How to Not Detain Children: The United States Fails to Treat Immigrant Children Who Come Seeking Protection with their Mothers Fairly, Humanly, or Legally

by Sara Ramey

The following commentary is based on more than two years of working as a Staff Attorney at the Texas-based non-profit, non-governmental organisation RAICES (Refugee and Immigrant Center for Education and Legal Services). Founded in 1990 to promote justice by providing free and low-cost legal services to underserved immigrant children, families, and refugees, RAICES has run a Pro Bono Project at the Karnes detention centre since the U.S. government began to detain families there in August 2014. The Pro Bono Project helps detained women and children understand the immigration process, prepare for their asylum interviews, and appeal erroneous decisions. At the beginning of 2015 RAICES also began operating a shelter in San Antonio to help released families. During my time at RAICES I have seen firsthand how the conditions in the detention centres negatively impact childrens development and limit mothersability to care for their children. This commentary outlines how the U.S. government has repeatedly failed to treat immigrant children accompanied by their mothers fairly, humanely or legally, despite the existence of better alternatives.

Introduction

International human rights law (Hamilton 2011) and the United States Constitution state that no one should be deprived of their liberty unless necessary and then only to the extent necessary.[1] The United States government, unfortunately, appears to have forgotten this. In the summer of 2014, overwhelmed by large numbers of immigrant families arriving in the United States, and instead of pursuing alternatives to detention, the federal government signed and modified contracts with the private, for-profit prison industry to detain immigrant families (CCA-ICE Contract and GEO Group), the vast majority fleeing from violence in El Salvador, Honduras, and Guatemala.

Almost overnight, the U.S. government’s detention of accompanied children and their mothers increased exponentially, with bed space rising from 84 to 3,653.[2] This was a significant change in policy, especially considering that the Obama Administration had previously stopped detaining families at the Don T. Hutto detention centre in August 2009 (Gogolak 2015) after widespread condemnation of the conditions and the treatment of children (Talbot 2008) and after important legal wins confirmed that children could not be detained in such conditions (In Re Hutto Family Detention Center).

The default should be liberty, not incarceration.

The U.S. government has put forward no valid argument as to why the detention of children accompanied by their mothers—and in secure facilities no less—is necessary. The decision to detain should be made on an individual, case-by-case basis and only for such legitimate purposes as protecting the community or preventing flight. The default should be liberty, not incarceration.

Unequal Treatment of Accompanied Children

In 2003, the Bush Administration transferred the detention of unaccompanied children to the Office of Refugee Resettlement (ORR) in order to better comply with the 1997 Flores Settlement Agreement, where the U.S. government agreed it would hold unaccompanied children in the least restrictive setting possible during the initial processing of their cases. Initial case processing includes the confirmation of identity, explanation of the legal process, and travel arrangements to reunify with family.

In mid-2014, instead of pursuing alternatives to detention, such as the less restrictive ORR shelters where unaccompanied children are held, the Obama Administration signed and modified contracts with the private, for-profit prison industry to detain accompanied children and their mothers (CCA-ICE Contract and GEO Group), operating on the false assumption that children detained with one of their parents do not have the same needs as children detained alone.

However, the needs of children do not change simply because they are accompanied by their mothers. While in a normal situation, mothers would be able to care for their children, in detention a mother’s ability to provide for the needs of her children is significantly restricted. Her ability to educate, guide, discipline, and care for her children as they develop is diminished, and the mother-child relationship is damaged when Immigration and Customs Enforcement (“ICE”) gives GEO Group and CoreCivic (previously CCA) control over basic decision-making like food choice/nutrition, bed time, and lodging arrangements. Mothers and children are often housed in the same room with other families—despite Texas childcare standards that make it illegal to house children with unrelated adults, which in the worst cases have led to instances of sexual abuse (Planas 2016).  It is not uncommon to witness released children at the RAICES shelter exhibit behavioural problems.

In addition to diminishing the mother’s role in her children’s upbringing, the detention centres do not fill the gap in providing the support and education children need. For example, there is not one paediatric nurse or doctor at the Karnes detention centre. Mothers cannot choose to take their children elsewhere for medical attention. This is clearly a problem when the medical staff proves incompetent, such as when staff at the South Texas Family Residential Center accidentally gave about 250 children an adult dose of the Hepatitis A vaccine, unnecessarily putting the children’s health at risk (AILA). Or when a child’s pneumonia was not diagnosed despite fever and vomiting and, on release, the RAICES shelter had to rush her to the hospital for emergency care.

Despite certain modifications such as the installation of playgrounds, the building was built to be a jail.

But the problems run deeper than lack of ability to choose your child’s healthcare provider, decide what your child eats, where your child sleeps or establish important ground rules. The Karnes detention centre is not designed for children. Despite certain modifications such as the installation of playgrounds, the building was built to be a jail.[3] Children detained at Karnes are held behind double locked metallic doors, housed in cell blocks. Besides the playground, there is little outdoor recreation space, which especially impacts the older children.

 

In one example of the government not understanding the developmental needs of children, ICE advised the RAICES Pro Bono Project that we could no longer bring crayons or other colouring items into the Karnes detention centre because a child had drawn on a table and ‘caused property damage to the contractor’ (Hestor 2016).

Compare these conditions to those of unaccompanied children held in ORR shelters. Although these are still detention facilities with problems of their own, in general, these shelters offer a more welcoming environment with recreation space, sometimes including swimming pools. Children are taken on field trips and each child is provided a free legal consultation to help them understand their rights and responsibilities under U.S. law. ORR does not treat children as criminals but as children with developmental, educational, and legal needs. This is in large part thanks to the Flores Settlement Agreement.

Fight in the Courts over Detention Conditions

The U.S. government has tried to argue that the 1997 Flores Settlement Agreement does not apply to accompanied children. However, on 24 July 2015, immigrant advocates won a ruling by Federal District Court Judge Gee that the 1997 Flores Settlement Agreement does apply to accompanied children (Flores v. Johnson). This means that the government should not detain children longer than necessary and no more than five days, except where there are extenuating circumstances (then 20 days may be permissible). It also means that children should not be detained in secure facilities where they are locked up or in facilities not licensed for the care of children. Judge Gee’s decision was later upheld by the Court of Appeals for the 9th Circuit on 6 July 2016 (Flores v. Lynch).

After Judge Gee’s decision, in a misguided attempt to convince the courts that the family detention centres are appropriate for children, the Obama Administration approached the Texas Department of Family and Protective Services (DFPS) and asked it to license the country’s two largest family detention centres as childcare facilities. Both centres are about an hour’s drive south from San Antonio, Texas, where the private, for-profit companies GEO Group and CoreCivic detain children as young as two years old (and occasionally younger).

That the U.S. government would consider either detention centre to be a childcare facility is absurd. Although there is a daycare at both detention centres, ICE requested that DFPS license not only the daycare but the whole detention centre. The daycare at the Karnes detention centre, for example, is open only from 8 am to 5 pm and has the capacity to care for only about 80 out of approximately 350 children. There is no childcare staff in other parts of the detention centre—the GEO Group has provided nominal training to its employees but even after this training I would still see guards get angry at young children for playing outside the 5’x7’ designated carpet play space in the visitation area and generally be unwilling to deal with the children’s needs while their mothers engaged in important legal meetings with me and my colleagues. After all, these guards are not childcare staff and should not be required to take on the extra responsibility of caring for children. Perhaps ICE thinks that it is a childcare facility because the mothers are there to care for their children; but that argument would make every home in the state of Texas a childcare facility regardless of the conditions or standard of care provided.

On 29 April 2016, DFPS created a special rule to lower the childcare facility standards in order to be able to license the family detention centres and approved the Karnes detention centre as a childcare facility (Waslin 2016). DFPS conducted several visits when considering whether to issue a license to the Karnes detention centre. During one of their visits, they found noncompliance with several state childcare standards, including cleaning chemicals left out within the reach of young children. Nevertheless, DFPS granted the license, believing that their oversight was better than no oversight. While oversight of family detention is definitely needed, it should come through independent federal monitoring, not through a state childcare license. Furthermore, this is no reason to provide a lower standard of care to accompanied immigrant children than to unaccompanied children and other children in the state. It is unequal treatment and illegal.

Grassroots Leadership Inc., represented by Texas Rio Grande Legal Aid (“TRLA”), then sued to enjoin the issuance of a license at the South Texas Family Residential Center, where the licensing process was still ongoing. The plaintiffs argued that DFPS, as a state agency, did not have the authority to grant a license to a federal detention centre and that a special rule – created to lower the childcare facility standards in order to be able to license the detention centres – was invalid. On 2 December 2016, in a win for children’s rights, Texas District Court Judge Crump ruled that DFPS does not have the authority to issue childcare licenses to federal immigration detention centres (Grassroots Leadership Inc. v. Texas Department of Family and Protective Services).

Texas Government Moves to Lower Childcare Standards in Detention Centres

On 5 December 2016, the Texas Attorney General’s office decided to appeal Judge Crump’s decision on childcare licensing (Warren 2016). Then several Texas legislators, acting on a proposal from GEO Group, tried passing a bill to reduce the childcare standards for children who are in immigration detention so they can be licensed as “childcare facilities” (Hoffman 2017). This spring, advocates, doctors, and social workers presented public testimony in the Texas Legislature against Senate Bill 1018 and House Bill 2225, which would have DFPS license federal immigration family detention centres as state general residential operations and exempt them from minimum standards or rules if deemed necessary to operate. Despite these bills running counter to the best interests of the child and making the state complicit in the U.S. government’s misguided policy of unjustified mass incarceration of children, on 10 May 2017, the Texas Senate passed SB 1018 (Bova). On 11 May 2017, HB 2225 died in the Texas House (Grassroots Leadership).

Calling a detention centre a childcare facility does not make it one.

Immigrant children should not be treated any differently than other children in the state. In developing state standards, Texas officials have already put much thought into determining how childcare facilities should be run to best ensure the well-being and healthy development of the child. Calling a detention centre a childcare facility does not make it one. Not when actual childcare facilities have to follow other regulations to maintain a safe environment conducive to a child’s full and free development.

Lowering the standard of care to help the federal government incarcerate children, especially when those children do not need to be detained in the first place, is illogical and inhumane. It is contrary to American values of fair and equal treatment and at odds with the proper care for children. The proponents of SB 1018 and HR 2225 argued that without helping the federal government detain children, the federal government would be forced to separate children from their mothers. This is not true. There are reasonable, cheaper, and more humane alternatives to the imprisonment of children in detention centres.

Options for Initial Case Processing

When children first come to the United States, they are held in the hielera (Spanish for “ice box” because it is kept so cold and often only space blankets are provided). RAICES has heard numerous stories of how the food is substandard, children are separated from their parents to force their parents to sign deportation orders, verbal abuse is common, and sometimes physical or sexual abuse occurs. After the hielera, families are sometimes then transferred to the perrera (Spanish for “dog kennel” because of the bars on the cells).

There is no meaningful independent oversight of these Customs and Border Patrol (CBP) stations, and little accountability. Of 809 complaints filed between January 2009 and January 2012, action was only taken in 3% of cases where a decision was written. 40% of the complaints were for physical abuse and 38% were for excessive use of force (American Immigration Council 2014). There is no appeal from a CBP decision. This system must change.

Unlike unaccompanied minors who are transferred from CBP custody to ORR, accompanied children are transferred to a privately run ICE family detention centre. There is no clear reason why ICE cannot hold accompanied children and their mothers in ORR shelters similar to those for unaccompanied children for the initial processing of their cases. In addition to initial case processing, they must wait for an Asylum Officer to determine that they or their mothers have a significant possibility of winning an asylum case before they are released.[4] On the other hand, unaccompanied children can be reunified with family as soon as family is identified and travel arrangements can be made. This discrepancy results in unjustified prolonged detention of accompanied children and their mothers.

From August 2009 to August 2014, the vast majority of families were released after initial processing at a CBP station under an Order of Supervision with regular check-ins at an ICE office or, if the family had presented themselves at the border, on parole for a year with no ICE check-ins. The government can easily go back to using this policy.

Unsubstantiated Justifications for Family Detention

The U.S. government has not effectively explained why detention of families is necessary. To date, it has tried two arguments, both fundamentally flawed. First, the government tried to justify en mass detention of asylum seeking families by arguing that releasing them would create a threat to national security as it would theoretically encourage more immigrants to come. In 2015 a federal District Court in Washington D.C. found this reasoning unsubstantiated and legally unjustifiable and, therefore, ruled the government’s no-bond policy illegal (RILR v. Johnson).

Second, the U.S. government has made the occasional general statement that the families will abscond. Without making individual case-by-case determinations as required by law this position only serves to punish the individual for the presumed actions of others. Additionally, after the court decision in 2015 reversing the no-bond policy to May 2016, the government began releasing almost every family after passing their asylum interview, contradicting their own argument that the families will abscond.

The idea that someone is less likely to abscond if they pass an asylum interview is only logical on its face, not in practice. This is because, from the standpoint of the asylum seeker, the fact that someone in the family has passed an asylum interview does not significantly change her or his perception of their case (at least not as much as it changes the perception of U.S. government officials familiar with our laws and procedures).  While passing an asylum interview may mean that the asylum seeker has a significant possibility of succeeding under U.S. asylum law, almost all of the people I interviewed in 16 months working with detained families believed that they had a good case before ever having their asylum interview because they suffered persecution at home or knew they would face a serious risk of harm should they return. They do not know that U.S. law might not protect them.

Families cannot be kept in detention as possible flight risks on the basis that someone may sometime tell them they should not go to court and/or that they have a weak case. And there are ways to combat possible misinformation. Evidence suggests that access to counsel, case management programs, legal information programs, and community support all increase compliance. For example, according to the non-profit organisation Human Rights First, 98% of families attend their immigration court hearings when represented by counsel.

As of April 2017, about 81% of released families had pending cases or had attended court hearings, despite much confusion about the legal process (Transactional Records Access Clearinghouse April 2017). Almost every week during legal consultations, I speak with released families that are very confused about what they are supposed to do in their cases. For example, an asylum seeker might miss her one-year filing deadline because she does not understand that her appointments with ICE are not the same as her appointment with the judge and that telling ICE she is afraid is not enough to request asylum in the U.S. Similarly, some families do not understand that an asylum application must be filed formally with the court before a year has elapsed since arriving in the U.S. regardless of when a court hearing is scheduled. In San Antonio, Texas, many cases are not scheduled until November 2019 due to the case backlog and some asylum seekers may wait until their court date is closer to seek legal counsel, thereby inadvertently missing their one-year asylum filing deadline.

Conditions of Release

In May 2016, the government started putting an ankle monitor on every mother who passed an asylum interview, again without looking at the individual’s circumstances and without evidence that the individual is a flight risk.[5] In 16 months of working at the Karnes detention centre, I did not see even one family detained due to an individual determination of flight risk. It is unclear how an ankle monitor (which can be cut off) is supposed to increase compliance or why a mother should have to wait in detention multiple days before she is put on one and released.

More families can be placed in supervised release programs when they first arrive, which can include ICE check-ins and/or home visits. However, in most cases, there is no indication that even these measures would be necessary and/or helpful to ensure compliance with U.S. immigration laws.

There are hundreds, if not thousands, of people in the U.S. who have never been arrested by immigration and are seeking asylum affirmatively by mailing in their application to the Asylum Office and asking for an interview. While they are waiting for their asylum interview, they are living at home with their families. There is no reason that those picked up by immigration cannot be released to do likewise. In fact, changes could be made to allow the asylum office to make decisions granting asylum in these cases without the need to refer these cases to Immigration Court. This would save judicial resources and also help resolve the court backlog, which nationally tops 598,000 (Transactional Records Access Clearinghouse May 2017).

Besides being more in line with the law and humanitarian principles, these changes would save the taxpayer a lot of money. In the fiscal year 2016 (1 October 2015 to 30 September 2016), the government budgeted $342.73 a day per person to detain families in private, for-profit facilities (American Immigration Lawyers Association). DHS estimates that alternatives to detention during the same period averaged $5.16 a day (American Immigration Lawyers Association). The immigration detention industry is worth $2.3 billion and the prison lobby spends millions to keep it this way (Hunter 3 June 2016). In the first-quarter of 2016, GEO Group’s profits increased by 19% to $510 million in revenue and CCA’s profits increased five percent to $450 million in revenue (Hunter 3 June 2016). President Trump should uphold his promise to “clear the swamp” of the special interests and put children first.

The U.S. government should move away from the private, for-profit detention of children as recommended by 17 members, or two thirds, of the Homeland Security Advisory Council (National Immigrant Justice Center December 2016). Notably, in 2016 the Department of Justice stated that the Bureau of Prisons will be ending private control of adult prisons due to significant health and safety concerns.[6] It is only logical that ICE should do likewise, especially where the well-being of children is at stake.

As well established in international law (Hamilton 2011), the decision to detain should be made on an individual, case-by-case basis and only when necessary, and to the extent necessary, to prevent flight or danger to the community. It is time for the U.S. to comply with the law and immediately end the unnecessary mass incarceration of children.


Sara Ramey is an immigration attorney at the Texas non-profit RAICES, where she helps women and children detained at the Karnes County Family Residential Center who are fleeing from violence in Central America. She has represented asylum seekers before the Immigration Court, the Board of Immigration Appeals, and the Court of Appeals for the Fifth Circuit. Previously, she worked at ProBAR, a project of the American Bar Association (ABA), the American Immigration Lawyers Association (AILA), and the State Bar of Texas, where she helped detained asylum seekers at the Port Isabel Detention Center on the Texas-Mexico border. She has won over 30 asylum cases in U.S. courts and has published in the Oxford Monitor on Forced Migration, the Human Rights Brief, the International Lawyer, and Peace Review, among others. The views in this article are those of the author alone and do not necessarily represent the views of RAICES.


The views in this article are those of the author alone and do not necessarily reflect the views of RAICES or OxMo.


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[1]Convention on the Rights of the Child, Article 37(b): ‘No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’. Other international treaties also enshrine this principle (Hamilton 2011). Similarly, the 14th Amendment to the U.S. Constitution states the general principle that ‘nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’.

[2]In the summer of 2014, the U.S. government converted the 536 bed Karnes County Detention Center into what it renamed a Family Residential Center (later contracting to expand it to 1158 beds) and began to build the 2400 bed South Texas Family Residential Center. Previously, there was only one 84 bed family detention centre in the country in Berks County, Pennsylvania (now with 95 beds).

[3] The South Texas Family Residential Center was constructed specifically to house families; however it similarly fails to provide a child-friendly environment. A high fence and security cameras enclose the camp, consisting of rows of portable trailers. Asylum seekers must report to be counted three times a day. Children are sometimes woken up early in the morning. And the list goes on. TAKEI, Carl, ACLU, 21 May 2015, available from: https://www.aclu.org/blog/speak-freely/south-texas-family-residential-center-no-haven-its-internment-camp (accessed 18 June 2017)

[4] There are two additional problems with this approach. First, for about the first year and a half of operation at the Karnes detention centre, accompanied children were not independently and confidentially screened for protection needs, therefore the U.S. government was failing to give them their full rights to express fear. This is not a moot point: it is my understanding that recently the asylum office has stopped consistently conducting independent and confidential asylum interviews with children at the South Texas Family Residential Center, perhaps due to understaffing. Second, some children have other legal ways of staying in the United States, such as Special Immigrant Juvenile Status, that are not taken into account when determining for how long they need to remain in detention. In practice this means that a child may be deported when she or he has a legal way of remaining in the country, or that she or he will remain in detention longer while the family continues to fight their asylum case through either an Immigration Judge review or a Request for Re-interview with the Asylum Office.

[5] Ankle monitors are an unnecessary restriction on an individual’s liberty and are unduly punitive. They are not only painful (rubbing and burning and on occasion causing permanent scarring) but they make it difficult to lead a normal life. They affect everything from what a person wears (often long pants to avoid the social stigma that comes with seeing an ankle monitor), to how someone sleeps and showers.

[6] There have been at least two attempted suicides at the Karnes detention centre (San Antonio Current).