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On the History of Family Detention

by Peter Schey
August 17, 2020

This interview with Peter Schey, president of the Center of Human Rights and Constitutional Law, was conducted and condensed by franknews. 

The Center of Human Rights and Constitutional Law is a nonprofit, legal services group based in Los Angeles, California. We focus on immigrants' rights, international human rights, and prisoners' rights. These are large class action cases that may impact several thousands to hundreds of thousands of people. 

We focus on the rights of immigrants and refugees because we feel that those communities are among the most vulnerable and marginalized in the United States. Within that population, we tend to focus on immigrant children, both those who are accompanied and are unaccompanied with parents, who have been detained by the federal government.

I know the Flores Case is central to a lot of that work. Can you walk us through what the Flores case is and its importance? 

In 1986, we brought the Flores case, to the federal court in Los Angeles in response to a policy adopted by the Reagan administration that, in effect, detained immigrant children in facilities with no medical assessments, no medical treatment, no education, no visitation, and no case management. There was no effort to detain children in safe and sanitary conditions. Children were held as bait to apprehend their parents.

The Flores case was litigated over the next 10 years, and in early 1997, we arrived at a nationwide settlement in what is commonly called the Flores Settlement.

The terms of the settlement are quite detailed, but in summary, it requires that all detained minors be held in conditions that are safe and sanitary. It gives detained children a wide range of rights, including thr rights to case management, medical attention, and education.

Unless a minor is a flight risk or a danger, he or she has the right to be held in a non-secure, licensed facility. Children also have the right to bedding, blankets, to adequate temperature controls, drinkable water, edible food, et cetera.

A second part of the settlement is that it creates the right to release for detained children. 

What does release mean? Where are they released to? 

The settlement specifically provides a hierarchy of relatives that a child must be released to -- a child has a right to be released to any parent in the United States. If there's no parent, children have the right to be released to a grandparent, an uncle, an aunt, or a brother or sister. They also have a right to be released to a licensed group home licensed by a state for the care of dependent children.

There are only three reasons that a child may not be released. One, if the child is a significant flight risk. Two, if the child is determined to be a danger to herself or others. Or three, if the relatives to whom the child may be released, have been vetted and determined not able to provide a safe home for the child. For example, if they have an arrest warrant, or they have a serious criminal history. Other than those three circumstances, children have the right to be released to family members. 

Traditionally, have administrations complied with the terms of Flores Settlement? 

The Flores Settlement has remained in effect for the past 22 years and is the law of the land. It has the same force and effect as a law enacted by Congress. 

It covers all detained minors in the United States, whether accompanied or unaccompanied by parents. Various administrations complied with the settlement by promptly releasing any apprehended minor, generally within a day or two after processing their information. 

But, in 2014, President Obama adopted the DACA program, and a couple of things happened.

The program allowed hundreds of thousands of young undocumented immigrants who had been brought here as children to surrender to the federal immigration authorities and obtain temporary work permits. Several hundred thousand young immigrants came forward and applied for DACA benefits. Opponents of President Obama and anti-immigrant organizations and elected officials were strongly opposed to the DACA program. They believed that it was an amnesty for undocumented people. Then, in the spring of 2014, there was a surge of immigrants apprehended at the southern border, including accompanied and unaccompanied children. These surges are not that uncommon and seem to occur every two or three years, especially in the springtime. President Obama's opponents initiated a public campaign blaming President Obama's DACA program for the surge. They basically argued that the DACA program was serving as a magnet to induce or encourage unaccompanied minors to enter the United States and parents to bring their children to the United States in hopes of winning DACA status. There were hundreds of newspaper articles and right-wing op-ed pieces that blamed President Obama's DACA program for this spring 2014 surge. 

The two were, in fact, completely unrelated. None of these children that were coming in 2014 qualified for DACA. Immigrants are pretty well informed about these things back in their home country - they follow the news through immigrant networks, or their smugglers will provide information. Most immigrants who are planning on entering the United States understand the lay of the land and the policies before they make their entry. There really was no empirical connection between the DACA program and the surge.

But rather than riding out that publicity storm, the Obama administration responded by establishing mass family detention for the first time. 

Previous administrations had opted to release the families promptly after apprehension. The Obama administration decided to instead set up mass detention camps for accompanied children. They contracted private, for-profit corporations to operate large scale detention facilities in Texas. The cost was hundreds of millions of dollars, and those facilities could detain thousands of families.

How are they able to work within the parameters of the Flores Settlement at these detention centers? 

When the Obama administration in 2014 responded to the surge there wasn't much they could do with regards to unaccompanied children - their rights were set by The Flores Settlement as well as by 2008 TVPRA

We filed motions in the federal court that oversees compliance with The Flores Settlement in Los Angeles. We brought a motion to enforce the settlement, arguing that the lengthy detention of these accompanied children, with their parents, violated the release provisions of The Flores Agreement. The judge agreed with us and issued an order that required the government to come up with procedures to release accompanied children if a parent, designated a relative to whom they wished to have their child released. That is an important note - the Flores Settlement does not require the forced separation of children from their parents. It creates a right to be released that the parent is free to exercise or not exercise. Once we won that court order, the Obama administration figured out a way to come into compliance with the terms of the settlement. They had to figure out how to get kids released fairly promptly.

The way that they did that is through the asylum process. Almost all apprehended families are entitled to an interview that is called a credible fear interview - it's an interview to determine whether they appear to have a credible fear of returning to their home country because of persecution. It's a preliminary assessment of their right to receive asylum in the United States. The Obama administration accomplished these interviews fairly promptly. On average, within a week or two, if the parent has established a credible fear of persecution, the Obama administration would promptly release those parents and their children. 

The Obama administration had over a 90% credible fear approval decisions. Therefore over 90% of children were released with their parents within about 20 days. That is how the Obama administration achieved compliance with the right of children to be promptly released. That way, they did not have to set up procedures to identify family members living in the United States, and they do not have to set up procedures to vet those relatives to make sure they could provide a safe home for any child released to them. So they achieved compliance with the settlement through the back door. But the bottom line is the result was that the vast majority of children were released reasonably promptly.

What happened after Trump was elected. 

For the first year or two, there's really not much of a change. President Trump strongly opposes the settlement, and repeatedly publicly denounces the settlement. He says that he thinks children should not be released, that they should be detained, and that most of them should be deported. He urges Congress to enact legislation to override the settlement. He sought to terminate The Flores Settlement in federal court in 2018. And in 2019, his administration issued regulations in an effort to terminate the settlement. We blocked all of those efforts successfully. 

There's no question that the Trump administration is opposed to The Flores Settlement, but for the first year or two of his administration, he has been unsuccessful in getting the settlement terminated. 

But because of his restrictive asylum policies, the credible fear approval rate has now dropped from about 90% to about 10%. So the Obama approach of releasing the majority of children promptly no longer exists. 

Is there any difference in the actions of officials at the border due to his rhetoric? 

Border Patrol, ICE, and the Office of Refugee Resettlement, commonly called ORR, all take heed of what their boss thinks. So, they straddle the fence.

On the one hand, Trump wants these children to be detained indefinitely. On the other hand, the settlement requires the prompt release of children. The ORR ends up somewhere in the middle.

They are releasing unaccompanied children, but instead of doing it promptly within about twenty days, they're often detaining children for much longer. 

So when we see the videos of kids in cages, that is due to them dragging their feet? 

Yeah, absolutely. The fiasco on the border in 2019 actually was not the fault of the Border Patrol. It's complicated, but Border Patrol agents are supposed to turn over unaccompanied children to the ORR within 72 hours. They can only do that if the ORR has room. In 2019, when there were hundreds of children detained for weeks by the Border Patrol, which has no capacity to detain adults or children for more than a few days, ORR was simply not picking up children.

Why was the ORR not available to take the children?

ORR was not available to take custody of these children because they were at about 97% capacity. The reason they were at capacity was not because of surges, but, again, because they were straddling the fence due to the pressure they felt from the White House to not to release children at all. They couldn't do that because they would be in contempt of court, they'd be in clear violation of the settlement. So instead, they straddled the fence by creating vetting procedures for the relatives that were extremely challenging and took a long time. This way, they remained somewhat in compliance, while trying to appease the wishes of their boss, the president of the United States.

Because of those delays in releasing children, ORR reached 97% capacity in their facilities. If they had just released children in a couple of weeks, they would have been at 50% capacity. But because of the difficult process that they created, they were not moving children out of their custody quickly. 

So when a surge of unaccompanied minors being apprehended at the border developed in April and May of 2019, Border Patrol would say to ORR, we have a hundred kids, come pick them up in 72 hours. ORR would just say, we're not going to pick them up because we were at capacity, sorry. That's what created that crisis.

That is what resulted in children being detained in chain-linked fence enclosures. It was really not the Border Patrol's fault, in my opinion. It was the Trump administration's fault. It was the political appointees running the US Department of Health and Human Services. It was the political appointees running the Office of Refugee Resettlement. That's what caused that crisis.

More recently, the detention of accompanied children has increased substantially because the Trump administration has adopted far more restricted policies on who does and who does not qualify for political asylum. They've adopted a policy that states immigrants who are fleeing gang violence are not eligible for asylum. They have also issued a policy that domestic violence does not count as “credible fear.”  

The government has also started to assign Border Patrol agents to conduct these interviews, as opposed to professional well-trained asylum officers. As a result, the approval rating for asylum went from over 90% down to about 10%. The mechanism that the Obama administration had used to comply with the settlement and to relatively promptly release accompanied children with their parents, that went out the window. Because now, instead of 90% of kids being relatively promptly released, now you only have 10% of children being promptly released. That creates a huge issue. 

What is the legal justification for those changes?

They just made a policy decision. They just instructed their immigration judges and their asylum offices. Attorney General Jeff Sessions just issued opinions and DHS just issued opinions. 

In March of this year, we brought an emergency motion to deal with the ongoing detention of accompanied and unaccompanied minors in light of COVID-19, and we won court orders in March, April, May, June, July, every month. We won court orders that basically now require that the government make additional efforts in terms of safe and sanitary conditions and that they reduce and eliminate some of the obstacles in the release of children.

How else has COVID changed things?

Well for one, the borders are closed. People who show up at the border don't even have the right to claim asylum.

They can still apply for protection under the Torture Convention - which the United States is a party to. They do have to question people about whether they face torture, which is a quick interview conducted by Border Patrol. Very few immigrants are found to possess a credible fear that they are being tortured in their country. That has reduced the number of apprehended children because they are deported shortly after they reach the border.

Are there systematic changes that you want to see take place?

We don't think families should be detained at all. 

We will be urging both the Trump administration and the Biden camp to abolish family camps. We want to go back to what administrations did before the Obama administration- which was to release parents and children as promptly as possible. These people are not flight risks, and they are not a danger to national security. 

If they were released with proper instructions as to the consequences of not showing up at their hearings, if they were treated fairly, they will appear for their hearings - their asylum hearings and their deportation hearings. That is a big change we would like to see. It is never going to happen under a Trump administration, maybe under a Biden administration. He was in the administration that began mass family detention in the first place, but hopefully, he has changed his thinking on that.