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If Conditions for Detained Migrant Children Got Worse, How Would We Know?

Detention centers on the border are notorious for being "black boxes," and outside monitoring is rare.
A bus transporting immigrants leaves a temporary facility at a U.S. Border Patrol Station in Clint, Texas, on June 21st, 2019. Lawyers who toured the facility said they witnessed inhumane conditions.

A bus transporting immigrants leaves a temporary facility at a U.S. Border Patrol Station in Clint, Texas, on June 21st, 2019. Lawyers who toured the facility said they witnessed inhumane conditions.

Last week, a team of attorneys witnessed detained migrant children living in filthy, crowded conditions at a Border Patrol station in Clint, Texas. What they saw shocked them.

But what was just as extraordinary as those conditions was the fact that the public heard about them: Advocates and journalists say that the detention facilities run by Customs and Border Protection are like "black boxes," and that little information gets out.

"CBP hieleras are notoriously difficult to get inside for advocates," says Aaron Reichlin-Melnick, a policy analyst for the American Immigration Council. (Hieleras—"iceboxes" in Spanish—is a word migrants often use to describe CBP's cold, concrete detention cells.)  "They do not permit people to enter as a general matter."

Though migrants have long spoken out about abysmal conditions in CBP detention facilities, the public has rarely seen pictures from the inside, and journalists are infrequently allowed tours. Since December, when two children died in CBP custody, journalists have been essentially barred entry to CBP detention centers, and advocates have had an even harder time gaining access.

When Border Patrol apprehends border crossers, or when asylum seekers present themselves at ports of entry, those people are first taken to CBP short-term holding cells to be processed. From that point, migrants can either be released or put into Immigration and Customs Enforcement custody. For children who are traveling unaccompanied, CBP will transfer them into the custody of the Office of Refugee Resettlement (a division within the Department of Health and Human Services). But because of an influx in arrivals and new federal policies (the Trump administration's prioritization of detention has created a huge backlog in the immigration system), many people are now waiting for weeks at a time in CBP cells.

Because CBP facilities were only intended for short-term administrative holding, they're more restrictive and closed to outsiders than almost any other detention facility in the U.S. (including jails and prisons). Attorneys are allowed to visit their clients in ORR child holding facilities and ICE detention centers. But detainees in CBP holding have no access to legal counsel—detainees can't make phone calls, and attorneys are not permitted to visit clients within CBP facilities.

According to advocates, this isolation and lack of oversight can be a recipe for abuse, especially in the case of children. Jennifer Podkul, the senior director of policy and advocacy for Kids in Need of Defense (a non-profit that seeks to protect unaccompanied children in the U.S. immigration system), says children have few options to ask for help if they're abused by CBP staff.

"You have kids who are being held, and they're not able to make a phone call to an attorney, they're not getting any sort of information about their rights. And the only way they can make a complaint is if they flag down an agent—and then tell one agent that one of their co-workers abused them," Podkul says.

Because attorneys cannot get into CBP facilities, Podkul says there's "very few points of oversight." And even when there is oversight, there's often no enforcement. For instance, a recent report from the Office of the Inspector General of the Department of Homeland Security—the official watchdog organization for CBP and other agencies within the DHS—found "dangerous" overcrowding in CBP facilities. One cell, with a maximum capacity of 35, held 155 detainees; with "standing room only," detainees were forced to wait on their feet for days at a time. Though the report declared that "DHS needs to address dangerous overcrowding," it's unclear which government body would enforce such a directive.

While OIG investigators have been able to tour CBP facilities to make their reports, CBP has no obligation to let third-party, non-government investigators enter, and no laws exist that give journalists access to CBP facilities.

The only real exception is when there's an active court case that deals with the conditions in CBP detention. That's why lawyers could visit Clint last week: They're all part of the counsel team for Flores v. Reno, an ongoing, decades-old court case that sets standards for child detention. Through a court settlement reached between the government and the Flores lawyers in 1997, attorneys are periodically able to review child detention conditions to ensure the government is living up to the promises it made in the settlement.

Flores means that outside parties have some oversight when it comes to the government's detention of children. But it's far from a panacea. The Flores lawyers have to negotiate access each time they want to visit a facility, and the staff at those centers—like the agents working at Clint—normally know weeks in advance that the lawyers are on their way.

Podkul says there's another worry: The Trump administration is currently working on creating new regulations that would supersede the Flores decision. Though controversial, and likely to draw legal challenges, if Trump's new policies create a loophole in Flores, attorneys will no longer be able to negotiate access to CBP detention facilities.

"The only reason we know about what happened in Clint is because [Flores counsel] could go in and monitor. If the new regulations are finalized, and the court allows them to go forward, then the Flores settlement dissolves," Podkul says. "The fact that there would be no third-party oversight or accountability is just beyond troubling."

Podkul says there's been some talk that child abuse in CBP facilities could be investigated and prosecuted by the Federal Bureau of Investigation, because CBP detention centers are federal facilities. But, she says, the FBI has never exercised that oversight capacity before.