The detention of immigrant parents and children since last summer’s surge of migrants arriving at the southern border has sparked a debate about the legality of immigrant family detention practices. While the treatment of immigrant minors has been protected by legal settlements and codified into law, the lack of family detention standards beyond the Department of Homeland Security’s (DHS) discretionary power has reignited court battles over the applicability of an 18-year old legal settlement known as the Flores Settlement Agreement. The Flores Agreement created legal standards for the detention and treatment of immigrant minors, which generally grants them a “policy favoring release” without unnecessary delays. If detained, children should be placed in the least restrictive setting possible in “unsecured” facilities licensed to care for children.
While many immigrants’ rights groups have long claimed that Flores applies widely to family units being held in detention because of the presence of minors, both the Obama and Bush administrations have denied this in legal proceedings. Since previous court cases have been settled between defendants and the federal government, no court had previously ruled that the Flores Agreement unambiguously applied to family detention. This all changed last week, when a federal judge rejected the Obama administration’s claim that Flores did not apply and ordered that DHS release currently-detained children and their parents in accordance with the agreement.
Family Detention Practices pre-2014
Immigration detention is the practice of holding unauthorized immigrants in detention facilities while they wait to appear in immigration court or are removed from the United States. The federal government has broad authority to detain unauthorized immigrants, and detention has been used throughout the country’s history. Immigration and Customs Enforcement (ICE) prioritizes detention space for immigrants that are subject to mandatory detention, pose a risk to public safety if released, or are at risk of absconding.
Family detention refers specifically to holding unauthorized immigrant parents and children in detention facilities awaiting their immigration court hearing. According to ICE, “like single adults, family units apprehended at the border may be placed into expedited removal proceedings and detained,” but this practice has been limited because DHS generally maintained only 90-100 beds for family units in the Berks Family Residential Facility in Pennsylvania. Additionally, before the early 2000s, family units were hardly ever detained, but rather processed and released with a notice to appear at immigration court, especially if they met the credible fear of persecution criteria for a claim to asylum. After the September 11 attacks, ICE began to tighten its “catch and release” policy for all apprehended unauthorized immigrants, including family units, citing their failure to appear in court and concerns that adults were renting or taking children to pass off as a “family.” Due to lack of space, ICE began detaining parents while transferring children to the Department of Health and Human Services’ Office of Refugee Resettlement, which is common practice for unaccompanied children.
Congress in 2005 became aware of the practice of separating children from their parents and directed DHS change their policy and encouraged the agency to release families or use alternatives to detention whenever possible, adding, “When detention of family units is necessary, the Committee directs DHS to use appropriate detention space to house them together.”
Although Congress seemed to indicate that detention should be a last resort, ICE expanded their detention capacity by opening the T. Don Hutto Correction Center in Texas in 2006. The Hutto facility, which was previously a medium-security prison, added 512 beds to ICE’s family detention capacity. After settling lawsuits brought forward by ACLU, which accused DHS of holding children in prison-like conditions in violation of the Flores Agreement (discussed below), and critical news coverage, ICE stopped detaining families in the Hutto facility in 2009. Between 2009 and 2014, the small Berks facility was the only family dentition facility in operation.
2014 Migrant Influx
Immigrant family detention was expanded dramatically for the first time since 2009 after the surge of unaccompanied children and family units arriving at the southern border last summer. In FY 2014, the U.S. Border Patrol apprehended a total of 68,445 family units, a 361 percent increase over FY 2013’s 14,855. The administration announced that it would begin detaining families throughout the duration of their immigration proceedings. In addition to its small existing Berks facility, DHS opened family detention facilities in Artesia, NM (650 beds), Karnes, TX (532 beds), and Dilley, TX (2,400 beds). The facility in Artesia was closed in December amid a lawsuit on behalf of immigrants detained at the facility accusing DHS tactics of preventing families from exercising their right to seek asylum and attempting to rush removal proceedings. At the time, DHS Secretary Jeh Johnson stressed that expanded detention was devised as part of a strategy to deter further immigrants from coming. In February of this year, however, a federal judge barred DHS from detaining immigrant families solely “for the purpose of deterring future immigration.”
The two new facilities in Dilley and Karnes remain open this year, and the president requested an increase in funds to continue operating the facilities in FY 2016. Specifically, DHS asked for an additional $345 million to fund up to 2,760 beds per night at an average rate of $342.73.
Family Detention Standards
While the detention of minors, particularly unaccompanied minor children, has long been codified in law and regulated and protected by legal settlements, the detention practices and standards involving families has been generally more ambiguous and left to DHS discretion and policy, leading to controversy and differing interpretation of applicable regulation. While ICE has its own guidelines for the detention of family units, there are no codified national family detention standards in law.
The treatment and detention of unaccompanied minors has primarily been regulated through the Flores Settlement Agreement of 1997 and the William Wilberforce Trafficking Victims Protection Reauthorization Act. For the purposes of family detention, the Flores Agreement has been the most relevant:
The Flores Agreement of 1997 was the result of years of litigation after a class-action lawsuit was filed against INS for its practice of processing and detaining minors. The settlement created a nationwide policy for the processing, detention and treatment of minors. The agreement defines minors as “any person under the age of eighteen years who is detained in the legal custody of the INS.” The terms of the agreement grant minors a “general policy favoring release” without unnecessary delays unless there is a public safety risk or a need to ensure appearance in court. The agreement also lays out specific legal standards when the temporary detention of children is necessary: children must be housed separate from unrelated adults in non-secure facilities that are licensed to care for children and meet minimum requirements to house them, including providing access to toilets and sinks, drinking water and food, medical assistance, temperature control, and contact with family members.
While the lawsuits that led to the Flores Agreement were brought forth on behalf of unaccompanied children, the agreement’s definition of minors as “any person under 18 in legal custody” has led many immigrants’ rights groups since to claim that it applies widely to families being held in detention because of the presence of minor children. However, the Bush administration maintained during the Hutto case that Flores did not apply to children crossing the border accompanied by their parents. The Obama administration claimed the same in this year’s suit.
Until the recent court order, no judge, law, or settlement agreement flatly rejected this claim. Further, while DHS had over the years seemed to implicitly agree that family units should not be detained by traditionally releasing them with a notice to appear in immigration court, those decisions were based on their own discretion and policy, which changed in response to last year’s surge. While the judge in the Hutto case agreed that the conditions at the facility likely violated the Flores standards for housing children, their detainment in the facility was not prohibited and encouraged the parties to reach a settlement. In the settlement, ICE agreed to improve the conditions at the facilities and to only place “those families that are in expedited removal proceedings” at the facility. However, the settlement applied only to the Hutto facility and acknowledged ICE’s ultimate discretion to determine if a family in non-expedited removal proceedings should be detained. Soon after the settlement, the new Obama administration decided to not use the facility as a family detention space at all.
Congressional appropriations language has also encouraged the release or use of alternatives to detention whenever possible, but has funded family detention facilities. For FY 2016, Congress approved $1.7 billion to maintain an average of 34,040 daily detention beds, including 2,760 family beds, per the president’s budget request.
Under pressure from advocates and some members of Congress, as well as in light of lawsuits over the current family detention practices and facilities, ICE this year announced several changes. In May, ICE enhanced oversight of family detention facilities and began an official review of family detention policies. Then on June 24, Sec. Johnson announced “substantial changes” to family detention policy. The changes include conducting “credible fear“ interviews within a “reasonable” timeframe. If credible fear of persecution upon return is found, the families will be released on bond. According to government statistics, 88% of detained families interviewed meet the credible fear requirement.
Last month, a California federal district judge issued a ruling that has been the most explicit rejection to date of the claim that the Flores Agreement does not apply to children with their parents. Dismissing the Obama Administration’s claim, Judge Dolly Gee ruled on a lawsuit filed earlier this year by the Center for Human Rights and Constitutional Law that the Flores agreement unambiguously applies to children accompanied by a parent, and that the children should be released with their parent without unnecessary delay unless they pose a significant public safety or flight risk. The judge also ruled that the Texas facilities do not meet the minimum standards set forth by the Flores agreement. After giving the administration time to respond to her intended order, last week the judge ultimately reaffirmed her ruling that DHS has to comply and gave them until October 23rd to change their detention practices.
Alternatives to Detention
In light of the ongoing controversy and discussion around the detention of families, some have called for an expanded use of the less restrictive alternatives to detention (ATD) options available to ICE. While there has been some controversy over the use of ATDs, both the government and advocacy community have generally viewed it as a more humane (and less expensive) alternative to detention.
ICE currently operates an Intensive Supervision Appearance Program that places low-risk immigrants under electronic monitoring or supervision to track their whereabouts and ensure appearances in immigration court. By the government’s own estimates and reporting, ATDs are significantly cheaper than detention and can also be effective in ensuring immigrants show up to their court hearings. The average daily cost per participant was estimated at $5.16 in the president’s FY 2016 budget request (compared to an average rate of $342.73 for family detention). After expanding its ATD program nationwide, DHS also conducted a study to measure the program’s effectiveness in reducing the number of immigrants not showing up to court. In 2012, only about 5 percent of participants (or 851 of 17,524) absconded, a decrease from 11 percent in 2010.
The president’s budget requested about $122 million for ATD capacity, which is $12 million above the FY 2015 enacted levels and would raise capacity to an estimated 53,000 individuals per day. However, in FY 2015, ATD average daily participation rate consisted of about 25,700, including 7,200 family units. The FY 2016 House Appropriations Committee Report highlighted that this participation rate was below the level funded under FY 2015 funds and therefore rejected its request to increase funding for expanded capacity.
Abby Kamp contributed to this post.