clock menu more-arrow no yes mobile

Filed under:

Hundreds of immigrant families have been locked up for months. Now they have a chance of release.

(Office of Rep. Zoe Lofgren)

On June 3, Lilian Oliva Bardales — a 19-year-old Honduran woman with a 4-year-old son — locked herself in the bathroom of the Karnes immigration detention center in Texas (where she and her son had been held since October) and tried to slit her wrist using a broken ID bracelet. She'd fled Honduras and an abusive ex-partner for the United States and the hope of asylum, but after several months in detention with hundreds of other families from Central America, she lost hope.

"I didn't feel alive in that place," she told a reporter in Honduras, where she was deported after her suicide attempt.

The suicide attempt was just another reminder of what a disaster the detention of hundreds of immigrant families from Central America has been. Since the government started detaining families last summer, reports have surfaced that children are being malnourished, facilities are overcrowded, and immigrants with serious medical conditions aren't receiving proper care. The pressure has been building for the government to stop keeping families in detention for months on end.

Department of Homeland Security Secretary Jeh Johnson announced on Wednesday that the US was taking steps to end — or at least restrict — the long-term detention of immigrant families. Instead of families being kept in detention through the entire process of determining whether they're eligible for asylum, they'll be released on bond if they pass the first stage of the asylum process — which 88 percent of detained families, according to official statistics, are clearing.

The change in policy implies something very uncomfortable for the government: that they were wrong all along about why Central American families were coming and what they would do in the US.

Since the migrant crisis last summer, the federal government has treated these families as a border security problem, rather than as asylum seekers. But it's clear that detaining 4-year-olds for months on end is more of a PR liability for the government than an asset to border security — especially because we're not seeing a repeat of last summer's migrant crisis. Now the government has been forced to acknowledge that many of the families coming to the US are going through the proper legal process to stay.

A "shitshow" from the very beginning

Just like many people are kept in jail while fighting their cases in criminal court, the US government keeps many immigrants in detention after they're apprehended at the border or within the US, while processing their deportation cases. Those cases can take a while to process, especially when an immigrant is asking for asylum. Just like criminal cases, immigrants in deportation cases can be released on bail — but the government has to trust that they'll show up for their court dates instead of simply escaping into the US.

Last summer, tens of thousands of children and families arrived in the US from Central America, overwhelming the government's resources. Many of them were fleeing violence in Central America and wished to get asylum in the US. But the government was worried that if it just released families into the US after giving them court dates, they'd never show up to court. Meanwhile, they wanted to show that they were trying to fight the "border crisis." So part of the US's response was to put many families in temporary detention facilities, and build permanent ones to hold future immigrants.

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 extremely hard for lawyers to put together the information that would prove families qualified for asylum. And 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. Now there are about 2,600 families — many of whom have been there for months — in three detention centers.

Life in detention: malnourished children and rushed court hearings

There are strict rules in place (determined by a federal court in the 1990s) about how the government treats immigrant children. Those make it impossible to detain families in standard immigration detention. Past attempts to open large detention centers that are just for immigrant families have failed because it was just too hard to adhere to those standards. And from the beginning of family detention last year, there's been evidence that the government wasn't succeeding this time around, either.

Meanwhile, life in detention was clearly taking a toll on families — especially on children. The New York Times Magazine reported in February:

The detainees reported sleeping eight to a room, in violation of the Flores settlement [the government's standards for immigrant children], 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."

The border crisis has faded — but this isn't the reason

The government maintains that conditions in family detention are getting a lot better — but no one's disputing that families would be even better off if they got released. What the government has said, though, is that it has to detain hundreds of immigrant families as a matter of border security.

crowd dilley

(Office of Rep. Zoe Lofgren)

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. And the correlation is there: There are way fewer people coming to the US's southern border from Central America this summer than there were last summer.

But correlation doesn't imply causation. The biggest reason for the drop in entrances to the US appears to be that Mexico is being extremely aggressive in rounding up and deporting Central Americans before they get to the Rio Grande. That doesn't indicate that people are being deterred from leaving their home countries by the prospect of getting detained in America.

Besides, 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.

The government is quietly admitting that many families are trying to do things "the right way"

A separate lawsuit against the government says it's violating its standards for detaining children. That suit has forced the government to negotiate with advocacy groups, which it's been doing for a few months (last week, the government got an extension to finish negotiations by July 3).

The government has shifted to arguing that if these families aren't detained, they'll abscond into the United States rather than showing up for their asylum hearings. This is the same logic that the government has used from the beginning: that these families are trying to sneak into the US illegally, and therefore need to be kept under lock and key.

sad immigrant child detention

But advocates and lawyers argue that they're legitimately seeking asylum. And that means it shouldn't be necessary to detain them. Someone who has a chance at asylum will want to show up to court — especially when being monitored some other way, like by an ankle bracelet.

Meanwhile, it's a lot harder for an immigrant to put together an asylum case while locked up. Without a lawyer, it's been nearly impossible for a detained family to win an asylum case — as of February, 98.5 percent of women with children who passed the first stage of the asylum process, but didn't have a lawyer to help them through, ended up losing their cases and getting deported. And even with a lawyer, cases in detention don't fare as well as cases outside of detention.

With the new policy, the government is finally admitting that once an immigrant mother passes the first test for asylum, she and her family should be trusted to follow through. DHS still talks about last summer's crisis as a wave of "illegal migration," but it's quietly acknowledging that many of the people who have come are seeking legal status through legal means.

But families will still have to start the asylum process in detention, and test their way out. That's worrisome to advocates — they feel families are still being put at a disadvantage by having to start their case in detention, where they might not have access to the legal help or the records they need. This is where the government's promise to put families through the first stage of the asylum process quickly could end up making things worse for some families in detention. If a family is shuttled through quickly, but fails to make their case, they won't be held in detention — they'll simply be deported.