New Senate Bill Would Allow Indefinite Detention of Migrant Families

Advocates for asylum seekers are lining up against the latest effort to expand detention of migrant children, as congressional Republicans continue searching for a legislative “solution” to the intensified family separation crisis resulting from the Trump administration’s zero-tolerance immigration policies.

Sen. Ron Johnson, a Wisconsin Republican and chair of the Senate Committee on Homeland Security and Governmental Affairs, introduced a bill on Tuesday that would bolster border security and help the Trump administration to circumvent the 1997 settlement in the major case on immigrant detention known as Flores v. Reno, which has generally prevented the government from detaining children who arrived with their parents longer than 20 days.

The bill is known as the FAMILIES Act. It would embrace President Trump’s plan to expand jails for migrant families and allow the indefinite detention of children with their parents – all, supposedly, in the name of preventing the brutal family separations that shocked the nation and eventually sent the White House backpedaling.

“It’s frustrating to see Republicans in the Senate aiding and abetting the Trump administration’s cruel and inhumane policies that imprison innocent children, families fleeing violence, and kids coming to this country alone hoping for a better life,” said Sandra Cordero, director of the Families Belong Together Coalition Campaign, in a statement.

The Trump administration wants to automatically jail migrants arriving at the southern border rather than releasing them under supervision while they wait to see a judge, but immigration courts are backlogged. The Flores settlement prevents children from being detained for long periods of time, so, earlier this year, the Trump administration began separating children from their parents as part of its “zero-tolerance” policy. The administration has since halted family separations under public pressure.

In his opening statement before a committee hearing on family detention Tuesday, Johnson said it was a federal court’s “reinterpretation” of the Flores settlement during the Obama administration — rather than the Trump administration’s “zero-tolerance” policies — that had left federal law enforcement with only “bad” options on the southern border: jail children and their parents, or release children while jailing their parents.

Johnson’s bill would allow the administration to indefinitely hold families together in order to continue the zero-tolerance policy without the type of family separations that have captured the spotlight. In practice, the legislation is similar to family detention policies rolled out under the Obama administration that were eventually challenged in court under the Flores precedent.

An executive order from Trump in June that “addresses” family separation by opening the door for more detention center construction, as well as proposed regulatory changes that would undermine the Flores settlement, have paved the way for the administration to build migrant family jails.

Under President Obama, family detention centers run by private prison companies became a national scandal as immigrants and human rights groups complained about abuse, neglect and poor oversight. The National Immigrant Justice Center (NIJC) reports that the nation’s immigrant detention system remains “cruel and mismanaged” today, with at least 15 people dying in immigration jails since Trump took office, often after suffering medical neglect.

Johnson’s legislation would require that all asylum-seeking families be jailed in detention facilities upon arrival at the border, with no exceptions made for parents or children with disabilities or medical problems, according to analysis by the NIJC. This is particularly disturbing in light of Mariee Juarez, a toddler who recently died while in custody at a family detention center in Arizona. Her family alleges she died due to medical neglect.

“In fact, Johnson’s so-called FAMILIES Act actually seeks to imprison children and their families indefinitely in facilities with stomach-turning records of abuse,” Cordero said.

NIJC warns that Johnson’s bill would also spark a new round of family separations by requiring parents to be jailed in a separate facility for a variety of reasons, including minor crimes committed years ago. (As of this writing, Congress had yet to publish the text of the bill online, and Johnson’s office had not responded to a request for the bill from Truthout.)

“The United States already holds the shameful distinction of being ranked among the worst nations in treatment of migrant children, largely due to the Department of Homeland Security’s detention of children in immigration jails,” said NIJC Director of Policy Heidi Altman, in a statement. “Senator Johnson’s legislation would embrace rather than mitigate these systemic abuses.”

Last week, a coalition of medical and human rights organizations sent a letter to Johnson and other members of Congress asking them to oppose any legislation that would authorize indefinite family detention. The letter states that instead of incarcerating immigrants, the government should invest in supervision and case management for asylum seekers, which is much cheaper and avoids traumatizing children.

The groups, which included the American Pediatric Society and the American Psychological Association, pointed to a 2017 report by the American Academy of Pediatrics that found detaining children in federal immigration jails causes long-term trauma and psychological problems, even if the children are with their parents. The report recommends that children accompanied by their parents should never be detained, which can lead to post-traumatic stress disorder, suicidal ideation, behavioral problems and difficulty functioning in school.

More recently, a whistleblower letter to Congress from two physicians working with the Department of Homeland Security’s civil liberties office declared that detaining children with a parent “also poses high risk of harm to children and their families.” Investigations of family immigration jails “frequently” revealed compliance problems resulting in harm to children, the doctors wrote.

During Tuesday’s hearing, Sen. Maggie Hassan (D-New Hampshire) asked two top Trump administration customs and border protection officials, who were requesting that Congress lift the Flores restrictions, if they had reviewed the report from the American Academy of Pediatrics. Both admitted that they had not.