Detention Watch Network (DWN) opposes family detention. The detention of families is inhumane. The United States has failed to maintain detention facilities that comport with basic due process and human rights standards. Moreover, the use of family detention runs contrary to Congressional intent.
What is family detention?
Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS), operates a sprawling system of over 250 immigration detention facilities, costing taxpayers over $2 billion annually. ICE detains mothers and children apprehended along the U.S. border and within the interior of the country in family detention centers. ICE has family detention standards. However, ICE’s detention standards are not codified, meaning they do not have the force of law and do not confer a cause of action in court. Moreover, family detention facilities – like all ICE detention centers – are subject to minimal independent oversight and accountability to ensure compliance with standards.
Family detention is operated by ICE, not HHS or CBP.
Generally, when Customs and Border Protection (CBP) apprehends families and/or children at the border, [CBP places] these migrants [in] CBP holding cells. Children arriving at the border alone (other than children from Mexico) must be transferred into the care of the Office of Refugee Resettlement (ORR), a division of the Dept. of Health and Human Services (HHS).
However, not all children arriving at the border are unaccompanied. Children apprehended at the border with a parent are arbitrarily transferred to ICE custody in family detention facilities. Infants and mothers with legitimate asylum claims are detained. Families arriving at the border are seeking safety or protection from violence and consist of women with young children, including infants and toddlers. However, family detention may not be limited to families apprehended at the U.S.-Mexico border; it includes families apprehended in the U.S. and can include mentally ill individuals and pregnant women.
Detention is psychologically damaging and completely inappropriate for children. Studies conducted by the bipartisan U.S. Commission on International Religious Freedom, New York University’s Bellevue Program for Survivors of Torture, and Physicians for Human Rights demonstrate that detention poses a serious threat to the psychological health of detained immigrants and further aggravates isolation, depression, and mental health problems associated with past trauma.
During the summer of 2014, ICE implemented a “no bond” policy, circumventing the rights to liberty and due process, impeding access to attorneys, and making it easier to rapidly deport detained families with legitimate asylum claims.
Has the United States always detained families?
No. In 2001, the then-Immigration and Naturalization Service (INS) began detaining families at Berks (96 beds) in Leesport, Pennsylvania. From 2006 to 2009, ICE also operated the 512-bed T. Don Hutto Correction Center (Hutto) in Taylor, Texas as a family detention center.
Prior to the opening of Hutto, ICE was placing children in ORR shelters and separating them from their parents, who were sent to immigration detention centers.(1) This resulted in the forced separation of parents from their children, which unlawfully rendered the children unaccompanied. After learning about this practice, Congress directed DHS to stop separating migrant families.(2) In response, DHS expanded family detention and opened Hutto in 2006.
However, the practice of detaining families in jail-like settings is contrary to Congressional intent, which indicates a desire to end, not expand, family detention. Congress reaffirmed its intent in 2007, expressing its alarm over the use of family detention.(3) In 2009, ICE closed Hutto (more below).
The expansion of family detention is also inconsistent with our international obligations to protect the rights of vulnerable migrants and to avoid detention as deterrence for migration.
ICE’s failed attempts to detain families on a mass scale make it clear that family detention is inhumane.
In 2006, ICE opened Hutto, a former medium-security prison built by the Corrections Corporation of America, a private prison corporation that is one of the major companies operating nearly 60% of immigration detention beds today. ICE insisted that Hutto was specially equipped to meet the needs of families. However, reports emerged that children as young as eight months wore prison uniforms and jumpsuits, lived and slept in locked prison cells with open-air toilets, families were subject to highly restricted movement and threatened with family separation if children cried or played too loudly. Medical treatment was wholly inadequate, infants lost weight due to poor nutrition, and children received only one hour of education a day.
In 2009, ICE stopped using Hutto to detain families after public opposition and a lawsuit highlighting that conditions were entirely inappropriate for children and families. The administration also withdrew plans for three new detention facilities. Contrary to concerns at the time – which echo concerns from Congress and the administration today – family arrivals did not increase directly following the end of family detention at Hutto.
DHS is legally mandated to place families with children in the least restrictive setting possible. In 1996, a settlement in Flores v. Reno, No. CV 85-4544-RJK (Px) (C.D. Cal. 1988) (Flores settlement), set forth a policy for all children under the age of 18 in government custody. The Flores settlement mandates that the government “release a minor from its custody without unnecessary delay” as long as detention is not required to ensure a child’s appearance in immigration court or for safety reasons. This settlement and other legal precedents demand that the government actively and continuously seek the release of each child in custody. Since the government has often failed to comply with these requirements, Congress has passed legislation multiple times to reform the immigration system as it applies to children. The government’s failed record in complying with legal obligations makes clear that family detention is not a viable option.
What should the U.S. government do?
1 For more details and the history of family detention, please see Locking Up Family Values: The Detention of Immigrant Families, an extensive 2007 report by the Women’s Refugee Commission and Lutheran Immigration and Refugee Service.
2 House Committee on Appropriations, Department of Homeland Security appropriations bill, 2006: report together with additional views (to
accompany H.R. 2360), 109th Cong., 1st Session, 2005, H. Rep. 109-79.
3 House Committee on Appropriations, Department of Homeland Security appropriations bill, 2007: report together
Family Detention Facilities at a Glance
Artesia (New Mexico)
For more information, please contact: Silky Shah, [email protected]