Cosmopolitan Democracy and the Detention of Immigrant Families

45 Pages Posted: 15 Jun 2016 Last revised: 19 Oct 2017

See all articles by Rebecca Sharpless

Rebecca Sharpless

University of Miami - School of Law

Date Written: June 14, 2016


The United States has engaged in shifting decisions about the mass detention of immigrant families from Central America. Faced with a “surge” of women and their children crossing the border without authorization, the United States dramatically increased its capacity to detain immigrant families from about a hundred to over three thousand. Immigration officials vowed to hold the family members, most of whom were seeking asylum, until their cases were complete. Yet six months after opening a mammoth family detention center, the Secretary of Homeland Security announced that the U.S. government was making “substantial changes” to its family detention policy and would discontinue long-term detention of women traveling with their children who had made a threshold showing for asylum. Lawyers, law students, and other advocates mobilized to represent the families and played a pivotal role in reversing the decision to detain the families for the long term. Today, families continue to cross the border and, at least for now, U.S. immigration authorities are abiding by their more humane detention policy.

This Article employs the cosmopolitan political theory of Seyla Benhabib as a framework for understanding the U.S. government’s actions regarding family detention and immigration policy change more generally. The United States’ decisions about how to treat the surge families reflects different ways of resolving what Benhabib identifies as a constitutive tension of liberal democracies: that between principles of universal application, like human dignity and freedom of movement, and concerns relating to self-determination, like border control. Benhabib subscribes to a discourse theory of democratic change that is both normative and descriptive about the role of rationality in establishing norms and institutions in liberal democracies. But the shift in family detention policy was largely the result of strategic lawyering, mobilizing, and resistance strategies, not rational dialogue within government and civil society. This Article examines the limitations, and radical possibilities, of how immigrants and their advocates might edge the United States toward Benhabib’s vision of a cosmopolitan democracy with more porous boundaries.

Keywords: family detention, immigration, detention, cosmopolitan, political theory, Benhabib, discourse theory, Central America

Suggested Citation

Sharpless, Rebecca A., Cosmopolitan Democracy and the Detention of Immigrant Families (June 14, 2016). 47 N.M. L. Rev. 19 (2017), University of Miami Legal Studies Research Paper No. 16-28, Available at SSRN:

Rebecca A. Sharpless (Contact Author)

University of Miami - School of Law ( email )

1311 Miller Drive
Coral Gables, FL 33146
United States

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