imprisonment in such cases. Some states have a dual-arrest policy, where both parties in a domestic dispute are arrested. The victim risks being misunderstood and inadequately defended in the U.S. courtroom. One researcher observed a situation where a foreign-born domestic violence victim’s position got twisted into that of a perpetrator. This victim’s courtroom testimony about the abuse fell prey to a mistranslation, which amounted to a confession of guilt on her part for the offense, without her knowledge. ⁴

Taking a gendered perspective on these immigration-incarceration interfaces need not focus solely on the direct relationship that women might have with the criminal legal system. The post-9/11 surveillance and arrests of foreign-born men as part of the “war on terror” are often husbands, sons, and fathers of immigrant women—resulting in major disruptions in family income and stability. ⁵ A key example was the National Security Entry-Exit Registration System (NSEERS)—the 2002 “special registration” program the Bush administration enacted, which required foreign-born men from particular Muslim countries to register, submit to an interview, and be photographed and fingerprinted. Widespread confusion resulted over the target communities and requirements of this initiative. Thousands of registrants, believing to be in voluntary compliance of the law, were subsequently rounded up by the Department of Homeland Security: 2,870 were detained and another 13,799 were put into removal proceedings. The measure prompted mass emigrations to countries like Canada, and had a major economic impact on the Pakistani and Bangladeshi communities in New York. ⁶

Learning From the Incarcerated Immigrant Woman

Further research and analysis into the presence of foreign-born women in our jails and prisons could potentially offer a broader perspective on the issues facing both incarcerated populations generally and immigrant populations generally. How many other prisoners are accidental victims of the system, through false arrests, misunderstood courtroom testimony, or lack of knowledge of an increasingly complex set of laws? How is the transportation of incarcerated women to locations far from their homes—in special detention centers away from access to community resources—a shared problem by many prisoners, increasingly shipped to states other than their own? And what situations of native-born imprisoned women mirror those of the asylum-seekers thrown into cells with more serious criminals?

For example, a Sierra Leonean woman detained in Wisconsin experienced severe cramping and abdominal bleeding, a sympton she had suffered ever since she was forced to undergo female genital mutilation as a teenager. Her requests for medical care were frequently ignored. She also suffered from Post-Traumatic Stress Disorder due to the violence she witnessed during her home country’s civil war and a rape she survived while she was living in the United States as a refugee. As a result, the woman occasionally became agitated during her nearly three years in the jail. ICE cited her outbursts as justification for housing her with violent criminal inmates. ⁷

Since migration policy and incarceration of newcomers places the U.S. system more centrally in an international spotlight regarding human rights questions, an exposure of the experiences of detained immigrants might also shed light on the treatment of the native-born in our prisons. Viewed from this perspective, how is a “human right” (using international treaty definitions) distinct from a “civil right” of citizens within a situation of incarceration? Since a “civil” right is tied to citizenship, non-citizen immigrants have a more restrictive set of rights. For example, the International Covenant on Civil and Political Rights requires that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” ⁸ Does such a requirement have bearing on women stripped of headscarves, shackled while pregnant, or placed in punitive prison environments for violating an immigration law?

A significant and growing constituency in the United States is subject to a set of laws that they have no voice in making or changing. What avenues can be opened to allow the non-citizen foreign-born to be represented in policy making? And how can the specific voices and needs of women be brought to the table? By virtue of their incarceration—including parents jailed for using a belt to discipline their child, which is accepted in their home cultures—future citizenship rights will be limited. In some states, these prisoners have lost their voting rights for years, if not for life. The popular historic American conception of a citizenry rooted in immigrant communities is in jeopardy if part of that community is disenfranchised and if the feeling of hope—which is a sustaining force of immigrants—is eroded.

Immigrant women who have been victims of violence must be able to tell their stories and be allowed asylum without having to endure even greater violence in and by the criminal legal system. In several studies with detainees at a number of different prison facilities, there have been widespread allegations of physical, sexual, and verbal abuse by corrections officers and other correctional personnel. ⁹ In addition, inadequate medical and mental health resources for women generally, and women with infant and small children in particular, are documented in these same reports. Moreover, the roundup and jailing of immigrant mothers who are at work, and their removal to prisons far away from their children and their homes, is a situation of terrible trauma all the way around. We must be aware of both the immigrant and non-immigrant children whose mothers have been ripped from their lives—sometimes without any notice and with tragic consequences. ¹⁰

Ironically, prisoners are now being used in jobs where laws do not allow immigrants to perform the cheap labor that immigrants have always done. For example, in Picacho, Arizona, claims are made that U.S. farmers are using prison labor because of a lack of immigrants: “With tightening restrictions on migrant workers, some farmers are turning to the incarcerated.” ¹¹ This does not bode well for either immigrants or native poor people who lack necessary jobs in their home communities. Tragically, some of the very jobs that prisoners perform while in prison have been sent overseas for cheaper labor and are now coming back to U.S. prisons, as international labor becomes more costly. Not only are these jobs not available in the community leading to imprisonment, but when ex-offenders are released back into the community, the jobs are still not there, but in the prisons themselves! This vicious cycle is exacerbated when we add the role of immigrants to the picture, as well as native-born poor people and people of color.

1. Hoan N. Bui, In the Adopted Land: Abused Immigrant Women and the Criminal Justice System, New York: Praeger, 2002.[↑]
2. See Bui, Ibid., 2002.[↑]
3. Personal conversation with a Chinese-American woman.[↑]
4. Personal conversation with a colleague of the courtroom observation.[↑]
5. See Das Dasgupta, op. cit., 2007.[↑]
6. “Targets of Suspicion: The Impact of Post-9/11 Policies on Muslims, Arabs and South Asians in the United States,” Immigration Policy in Focus, May 2004, Washington, DC: Immigration Policy Center[↑]
7. National Immigrant Justice Center, “The Situation of Immigrant Women Detained in the U.S.,” op cit., p. 5.[↑]
8. “International Human Rights Standards Governing the Treatment of Prisoners,” Human Rights Watch Prison Project.[↑]
9. National Immigrant Justice Center, The Situation of Immigrant Women Detained in the U.S., op cit.[↑]
10. See Nell Bernstein, All Alone in the World: Children of the Incarcerated. New York: The New Press, 2005.[↑]
11. E.g., see Nicole Hill, “US Farmers Using Prison Labor,” Christian Science Monitor Online, August 22, 2007.[↑]