Last week, a federal judge ruled that the Obama administration's family detention centers were in violation of a 1997 court settlement outlining facility requirements for migrant children. The decision may lead to the release of hundreds of immigrant women and children, currently residing in the facilities after being caught by Border Patrol.
The ruling could force the Obama administration to re-think its recent strategy for immigrant families apprehended trying to cross into the United States. In the summer of 2014, the country was facing what President Barack Obama called an "urgent humanitarian crisis" at the Texas border: violence in Central American countries was driving a record number of both female-headed families and unaccompanied children to try to enter the U.S. illegally. Consequently, the number of people held in family unit detention centers jumped from almost 15,000 in 2013 to more than 68,000 in 2014, according to U.S. Border Patrol. In response, U.S. Immigration and Customs Enforcement implemented a new policy to detain all female-headed families crossing the border in secure facilities while authorities determined whether or not their asylum claims were legitimate.
In February, lawyers with the Center for Human Rights and Constitutional Law in Los Angeles sued the Department of Homeland Security (along with its component departments: ICE and U.S. Customs and Border Protection), on the grounds that the new policy and the detention centers violated an agreement that has guided the treatment and housing of unaccompanied minors apprehended at the border for nearly two decades.
"I think the Obama administration is seeing that the tide is really turning against them when it comes to family immigration detention."
"It's a huge blow to the Obama administration’s family immigration detention practice," says Cesar García Hernández, a visiting professor at the University of Denver's Sturm School of Law. "One that was not particularly surprising to individuals who are aware of the 1997 agreement, and the limitations on detaining children in particular, that the [Immigration and Naturalization Service] agreed to way back when," García Hernández adds, "but none the less, one that will pose a significant obstacle to the Obama administration's recent revival of the practice of detaining children and mothers."
The 1997 settlement—also known as the Flores agreement—decrees that children apprehended at the border be released from custody "without unnecessary delay," and children who can't be released to family members or guardians should be housed in non-secure facilities (think community centers, rather than prisons) that are licensed to care for children. The Department of Homeland Security argued that the Flores agreement didn't apply to children apprehended with family members, and that the family detainment centers provide meals, health care, recreational activities, and educational opportunities to detainees and thus are in accordance with housing standards laid out by ICE.
U.S. District Judge Dolly Gee disagreed—citing declarations from detainees that contradicted Department of Homeland Security's "rosy account of the conditions in the centers." Many detainees complained that the facilities were overcrowded and as cold as "hieleras," or iceboxes.
In the May/June issue of Pacific Standard, Lauren Markham wrote about recent immigrant Clara Orozco (a pseudonym), who was detained in one of the detention centers with her daughter last summer. The politically active Orozco had to flee death threats in her native Honduras, making her way through Guatemala and Mexico with her 13-year-old daughter, before being apprehended by Border Patrol in Texas. "The two were locked up for seven days," Markham wrote. "At times Clara felt she might not survive; more than 30 mothers and children shared a cell so small that the adults slept sitting up."
Judge Gee found that these conditions like those Clara and her daughter endured violated the 1997 agreement's requirement that children be housed in "safe and sanitary" facilities. As such, Gee ruled that, unless they are a flight risk, it is illegal to hold mothers and children in these family detention centers. She gave the Department of Homeland Security 90 days to bring the family detention facilities into compliance—or release the detainees.
"The vast majority of these people are fleeing for security reasons, and being put in jail is not going to deter you if you think you're going to die."
The Department of Homeland Security has until August 3rd to reply to Judge Gee’s ruling. The department is expected to re-iterate its argument that the facilities aren't prison-like, and that the 1997 agreement may not be relevant to detained mothers—claims which are still unlikely to sway the court, García Hernández says. ICE could eventually appeal the decision and take the case to a higher court, but for now, immigration advocates are rejoicing in a rare win.
"We may actually start seeing some releases in the coming weeks and months, partly because of the legal decision, but also because I think the [Obama] administration is seeing that the tide is really turning against them when it comes to family immigration detention," García Hernández says. "Advocates have been waging a multi-pronged attack against the practice of detaining mothers and kids in these facilities, and they're having success."
Yet some worry that, by encouraging migrants to enter the U.S. illegally without the fear of detainment, the ruling may do more harm than good. "The number of kids that are going to be enticed from this ruling to come from Central America and risk their lives and subject themselves to injury or rape to cross Mexico is going to rise," Ira Mehlman, a spokesman for the Federation for American Immigration Reform, told the Los Angeles Times. But that stance implies that immigrating to the U.S. is a leisurely stroll rather than a dangerous trek that often spans multiple countries, and that the possibility of detainment in these family facilities was enough to deter migrants leaving behind violent homelands. "The vast majority of these people are fleeing for security reasons, and being put in jail is not going to deter you if you think you're going to die," Markham tells me from El Salvador.
Record numbers of migrants are still making their way to the U.S. from all over Central America: As of June 2015, the number of family-unit apprehensions along the border was nearly 25,000—roughly half the number of family apprehensions that had occurred by June 2014, but still much higher than pre-2014 levels. But now many are intercepted in Mexico, according to Markham. "They're not being deterred from coming," she says, "they're just not making it."
Since We Last Spoke examines the latest policy and research updates to past Pacific Standard news coverage.