Children and Families IMMIGRATION SERIES PREPARED FOR THE LATINO COMMUNITY FOUNDATION OF COLORADO BY CÉSAR CUAUHTÉMOC GARCÍA HERNÁNDEZ
n the summer of 2014, children and families from Central America began arriving in the United States in increasingly large numbers. Unlike many
migrants who try to avoid contact with immigration officials,
providers, and journalists indicated that these migrants often went in search of Border Patrol officials to obtain humanitarian aid and request asylum in the United States. The Department of Homeland Security responded by detaining many of these children and families. This paper starts by addressing shifts in federal government policy toward children and family units. It then turns to unique considerations relevant to each of these populations and legal challenges raised by advocates for children and families.
A young boy from Mexico looks out the window of an immigration detention center in Brownsville, Texas. Photo credit: Eduardo Perez/Newscom
Shifting Policy Widespread detention of children conflicts with well-established principles of international law. The United Nations Convention on the Rights of the Child, never ratified by the United States, allows for limited use of detention for children. Article 37, which addresses detention generally, provides, “The arrest, detention or imprisonment of a child…shall be used only as a measure of last resort and for the shortest appropriate period of time.” 1 On multiple occasions, the Committee on the Rights of the Child has addressed immigration detention specifically and concluded that it is impermissible. As the Committee wrote in 2005, “Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof.” 2 Similarly, Special Rapporteur on Torture, having concluded that immigration detention “is inextricably linked—in fact if not in law— with the ill-treatment of children,” called on nations to abolish immigration detention of children.3 In the United States, the events of September 11, 2001 shifted federal detention policy regarding children and families. After the September 11 attacks, the now-defunct Immigration and Naturalization Service (INS) began separating children from their parents, treating the children as if they were unaccompanied, and releasing them. 4 Neither advocates nor legislators were happy about this. In 2005, a committee of the House of Representatives criticized the practice that DHS, created in 2003, had inherited from the INS. The committee instructed DHS to expand its use of non-custodial monitoring, but fell short of ordering DHS to stop detaining children. Instead, the committee’s report noted, “When detention of family units is necessary, the Committee directs DHS to use appropriate detention Cover photo by Eric Gay/AP - Detained immigrant children line up in the cafeteria at the Karnes County Residential Center, a temporary home for immigrant women and children detained at the border, in Karnes City, Texas.
U.N. General Assembly Convention on the Rights of the Child, art. 37(b). U.N. Comm. on the Rights of the Child, General Comment No. 6 on the Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, CRC/GC/2005/6, ¶ 61 (2005). 3 U.N. General Assembly Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/HRC/28/68, ¶ 69, 80 (2015). 4 Danielle Hawkes, Note, Locking Up Children: Lessons from the T. Don Hutto Family Detention Center, 11 J. L. & FAM. STUDIES 171, 172-73 (2008). 1 2
space to house them together.”5 DHS readily embraced this family detention option. Partnering with the Corrections Corporation of America (now known as CoreCivic), the largest private prison corporation operating in the United States, in 2006 DHS launched a detention center exclusively for families in a revamped former state prison in central Texas. Named after one of the companies’ founders, the T. Don Hutto Family Detention Center eventually came to include 512 beds.
Photo: Ilana Panich-Linsman/Redux
Soon after assuming office in 2009, the Obama administration announced that it would stop sending families to Hutto. The New York Times called this “the Obama administration’s clearest departure from its predecessor’s immigration enforcement policies.”6 It left in place a single family detention center in Berks County, Pennsylvania that fits about 100 people. Five years later, the Obama administration would reverse itself. In the summer of 2014, facing an increase in the number of children and families coming to the United States without the federal government’s permission, DHS added to its robust immigration detention system a rekindled attention to children and families. After operating a makeshift detention center at a remote New Mexico Border Patrol training facility, DHS again turned to private prison contractors CCA/CoreCivic and GEO Group, the second largest private prison corporation in the United States. Within months, CCA built and opened the South Texas Family Residential Center in remote Dilley and GEO started receiving detainees at the Karnes County Residential Center in Karnes City, Texas. Today, those two sites, plus the Berks County location, give ICE a capacity to hold approximately 3,600 family members each night.
H.R. Rep. 109-79, at 38 (2006) (Conf. Rep.). Nina Bernstein, U.S. to Reform Policy on Detention for Immigrants, N.Y. TIMES, at A1 (Aug. 5, 2009), http://www.nytimes.com/2009/08/06/us/politics/06detain.html. 6
Unaccompanied Minors Who is defined as an unaccompanied minor and how these children are treated by federal officials is guided by federal statutes and a two-decade old court-approved settlement agreement. Federal law defines an “unaccompanied alien child” as someone who is less than eighteen-years-old, lacks lawful immigration status in the United States, and either has no parent or guardian in the United States or there is no parent or guardian in the United States “available to provide care and physical custody.”7 In 2014, the number of unaccompanied minors apprehended by the Border Patrol along the nation’s Southwest border increased substantially (see Figure 1).
80,000 70,000 60,000 50,000 40,000 30,000 20,000 10,000 0 2008
Figure 1. Border Patrol apprehensions of unaccompanied children along Southwest border, by year. 8
Upon arrival, most unaccompanied minors who come to the attention of immigration officials do so through encounters with Custom and Border Protection (CBP) officers at ports-of-entry or with Border Patrol agents at or near the border. Once in the custody of CBP, the path forward depends on whether the child is a citizen of a contiguous country—Canada or México—or from somewhere else. CBP must transfer citizens of non-contiguous countries, including Central Americans, to the Office of Refugee Resettlement (ORR), a unit of the Department of Health and Human Services, within seventy-two hours of determining that a child meets the legal definition of an unaccompanied alien child.9 In contrast, CBP must screen citizens of Canada or México within forty-eight hours of apprehension to determine if the child can be voluntarily returned to the respective country of citizenship pursuant to a bilateral
6 U.S.C. § 279(g). DHS, Juvenile and Adult Apprehensions-Fiscal Year 2013 (FY 2008-12 data), https://www.hsdl.org/?view&did=734433; William A. Kandel, Unaccompanied Alien Children: An Overview (2016) (FY 2013-15 data); Jeh C. Johnson, United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016 (Oct. 18, 2016) (FY 2016 data), https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016. 9 8 U.S.C. § 1232(b)(3). 3 8
repatriation agreement. A child cannot be voluntarily returned if CBP determines that the child might be a victim of human trafficking or be able to raise an asylum claim under United States law. 10 If CBP concludes that there are no indicia of trafficking and no viable asylum claim, the child is removed from the United States. If either condition is present, CBP must transfer the child into ORR’s custody. Once in the hands of ORR, unaccompanied children are to be placed in the “least restrictive setting that is in the best interests of the child.”11 ORR typically delegates this responsibility to state-licensed facilities with which it contracts. Federal law prohibits ORR from placing a child in a “secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.” 12 ORR is obligated to attempt to reunite children with family members in the United States or other responsible sponsors.13 Detained children are subjected to substantially less restrictive conditions because of an earlier moment in history— the 1980s—when large numbers of Central Americans came to the United States. In 1984, the INS adopted a policy that limited when children could be released from its custody.14 Many of the children detained by the INS in that era were required to undergo routine strip searches and body cavity searches after meeting with anyone attorney.
After almost a decade of
litigation, the INS agreed to limit its detention of children by relying on “the least restrictive setting appropriate” for children and favoring a policy of release from
agreement, often described as the Flores settlement after the case’s lead plaintiff,
procedures that the INS should use upon arresting a child. 16 The federal court in California that oversees the 1997
concluded that the detention of children since 2014 is covered by the two-decade old order even though the INS’s functions have since been
Photo by Eric Gay/AP. Detained immigrant children line up for lunch at Karnes County Residential Center
delegated to ICE and CBP within DHS.17
8 U.S.C. § 1232(a)(2)(A). 8 U.S.C. § 1232(c)(2)(A). 12 Id. 13 8 U.S.C. § 1232(c)(3)(A); Flores v. Reno, CV 85-4544-RJK, ¶ 14 (C.D. Cal. Jan. 17, 1997), available at https://www.aclu.org/files/pdfs/immigrants/flores_v_meese_agreement.pdf. 14 Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016). 15 Flores v. Meese, 681 F. Supp. 665, 666 (C.D. Cal. 1988), rev. on other grounds, Reno v. Flores, 507 U.S. 292 (1993). 16 Flores v. Reno, CV 85-4544-RJK (C.D. Cal. Jan. 17, 1997), available at https://www.aclu.org/files/pdfs/immigrants/flores_v_meese_agreement.pdf. 17 Flores v. Johnson, 212 F. Supp. 3d 864, 871 (C.D. Cal. 2015), aff’d by Flores v. Lynch, 828 F.3d 898, 905 (9th Cir. 2016). 11
Family Units At the same time that the number of unaccompanied children coming to the United States increased, the number of family units arriving did as well. ICE responded with detaining many families at the Karnes, Dilley, and Berks facilities. Only the Berks site accommodates fathers. 18
90,000 80,000 70,000 60,000 50,000 40,000 30,000 20,000 10,000 0 2012
Figure 2. Border Patrol apprehensions of family units along Southwest border, by year. 19
Because detention imposes a heavy burden on the confined individuals, numerous parties have condemned the practice of family detention. In 2015, the American Academy of Pediatrics wrote to then-Secretary of Homeland Security Jeh Johnson about its “concern that continued detainment of any children and mothers…puts them at greater risk for physical and mental health problems and unnecessarily exposes children and mothers to additional psychological trauma.”20 Shortly thereafter the American Bar Association’s Commission on Immigration claimed that “detention necessarily impinges on the families’ due process right to access to counsel for legal information and representation, and in turn negatively impacts their ability to pursue legal relief based on the merits of their claims.”21 As with unaccompanied children, advocates lodged numerous challenges against the federal government’s use of family detention. In 2014, government attorneys argued in favor of detaining families as a means of deterring others from coming to the United States. Deterrence is a well-accepted reason for imprisoning people convicted of crimes, but courts have consistently rejected it as a basis for detaining people accused of nothing more than violating civil
Leigh Barrick, DIVIDED BY DETENTION: ASYLUM-SEEKING FAMILIES’ EXPERIENCES OF SEPARATION 10 (2016).
Jeh C. Johnson, United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016 (Oct. 18, 2016) (FY 2012-16 data), https://www.cbp.gov/newsroom/stats/southwest-borderunaccompanied-children/fy-2016. 20
Sandra G. Hassink, President, American Academy of Pediatrics, to Jeh C. Johnson, Secretary of Department of Homeland Security (July 24, 2015), available at https://www.aap.org/en-us/advocacy-and-policy/federaladvocacy/Documents/AAP%20Letter%20to%20Secretary%20Johnson%20Family%20Detention%20Final.pdf. 21
AM. BAR ASSOC. COMM. ON IMMIGR., FAMILY IMMIGRATION DETENTION: WHY THE PAST CANNOT BE PROLOGUE 6 (2015), https://www.americanbar.org/content/dam/aba/publications/commission_on_immigration/FINAL%20ABA%20Family%20Det ention%20Report%208-19-15.authcheckdam.pdf. 5
immigration law. In February 2015, a federal court in Washington, D.C. continued this trend when it held that the government’s practice violated the Constitution’s Due Process Clause. 22 That same month, advocates asked a federal court in California to extend the Flores settlement to children accompanied by their parents as well as the parents. The district court agreed, but an appellate court curtailed the decision, concluding that the agreement applies to accompanied children, but it does not apply to the adults.23 This means that DHS is required to move children into the least restrictive custodial environment and presume that they ought to be released, but it does not have to take such steps toward their parents. Meanwhile, ICE continues to keep families detained in its three sites in Texas and Pennsylvania, claiming that they are held in licensed child-care facilities and thus in compliance with Flores. In both states, advocates have filed lawsuits to strip the detention centers of state licenses required to operate. They have met with some success. In Texas, a state court found that state regulators violated state law by licensing the Karnes and Dilley detention centers as child-care facilities.24 That case remains on appeal. In Pennsylvania, the state Department of Human Services revoked the Berks County facility’s operating license in January 2016, but it could continue operating while the case was appealed.25 Approximately fifteen months later, the license revocation was overturned.26 An appeal is pending.27
Women and children sit in a holding cell at a U.S. Border Patrol processing center after being detained by agents near McAllen, Texas, in September. (John Moore / Getty Images)
R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 189-90 (D.D.C. 2015).
Flores v. Lynch, 828 F.3d 898, 908-09 (9th Cir. 2016).
Grassroots Leadership, Inc. v. Tex. Dept. of Family & Protective Srvcs., No. D-1-GN-15-004336, 2016 WL 9234059 (Tex. Dist. Ct. Dec. 16, 2016). 25
Matthew J. Jones, Director, Pennsylvania Department of Human Services to Diane Edwards, Executive Director, Berks County Commissioners (Jan. 27, 2016), available at https://www.documentcloud.org/documents/2701231-Berks-CountyResidential-Center-in-Pennsylvania.html. 26
Adjudication, Berks County Residential Center, BHA Docket No. 061-16-0003 (April 20, 2017), available at https://www.documentcloud.org/documents/3677455-BHA-Decision-4-20-17.html. 27
Petition for Reconsideration, Berks County Residential Center, BHA Docket No. 061-16-0003 (May 5, 2017), available at http://dhs.pa.gov/cs/groups/webcontent/documents/document/c_261048.pdf. 6
César Cuauhtémoc García Hernández is an associate professor of law at the University of Denver and publisher of the blog crimmigration.com.
The 2017 Immigration Detention series was commissioned by the Latino Community Foundation of Colorado. Thank you to the Abarca family for supporting this work.
600 South Cherry Street, Suite 1200 Denver, Colorado 80246 303.398.7405 latinocfc.org email@example.com
Published on Dec 8, 2017