In a 2016 article, I helped to breathe life into an immigration detainee in the Central Region (the province of Ontario minus Ottawa and Kingston) of Canada. With my co-author, Petra Molnar, I figured Amir as a composite case study based on real-life detainees to whom Ms. Molnar provided legal assistance at the Central East Correctional Centre (CECC), a provincial prison in Lindsay, Ontario. With personal details removed, Amir's plight typifies a cross-sectional interaction of immigration status, criminal history, date of arrival, and sending country or country of origin conditions. The composite case study methodology is common in legal texts. Amir puts a face on a population that detention demonizes and hides away (Mainwaring and Silverman 2017). His individual “pains” stand in for the larger injustices of over-incarceration of racialized young men (Longazel et al. 2016). In particular, Amir was caught up in the Faster Removal of Foreign Criminals Act (2013), an Immigration and Refugee Protection Act (IRPA) amendment, that exacerbates the racial targeting of young men in Canada. By making deportable every non-citizen who receives a criminal sentence of six months or more, the Faster Removal of Foreign Criminals Act continues to transform people from permanent residents into legally “inadmissible” non-citizens subject to indefinite immigration detention as they await removal.
The IRPA framework legislates a statutory timeline to provide detainees with a hearing on the procedural merits of their detentions at 48 hours, one week, and then every 30 days until release or removal. Detention is part of immigration and thus administrative law, not criminal law. Thus, detention hearings are quasi-judicial: presided over by decision-makers at the Immigration Division of the Immigration and Refugee Board (IRB) federal tribunal, detainees have no right to a court-appointed lawyer, translator, or even to internet access and telephone calls before the hearing (Silverman and Molnar 2016). Officials of the Canada Border Services Agency (CBSA) are the arresting and custodial authorities. In a reversal from the criminal justice system, the onus for disproving the reasons for detention is placed on the prisoner.
The core procedural justice issues with this system lie in the gaps between the rights Canada offers to detainees on paper, and the reality of compounding miscarriages of procedural justice. Amir's plight demonstrates some of the practical barriers to mounting a substantive case for release—let alone asylum or permanent residence—from within prison. Ms. Molnar and I turned to Amir to help make sense of what the case files told us “in such a way that is useful and persuasive” (Bosworth 2014: 60). The 2016 article found that, despite its aspirations to procedural fairness, the Canadian detention reviews or hearings system did not bring detainees closer to justice (Silverman and Molnar 2016: 110).
Narrativity in Researching and Presenting Immigrants in Detention
I have been recently troubled by the life story of Amir. Specifically, how I, as a White-passing, cisgender scholar enjoying secure Canadian citizenship, magicked up a composite young Black man facing removal and languishing indefinitely in detention. I am interested in revisiting Amir to more deeply examine the overlaps and disjuncture between legal studies and social science narrative forms, “real life” and composite detainees, and author and voice. In her seminal text, Marita Eastmond (2007: 249) encourages social scientists to rethink narrative methodologies: “how we can know something about other people's experiences and how we can represent them in ways that do them justice?” This question speaks to the need for a more “ethical encounter” (Butler 2004) with research subjects and partners, whether composite or singular. Severe power imbalances exist in relationships between me and Amir, between “citizen” and “detainee,” “White scholars” and “racialized prisoners,” and so on. Unfortunately, Amir lines up with the trend of approaching prisoners, migrants, and other detainees as the objects of discussion.
Law, policy, and scholarly methodologies and publications may deny detainees and other precarious subjects the rights and fora to speak. Liisa Malkki (1996) argues that humanitarian practices aiming to “save” refugees in fact speak for, or even silence, them; Malkki's anthropological approach presented stories to demarcate individuals from the otherwise faceless, voiceless “sea of humanity.” Gayatri Spivak (1999) urges us to resist the epistemic violence of scholarship and be open to listening to, not speaking for, the Other. More recently, Spivak provided a “use-related description” of “the ethical as that moment which might or might not be encountered by the subject, and may produce the reflex for which it is or it is not trained” (in Cielątkowska 2011). Both Malkki and Spivak were forerunners in the turn to a research ethics that emphasized slow scholarship, deeper engagement, listening, and contextualizing and de-privileging the researcher's lens of analysis to make space for more robust encounters with precariously situated subjects like detainees (see also the final chapter of Alexandra Hall's Border Watch 2012).
The turn to recognizing the migrant's “journey” (Brigden and Mainwaring 2016) is concurrent with researchers committing to continuous/retroactive and informed consent, sharing stories before publication, and observing reflexive or situated standpoints (see, e.g., Clark-Kazak 2009, 2017; Rozakou 2019). Totemic analytic conventions, concepts, and categories are being interrupted by intersectional and feminist methodologies (Andrijasevic 2009; Conlon 2011; Johnson 2013; Mountz 2011; Mountz et al. 2013) and ethnographic approaches (e.g., Andersson 2014; Bosworth 2014; Drotbohm and Hasselberg 2015; Griffiths 2014a; S. Hall 2015: 34; Harries et al. 2019; Khosravi 2017; Stephen 2018). The “narrativity” approach includes “autobiographical stories, written down in private by the individual him or herself, shared during the flow of everyday conversation, or recorded during an interview session” (Powles 2004 Footnote 2) or a narrative arc of one or more people, like with Amir (see, e.g. Ahmed et al. 2017; Bosworth 2014; Fleay and Briskman 2013; Gorman 2016; Griffiths 2014a, 2014b; Silverman and Molnar 2019).
Yet, even when researchers contextualize life stories, how can we account for the inherently political and sociolegal milieu of detention, and how do we combine advocacy efforts with research? As Christina Clark-Kazak (2017: 11) observes, the “right to remain in the host country can be revoked or jeopardized on the basis of data collected during research” and “people are often in situations of unequal power relations where they depend on sponsors, service providers, and/or the government for survival and/or legal status” (see also Hugman et al. 2011; Jacobsen and Landau 2003; on detention, see, e.g., Fleay and Briskman 2013; Lietaert et al. 2015).
Creating and publishing Amir's story speaks to Karen Jacobsen and Loren B. Landau's (2003: 186) identification of a scholarly “double imperative.” They find pressure both “to satisfy the demands of academic peers and to ensure that the knowledge and understanding [the] work generates are used to protect refugees and influence institutions like governments and the UN” (see also Darling 2014; Kirmayer et al. 2004; Kronick et al. 2018; Zion et al. 2010). I personally benefited from Amir, but also hopefully translated some readers’ attention into care about detention. It is vexing to argue on behalf of “oppressed people” without, as Adrian Parr (2005: 289) puts it, “contributing to the selfsame system of western desire that consumes the life of … detainees in order to gratify its own sense of privilege (white and civilized).” Jonathan Darling (2014: 207) describes the balance between the researcher struggling for accurate representation of their findings alongside “an iterative process about the potential risks and costs of participation.”
Yet, despite the risks, it strikes me as paternalistic to abandon Amir altogether and effectively deny him the opportunity to act. I will therefore slide a series of four doors to spring Amir from the prison I caged him in four years ago. These interrelated “sliding doors” lead to different varieties of structural restitution, justice, and freedom. Importantly, none absolve scholars like me in their complicity in the build-up of detention as an acceptable practice in Canada and around the world.
Sliding Door 1: Discretionary Release
In 2017, the IRB Chairperson commissioned an external audit to review detentions lasting longer than a hundred days. The independent auditor randomly selected twenty cases for in-depth examination, and also read through 312 hearings and decisions over a seven-month period. Released publicly in 2018, the findings of the auditor's report (the Audit) flagged that Central Region decision-makers were responsible for ordering continued detention of over half of Canada's long-term cases in Fiscal Year 2016–2017; the Central Region where Amir languished also hosted “the files with long-running and recurring deficiencies,” “the lowest rate of representation by counsel,” and “five individuals who were held for more than two years [of whom] only one was eventually deported” (The Audit). In response, the Immigration Division (ID) updated its procedures and training, hired new adjudicators for the Central Region, reduced the numbers of long-term detainees, and revised the Chairperson's Guideline on Detention, which ID decision-makers must follow at every hearing.
In March 2020, the CBSA began conditionally releasing detainees in response to the COVID-19 pandemic. The CBSA also began increasing its reliance on the John Howard Society and other partners willing to monitor immigrants released from detention to live with strict conditions in the community. On 17 March 2020, CBSA was officially detaining 353 people across its immigration holding centers (IHCs) and in provincial jails. The population of IHC detainees fell quickly to 98 people (25 March) then 64 people (1 April) then 30 people, with 117 additional detainees in provincial jails on 19 April (Silverman 2020). As of 10 November 2020, the CBSA was officially imprisoning 41 people in its three IHCs (which have a total capacity of 362) and 94 more people in provincial jails like the CECC in Lindsay (Bureau 2020). Optimism over these releases and potential de-carceration is tempered by the Canada-wide deputization of quarantine officers to lay criminal charges to anyone violating pandemic orders: activists are reporting numerous incidents of Toronto and other urban police services targeting racialized and immigrant people—particularly Black men—for COVID-related criminal allegations, including assaulting one man in front of his daughter (McClelland 2020). COVID-related charges can result in a permanent “inadmissible” status, even without being required to pay a fine or being served with formal charges.
It is thus possible that the Audit catalyzed a procedural justice paradigm shift, and an Immigration Division adjudicator assigned to re-evaluate Amir's case decided to order release. Or perhaps the CBSA released Amir to his family in the face of the spreading threats of the COVID-19 outbreak. In both cases, the Immigration Division adjudicator would likely impose conditions on his release, such as having to live with a surety, deposit his travel documents, and report regularly to a case management officer. Accordingly, neither option represents real freedom since both are discretionary, conditional, and balance a risk of re-arrest and potential removal as “inadmissible” under the Faster Removal of Foreign Criminals Act or perhaps the COVID-related health orders.
Sliding Door 2: A Writ of Habeas Corpus
Canadian law holds that migrants can seek judicial review of detention and other ID decisions by filing an application at the Federal Court. Judicial review is an administrative process, and so the Federal Court will only hear cases to which it grants leave. When the Federal Court denies leave, the detainee has no more options for appeal at that court. Importantly, unless released by an Immigration Division adjudicator in the meantime, detainees remain incarcerated while awaiting word on the judicial review process. Yet, since Canada does not provide lawyers to detainees, many either do not know or do not have capacity to pursue this option, with few being successful (Dauvergne 2012; Rehaag 2012).
Amir's article begins with the October 2015 Chaudhary v. Canada1 case brought by four long-term detainees who wanted a third option, the restitution of access to writs of habeas corpus. Known as the “Great Writ of Liberty,”2 habeas corpus is the fundamental legal remedy to contest a deprivation of liberty. The Supreme Court of Canada calls it “the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful.”3 Restoring access to habeas corpus for Central Region-based immigration detainees, Chaudhary presaged a number of other detainee rights cases, including Toure v. Canada 2018, Ali v. Canada 2017, Brown v. Canada 2017, and Scotland v. Canada (Attorney General) 2017. In 2019, in considering the 13-month detention of Mr. Tusif Ur Chhina in the province of Alberta, the Supreme Court reinstated access to habeas corpus applications for all detainees across Canada.4 Since a habeas corpus application provides access to a new court and a new judge, Amir obtains legal counsel and files a successful application. Nevertheless, Amir's legal case remains unresolved; he may receive some remuneration for his prolonged incarceration, but he is still facing removal from Canada.
Sliding Door 3: The End of Anti-Black, Anti-Muslim, and Anti-Refugee Discrimination in Canada
Amir's story of arrest, incarceration, and attempted removal is borne out of Canada's laws and policies intertwining illegality and criminality with poverty and racialization. This door picks up on interdisciplinary scholarship's insights into the “centrality of criminalization in the process of racially organizing society” (Escobar 2016: 59–60; see also Alexander 2012; Chan 2005; Escobar 2009; Golash-Boza 2016; Hernández 2008; Longazel et al. 2016; Rodríguez 2010; Silverman and Kaytaz 2020). Amir's journey can prompt us to challenge how immigration detention supports and is supported by gendered, racialized xenophobia and religious prejudices in Canada.
Amir presaged the real-life trajectories of Mr. Abdoul Kadir Abdi, Mr. Abdilahi Ahmed Elmi, Mr. Ibrahim Osman Ibrahim, and Mr. Abdirahmaan Warssama, high-profile detainees whose prolonged incarcerations have been profiled in the Canadian media and who the CBSA is trying to banish to Somalia, a place where they have spent minimal, if any, time (like Amir). With an extreme travel advisory on Somalia, Canadian airlines will not fly there directly (Government of Canada 2019). CBSA asks detainees to sign “voluntary departure orders” to be flown via intermediaries on a private airline, often with disastrous consequences (Chipman 2014). Mr. Ibrahim signed a voluntary travel waiver in detention, without a lawyer present, while taking anti-depressants given to him by CBSA and experiencing vision problems; Canada removed Mr. Ibrahim to Somalia in November 2017. CBSA detained Mr. Warssama for 57 months until a federal court ordered his release in 2015. Mr. Elmi won a reprieve from his removal to Somalia via a 2019 legal petition to the United Nations, but his “inadmissible” status remains. Like Mr. Elmi and Amir, Mr. Abdi arrived in Canada as a child asylum seeker and was shuttled among 31 different “care” arrangements, one of which was abusive (Khandaker 2018; Nethery and Silverman 2018). Following an extraordinary advocacy campaign spearheaded by his sister and the Toronto chapter of Black Lives Matters, the Federal Court overturned the removal order on judicial review in July 2018.
Black people (people of African descent) amount to around 8 percent of Toronto's population, and 2 percent of the Canadian population. In 2011, Muslims made up about 3.2 percent of the Canadian population, a figure that scholars expect to more than double by 2030 (Selby 2018: 224). Most Somali-Canadians are Muslim, and either second generation (born after their parents resettled) or part of the 1.5 generation (they arrived at a very young age) (Ungar et al. 2015: 2274). Community-wide experiences of trauma may produce intergenerational harms (Bokore 2018; Ellis et al. 2015; Ungar et al. 2015).
Black people are disadvantaged and discriminated against by Canadian institutions, including the housing, welfare, criminal justice, labor market, police, schooling, and immigration systems (Aiken 2007; Berns-McGown 2013; Maynard 2017; Meng et al. 2015; Wortley and Owusu-Bempah 2009). In the Central Region, Ontario Premier Doug Ford plans to reinstate the failed Toronto Anti-Violence Intervention Strategy (TAVIS) that was “responsible for the racial profiling and unlawful arrests of untold numbers of Black people going about their daily lives” (Abdillahi et al. 2018). Likewise, former city councilor Giorgio Mammoliti said he would approach Toronto's lower-income and predominantly Black “Jane & Finch” community of 50,000 residents as if “spraying down a building full of cockroaches”; Mr. Mammoliti also disseminated a campaign poster with a photo of himself holding a sledgehammer and a message declaring he would destroy “social housing” units (PressProgress 2018). A 2018 Ontario Superior Court decision focused on “the problem of the disproportionate imprisonment of Black offenders” (R. v. Morris: para. 24).
The settler-colonial state thesis advances the idea that Canadian national belonging is strategically defined in political, not ethnic, terms in order to displace and discredit Indigenous peoples in order to appropriate their lands (Bashford 2014; Bauder 2011; Coulthard 2007; Dauvergne 2016; Stasiulis 2020; Wolfe 2006; Wright and Sharma 2008/9). Recruiting ambitious, entrepreneurial immigrants to “advance” the Canadian economy is part and parcel of the state's ongoing displacement of Indigenous peoples from the land. In other words, emphasizing the success of Canada as a global “destination State” sidelines the rights and land claims of the First Nations who have been stewards of the lands for thousands of years. The newcomers are “advancing” the economy in contrast to the First Nations who are seen as impediments to neoliberal growth. Canada's fabricated history as a welcoming “nation of immigrants” is a cover for its ongoing genocide of Indigenous peoples.
Sorting out and removing criminals or deviant Others is crucial to the settler-colonial State project (Bauder 2011; Hari 2014; Stasiulis and Yuval-Davis 1995; Thobani 2007). As discursive links in a chain connecting immigration to criminality, researchers are demonstrating how the hyper-surveillance of racialized communities connects to anti-immigrant and tough-on-crime populism in Canada (e.g., Benslimane and Moffette 2019; Walia and Chu, 2015). Likewise, the Faster Removal of Foreign Criminals Act caught Amir and the other men mentioned above in its racist snare. It is thus impossible to separate immigration detention from the legal injustices and unjust power dynamics facing minoritized communities.
The Somali-Canadian community that Amir belongs to is, by and large, Black and Muslim and a former-refugee minority group. Studies show that these communities are subject to high levels of social scrutiny, securitization, and surveillance (e.g., Berns-McGown 2013; Giwa et al. 2014; Razack 2007; Sirin and Fine 2007). Academic, government, and media characterizations have stereotyped Somali-Canadians as violent outsiders who needed additional control (Dossa 2008; Jiwani and Al-Rawi 2020; Razack 2004; Selby 2018). Somali-Canadian youth are thus more likely to come to the attention of police and immigration authorities; the Faster Removal of Foreign Criminals Act seals their fates with the “inadmissible” label (Benslimane and Moffette 2019; Silverman and Kaytaz 2020); and the conditions in Somalia make it unlikely that Amir or fellow detainees will be deported in a timely manner, if at all.
An intersectional lens on the sliding doors scenarios reveals how migrants and refugees experience racial violence, particularly anti-Black racism, on top of immigrant injustice and the violence of detention. Raced, classed, gendered, ableist, neoliberal, and post/neo-colonial biases construct legal and policy categories of “illegal,” “inadmissible,” and “criminal” people, creating barriers to equality for migrants and for citizens (see, e.g., Chan 2005; Clutterbuck 2015; Fernando and Rinaldi 2017; Goldring et al. 2009; Sharma 2001; Silverman 2019; Silverman and Kaytaz 2020; Tam 2017). Tryon Woods (2013: 131) reminds us that anti-Black paradigms (“prostitution, human trafficking, international drug trade, or even feminist analyses of the larger historical context of globalization”) continue to delimit South-to-North migrants into either victims or perpetrators, thereby injuring them in countless ways before they arrive at a prison or detention center. Accordingly, this sliding door would necessitate a number of interlocking steps to free Amir including: the end of anti-Black, anti-Muslim, and anti-refugee discrimination in Canada; a time limit on detention; a moratorium on attempting removals to Somalia; the removal from the IRPA of the Faster Removal of Foreign Criminals Act; and an easier route to accessing Canadian citizenship.
Sliding Door 4: Abolishing Detention to Reach a New Horizon of Immigrant and Racial Justice in Canada
Amir is still in prison, still denied a voice. The door to springing Amir must tear down the material and ontological structures that caged him in the first place. Detention is not natural; it is a creation of laws, policies, rules, and regulations set on transforming people into imprisonable bodies. A layered infrastructure enacts detention in Canada. Detention necessitates the cooperation or co-optation of legal and political actors in a wide constellation, including: the federal level (the CBSA and IRB, as well as the policy-oriented Immigration, Refugees and Citizenship Canada); the provincial level (whose ministries own the jails and who provide health services and legal aid to detainees); additional enforcement (the Royal Canadian Mounted Police and municipal police); and, finally, non-state (private firms who staff the IHCs; activists who visit and fight for the detainees; the unions representing guards and immigration officers; media who report on detention; and White scholars like me who profit professionally) (on the palimpsest of migration enforcement actors, see also Andersson 2014, Longo 2018).
Yet, detention is not reducible to the actions or omissions of some individuals or groups; if it were, then we could have seen full-scale reforms after the Audit or during the ongoing COVID-19 pandemic. Instead, just as we need to think more clearly about the settler-colonial project, we also need to recognize the force of the sociocultural ideas undergirding the basic premise that Canada can imprison someone indefinitely for immigration-related reasons. This idea's roots are deeply planted in structural forms of oppression, including systemic and institutional racism, poverty, inequality, settler-colonialism, and xenophobia; the evolving carceral state; and a neoliberal mentality that generates profits for a few while causing harm to the many.
The sliding doors reveal that piecemeal reform efforts will never be enough for justice. A key finding from the penal-abolitionist scholarship is that prisons are nested in wider social, legal, and political oppression. A telling example is the coupling of detention de-carceration with COVID-related violations resulting in a permanent “inadmissible” status. Often based in lived experience of prisoners, penal abolitionism is both an organizing strategy and an ethical orientation for political action. Penal abolitionists argue that by shaving off only a sliver of oppression for change, piecemeal reform efforts risk reinforcing the historical injustices they seek to overthrow, including anti-Black racism, violence, and death (Alexander 2012; Wilson Gilmore 2015; McKittrick 2011; McLeod 2015, 2019; Miller 2008; Rodríguez 2010).
An intersectional application of these insights reveals that detention's harms are not aberrations or rarities but form part and parcel of how the system is supposed to work and who it is meant to target (Lydon 2016; see also Gómez Cervantes et al. 2017; Wilson Gilmore 2007, 2015). It is not enough to operate the Canadian detention system based on a fear of the “terrible few” who are historically stereotyped as criminal, illegal, or otherwise dangerous (Silverman and Kayaz 2020).5 The expansive, intrusive, and deleterious detention system limits the political and legal space available to migrants and their wider communities. To spring Amir, we must dismantle detention altogether and work to create conditions provide Amir and everyone else what they need to survive and thrive.
Conclusions: Ways Forward in Detention Studies
I returned to Amir to imagine a better future for him, more ethical research methodologies for detention studies, and a more just future for migrants and racialized people generally. The detention studies literature documents the wide expanse of detention's inevitable harms and celebrates acts of resistance. However, the solution to the violence is not to fund more research into uncovering individual instances of harm by guards and protest or “push-back” by organized detainees. Not counting documentation for legal challenges (especially for remuneration or reparations), I would argue that detention studies does not need to devote more time and resources to “proving” the anguish of detention. Rather, I am inviting students and teachers to engage with me in a wider conversation about how to better “study” detainees and detention.
I am interested in the ethics and politics of how researchers flatten lives and experiences to become legible and accessible to the reader. Scholarship's emphasis on precision cuts away important details. Who was set aside as an aberration or too much information when Ms. Molnar and I selected cases to compress into Amir, or when Liisa Mallki used a composite approach to narrate refugee experiences in Burundi, or when Mary Bosworth laboriously selected representative quotations from anonymized detainees in the British detention system? What does it mean to narrate a life or a composite life, and how do we approach the fraught dilemmas of representation, profit, accountability, and aims of scholarship in a settler-colonial context? Through our thoughts and actions as well as methodologies and publications, detention studies scholars must pivot and re-orient more deliberately toward Sliding Door 4. In order to de-colonize scholarship and build a new, anti-racist body of writing on immigrant justice, we need to find new ways to value divergent experiences and narrations in the academy.
Acknowledgements
For their assistance and encouragement as well as for comments on various drafts of this article, I would like to thank Sharry Aiken, Esra S. Kaytaz, Daniel J. Lowinsky, Petra Molnar, and Falak Mujtaba; a special thanks to Torrey Shanks for suggesting the sliding doors format. For the space to write this article, I would like to thank Mette-Louise Berg and the other editors of Migration and Society. Finally, I would like to thank the two anonymous peer reviewers for their deeply thoughtful engagement with this project and for offering a transformative set of comments and suggestions.
Notes
Ontario Superior Court of Appeals, Chaudhary v. Canada [2015] ONSC 1503 (CanLII).
May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 19; R. v. Gamble, [1988] 2 S.C.R. 595, at p. 645, cited in Chaudhary Para 38.
Mission Institution v. Khela, [2014] 1 SCR 502, 2014 SCC 24.
Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29 [Chhina]. We should keep in mind that Canada removed Mr. Chhina two years before his case made it to the Supreme Court. By the time of his removal, Mr. Chhina had spent nearly two years on lockdown for 22.5 hours per day at the Calgary Remand Centre. He received no financial compensation, apology, or visa to return to Canada.
As Ruth Wilson Gilmore puts it, “The ‘terrible few’ are a statistically insignificant and social[ly] unpredictable handful of the planet's humans whose psychopathic actions are the stuff of folktales, tabloids (including the evening news and reality television), and emergency legislation. When it comes to crime and prisons, the few whose difference might horribly erupt stand in for the many whose difference is emblazoned on surfaces of skin, documents, and maps—color, credo, citizenship, communities, convictions” (2007: 15–16).
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