The Department of Justice has asked a federal court to modify a court settlement that restricts the federal government from detaining migrant children indefinitely or in prison-like conditions.
Attorney General Jeff Sessions filed a motion Thursday calling for the court to allow for the indefinite detainment of migrant families, and to lower the standards for family detention centers. This comes a day after President Donald Trump issued an executive order halting the separation of families at the Mexican border — but stopping short of curtailing the “zero-tolerance” policy that causes the separation in the first place. Trump’s order also instructed Attorney General Jeff Sessions to file the motion.
The settlement in question, known as Flores, gives children more protections than adults in the immigration system: They are not allowed to be held for more than 20 days if they are detained with their parents, and centers where children are detained must be less like prisons and more like childcare facilities. Sessions wants to abolish those safeguards.
In the motion, which was filed with District Court Judge Dolly Gee in Los Angeles, Sessions writes: “These changes are justified by several material changes in circumstances — chief among them the ongoing and worsening influx of families unlawfully entering the United States at the southwest border.”
Under the “zero-tolerance” policy, adult migrants were prosecuted for the misdemeanor of improper entry and sent to federal prison while their children were put into the care of the Department of Health and Human Services. The executive order says that the government should continue prosecuting all adults who cross the border between checkpoints, but instead hold families together in immigration detention for the duration of their criminal and immigration cases, a process that can take months or years.
If successful, Sessions' motion will allow them to hold children in detention longer. But there are many questions about how prosecutions can proceed logistically while families are housed together.
“President Trump’s executive order said that families need to stay in DHS [Department of Homeland Security] custody even during their criminal prosecution,” says Sarah Pierce, an immigration policy analyst at the Migration Policy Institute in Washington, D.C. The logistics of that, however, are complicated. It would require “mobile judges and mobile prosecutors who can go from room to room in the family detention center, prosecuting and charging these individuals with illegal entry. Unsurprisingly, the Department of Justice and our criminal justice system is not prepared to handle that.”
Resources pose another challenge. There are only three Immigration and Customs Enforcement (ICE) family detention centers in the United States. Two are in Texas: the South Texas Family Residential Center in Dilley and the Karnes County Residential Center in Karnes City; the third is the Berks Family Residential Center in Leesport, Pennsylvania. Berks is the oldest facility, in operation since 2001, and the only one that allows for fathers. ICE oversees the facilities but, in the case of the Texas centers, places their management in the hands of private, for-profit companies. Berks County manages the Pennsylvania center.
A government report released in April put the detention centers' total capacity at 3,326. Dilley is the largest facility which had 1,978 detainees as of June 20, while had Karnes held 589 people and and Berks had 56. An ICE spokesperson pointed to a June 2017 Department of Homeland Security Inspector General’s report, that said centers are “clean, well-organized, and efficiently run” and the agency was found to be “addressing the inherent challenges of providing medical care and language services and ensuring the safety of families in detention.”
The report also said, “At all three facilities, staff told us that some detainees questioned the need for some of ICE’s safety measures, such as requiring parents to be with their children in the residential areas, leaving lights on at night, and conducting welfare checks during the night. Although these safety measures are reasonable, we were not able to evaluate how well ICE and contract staff communicated the need for these measures to detainees."
“Kids can’t run or make noise, they can’t go outside with a guard, and everyone has to eat at a certain time. Kids lose weight,” says Carol Anne Donohoe, an immigration attorney in Pennsylvania who has represented families at the Berks center. “At Berks, one thing they do every night, every 15 minutes, is have the guards come in for bed checks. They shine flashlights in the rooms, in peoples’ faces, on the ceilings. We have the logs, 3,000 pages of bed check logs. It’s torture though sleep deprivation.”
A 2016 Homeland Security advisory committee concluded that the inspections and oversight of these facilities was woefully lacking. They recommended that DHS discontinue detaining families and asylum seekers. They pointed especially to privately run detention centers, and the extension of the contract with prison company CCA, now called CoreCivic, to operate the South Texas detention center.
“The Dilley contract extension makes it patently clear that DHS plans to continue doing big business with private prison companies at the expense of the most vulnerable in our midst — Central American children and mothers who remain detained for months, sometimes longer than a year, as they pursue their asylum claims in court,” the committee said.
Resources pose another challenge
But the Trump administration is assessing ways to rapidly expand family detention, including on military bases. It has ordered the Pentagon to hold potentially 20,000 migrant children on military bases, officials said Thursday.
Berks County said at a commissioner’s meeting on Thursday it is preparing to expand the Berks County Residential Facility, its family detention center. When asked if any children separated from their parents would be housed there, Commissioner Christian Y. Leinbach said, “we wouldn’t know that,” and that the facility has never held children alone and has only detained families seeking asylum. He said children get field trips and recreational opportunities.
The facility is “better than home conditions than many people experience in Berks County,” Leinbach said. “When I hear people say that we are harming children, hurting families at the BCRC, nothing could be further from the truth.”
The facility lost its Pennsylvania Department of Human Services license to operate as a childcare facility in February 2016 because of code violations. In April 2018, attorneys petitioned the department to order the release of current detainees because it continues to operate without this license. They say the facility is operating as a prison because it locks in families and punishes those who leave the grounds, even if they are children. Families are also being detained for long periods of time without having committed any crime.
“Detained individuals have neither been charged with nor adjudicated of any violation of Pennsylvania law,” the petition says. “Nor has a Pennsylvania judge ordered the incarceration of the detained families.”
In the past, when detainees were released from family detention, many were placed into alternative supervision programs that have included bond payments, ankle monitors or check-ins with immigration authorities as conditions for release.
Immigration attorneys also worry that “zero-tolerance” under Trump's executive order will lead to prolonged family detention.
“I remember in a very detailed way how terrible the Artesia detention center was, how the Obama administration tried to deport people without giving them a claim for asylum,” says Christina Brown, a lawyer in Denver who volunteered at a family detention center in Artesia, New Mexico. The facility that was shut down only months after it opened in 2014 amid allegations of due process failures. “It was a deportation mill in 2014, and I can’t imagine that these centers will be better under Trump.”
Meanwhile, in addition to the detention center for migrant teens created this month in Tornillo, Texas, is the plan to detain 20,000 children on military bases. This is similar to what the Obama administration did in 2014, when it installed temporary shelters at military bases as thousands of migrants from Honduras, El Salvador and Guatemala crossed the southwest border.
It is unclear whether the military facilities would, or legally can, hold families. The Obama-era shelters housed unaccompanied children only.
“It's possible that the administration is just going to detain families and point to this motion that they have pending with the court and say, ‘Hey, we’re trying to ask permission to have the Flores settlement lifted, and we're going to go ahead and detain families until we hear final word from the court,’” Pierce says.
What you need to know about the Flores settlement
Trump and officials in his administration have blamed the 1997 settlement, which was reached in response to a class-action lawsuit, for causing family separations. The acting director of ICE, Thomas Homan, criticized it in remarks to a congressional committee. On Wednesday, in a meeting with lawmakers, Trump said that government needs to detain people because otherwise they would not show up for hearings. He lied about how often people released from custody don’t appear.
“If a family shows up at the border, and we let the family go into the country and say, ‘Please come back for your hearing,’ about 80 percent of the time the adults never show up for the hearing,” Trump said. “The other choice is, if you detain the parents who broke the law, under the Flores decision, you have to break the family up.”
Actually, the percentage of people who don’t show up for hearings after being released from detention is much lower. A study of government data by the Transactional Records Access Clearinghouse at Syracuse University found that found that very few people, when released on bond, failed in appear for their hearings. In fiscal year 2015, the most recent year for which complete data is available, for example, just 14 percent didn’t appear and were ordered removed.
The original Flores lawsuit was filed by the American Civil Liberties Union on behalf of 15-year-old Jenny Lisette Flores, who fled El Salvador and was detained at the border. The ACLU argued that unaccompanied minors like her had the constitutional right to be released to responsible adults. Flores wanted to find an aunt who lived in the US.
The case ping-ponged through appeals courts before landing in the Supreme Court in 1993. But more consequential than the high court decision, which largely sided with the government, was a settlement reached between the plaintiffs and the Bill Clinton administration in the Ninth Circuit Court of Appeals four years later. This decree guides the standards for migrant children in federal custody today. Under the agreement, unaccompanied minors were required to be released from detention as soon as possible, and held in the least restrictive conditions possible.
As immigration practices changed over the years, so did the standards mandated under Flores. In 2014, the Ninth Circuit ruled that Flores should pertain not just to unaccompanied children, but also those who arrive with their families. It gave the government 20 days keep children in custody. It did not say that parents had to be released as a rule, but the government has made a practice of releasing whole families together while they await court dates.
The Trump administration has chosen to criminally prosecute all migrants who enter the country without authorization, but it blames the Flores settlement for forcing them to separate children from their families when they arrest adults.
“The government would like to get out from under the requirements of this settlement agreement,” says Anil Kalhan, a law professor at Drexel University. Doing so would allow the Trump administration to set its own standards for how asylum-seeking children and families are detained. Kalhan guesses that the Department of Justice will eventually try to get the case back to the Supreme Court where, he says, “they have a favorable audience.”