Vox
By Dara Lind
July 29, 2015
It's
been over a year since the administration started detaining hundreds of
families crossing into Texas from Central America. And that year has
been marked by failure
after failure.
The
original plan was to hear families' asylum cases quickly, and deport
them as soon as possible; that failed once some detainees were able to
meet with lawyers and get
their asylum claims upheld. Then the plan was to detain families for
the months it took to resolve their cases. That plan fell through
earlier this year, after a court ruling, and then a new administration
policy, accepted that mothers and children who'd passed
their initial interviews didn't need to be kept behind bars.
Now
the administration's family detention experiment is at risk of being
outlawed entirely. Over the weekend, a federal judge ruled that the
family detention system violates
a 20-year-old policy that sets high standards for detained immigrant
children; this week, judges started ruling that detained families should
be released immediately.
The
administration has the opportunity to keep fighting the courts and
preserve its ability to keep immigrant families behind bars. But why
would it want to?
A federal judge has ruled that family detention violates the government's own rules for keeping immigrant children
There
are strict legal standards for when and how the government could
legally keep children in immigration detention. Those were set in 1996,
when the government settled
a lawsuit filed by advocacy groups, an event known the Flores
settlement. Under the terms of the Flores settlement, the government has
to hold children in the least restrictive conditions possible. That
generally means "unsecured" facilities (in other words,
places that run more like shelters than prisons) that are licensed for
taking care of children.
Immigrant
rights advocates invoked the Flores settlement to challenge the current
detentions. The government argued that key parts of Flores didn't apply
because the children
were being detained with their parents. But on Friday, after months of
negotiation, federal Judge Dolly Gee sided with the advocates. She ruled
that the government was holding children in secured, prison-like,
unlicensed facilities, and that violated the 2015
agreement.
Gee's
ruling was harsh. She called it "astonishing" and "shocking" that 20
years after the Flores agreement, the government still hadn't figured
out how to meet its own
standards for humane treatment of children.
The
government has a week to demonstrate that the changes Gee demanded
shouldn't go into effect — and it could choose to appeal the ruling to
the Ninth Circuit Court of
Appeals. But in the meantime, Judge Gee's ruling is already changing
how judges look at cases of mothers in detention. This week, judges have
been allowing detained mothers to get released immediately while
they're waiting for the courts to process their cases.
The Obama administration ended immigrant family detention in 2009 — and brought it back in 2014
The
irony is that it's the Obama administration itself that ended the last
experiment in detaining immigrant families: the Hutto Residential Center
in Texas — a 512-bed
former jail that the Bush administration opened in 2006. The American
Civil Liberties Union sued Immigration and Customs Enforcement the year
after the facility opened, saying that it didn't meet the terms of the
government's Flores settlement. A 2007 report
from advocacy groups Lutheran Immigration and Refugee Service and the
Women's Refugee Commission claimed that Hutto was essentially still
being run like a prison, with locked doors and very tight schedules.
Children weren't getting enough to eat, and had one
hour of schooling a day. And guards separated kids (some as young as 6)
from their parents as a way of disciplining them.
It
was the Obama administration that actually stopped detaining families
at the Hutto facility, in 2009 — which advocates took as an admission
that "there's no way to
detain families humanely." But in 2014, in the midst of a panic over
the "surge" of Central American children and families into the US, the
administration reversed course. They started holding hundreds of
families in a makeshift facility in New Mexico, and
built a pair of permanent family detention centers. Right now, more
than 3,000 immigrant mothers and children are in detention.
"I didn't feel like I was alive in that place"
In
the words of former American Immigration Lawyers Association head Laura
Lichter, who started representing detained families pro bono in August,
family detention was
a "shitshow" from the very beginning. Judges wouldn't let lawyers speak
during hearings, and guards strictly limited the access that lawyers
got to their clients outside of the courtroom — making it hard for
lawyers to put together the information that would
prove families qualified for asylum. Plenty of families simply got
deported without ever seeing a lawyer.
But
once lawyers began to get access and help clients build cases for
asylum, families started winning the early stages of their court cases,
or appealing them after a
loss — but were often still kept in detention while those cases were
resolved. And conditions in detention were terrible.
The New York Times Magazine reported in February:
The
detainees reported sleeping eight to a room, in violation of the Flores
settlement, with little exercise or stimulation for the children. Many
were under the age of
6 and had been raised on a diet of tortillas, rice and chicken bits. In
Artesia, the institutional cafeteria foods were as unfamiliar as the
penal atmosphere, and to their parents’ horror, many of the children
refused to eat. "Gaunt kids, moms crying, they’re
losing hair, up all night," an attorney named Maria Andrade recalled.
Another, Lisa Johnson-Firth, said: "I saw children who were malnourished
and were not adapting. One 7-year-old just lay in his mother’s arms
while she bottle-fed him." Mary O’Leary, who
made three trips to Artesia last fall, said: "I was trying to talk to
one client about her case, and just a few feet away at another table
there was this lady with a toddler between 2 and 4 years old, just lying
limp. This was a sick kid, and just with this
horrible racking cough."
Once
the government replaced its temporary detention centers with permanent
ones, conditions improved slightly. But advocates continued to point out
that the government
was detaining children with serious health conditions. A letter sent to
DHS by House Democrats last month said that:
we
have learned of the detention of children with intellectual
disabilities, a child with brain cancer, a mother with a congenital
heart disorder, a 14-day-old baby, and
a 12-year-old child who has not eaten solid food for two months, among
many others. Recently, we learned of a three-year-old child at the Berks
County Residential Center who was throwing up for three days and was
apparently offered water as a form of medical
treatment. It was only after the child began throwing up blood on the
fourth day that the facility finally transferred her to a hospital.
A
child psychiatrist who had interviewed children at the Karnes facility,
the House Democrats' letter said, concluded they were "facing some of
the most adverse childhood
conditions of any children I have ever interviewed or evaluated."
Detention
was taking its toll on parents too. One mother from Honduras attempted
to kill herself in June by cutting herself with a broken ID badge. She
later told a reporter,
"I didn't feel alive in that place." The government deported her and
her son after the suicide attempt.
The government's justifications for family detention keep falling apart
Are
these really the "least restrictive conditions possible" for the
children in detention, as the Flores settlement requires? Advocates have
been skeptical for a long
time. That's why they filed the lawsuit on which Judge Gee just ruled.
And so have the courts.
Initially,
the government justified opening its detention facilities by saying
that Central Americans wouldn't want to come to the US to begin with if
they knew they would
be detained and possibly deported when they arrived. But in fall 2014, a
judge ruled that "deterring future immigration" wasn't a good enough
reason to keep a family in detention who's already here — if the
government wanted to keep a family in detention while
their case was processed, it needed to demonstrate that that particular
family needed to be there.
So
the government started saying that if a particular family in detention
got released, they would try to escape. But last month, they quietly
dropped that objection as
well. While negotiating the current court case with advocates and Judge
Gee, they put out a memo saying that families would be released once
they'd passed the initial stage of their asylum applications. But that
wasn't enough for advocates, or for the courts.
Meanwhile,
the entire reason the government started detaining families last year
to begin with — the "border surge" — isn't really an issue anymore, for
reasons that have
very little to do with how families in the US are being treated. So the
government is essentially fighting for the flexibility to detain
immigrant families in case something like this happens in the future.
How badly does the Obama administration need to save face?
The
administration is also trying to save face. In summer 2014, it
responded to the political crisis of the "border surge" by ramping up
immigration enforcement. In November
2014, it issued sweeping executive actions on immigration that would
have allowed up to 5 million of the nation's current unauthorized
immigrants to apply for deferred action — protection from deportation —
and work permits. Fast-forward to summer 2015, and
both those initiatives are on the ropes.
The
centerpiece of Obama's executive actions — and the program he was
hoping to hang his immigration legacy on — was the expansion of deferred action. But that's been
stalled in the courts since February. It's unlikely that expanded
deferred action programs are going to go into effect anytime soon, and
the government has quietly stopped preparing to implement them.
Now,
with last week's decision, the administration's biggest second-term
initiative on border security is also endangered. Judge Gee's ruling
doesn't straight-up say that
it's impossible to detain immigrant families humanely, but it certainly
tells the administration that to do it humanely they'd need to start
from scratch. The administration has two options: keep fighting for
family detention in court, or admit that the experiment
has failed for a second time. The question is whether their desire to
avoid outright defeat is strong enough that they'll keep fighting to
preserve a policy everyone but them appears to believe is inhumane.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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