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 1996 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.
CORRECTION: This article originally contained a reference to the "2015 agreement." The agreement in question, as stated in the previous sentence, was the Flores settlement, which was from 1996.