The False Choice Between Jailing Children and Separating Families

The Trump administration is giving Congress an ultimatum: overturn legal limits on the confinement of children and expand family detention, or the Department of Homeland Security (DHS) will continue to separate families who illegally cross the border.

The administration is asking Congress to roll back protections for migrant children in immigration laws to allow DHS officials to more easily jail and deport them. The changes would also make it more difficult for children to pursue asylum.

Moreover, White House officials are blaming Democrats for an increase in migrants at the border, saying their refusal to spend more on border security has given immigrants fleeing Central America incentives to enter the U.S. without permission. “The current immigration and border crisis … are the exclusive product of loopholes in federal immigration law that Democrats refuse to close,” Stephen Miller, the president’s top adviser on immigration policy, told reporters last month.

This isn’t the first time the White House has tried to reverse protections in order to lock up more families. Facing a much more drastic surge of unaccompanied children and families in 2014, the Obama administration proposed some of the same changes, relying heavily on jailing families over releasing them with a court date.

But the administration was forced to scale the practice back, releasing thousands of families after a federal court ruled in 2015 that jailing children (even with parents) for longer than 20 days violated the 1997 Flores agreement, a court settlement resulting from a previous legal challenge to government’s practice of detaining children.

Now, the Trump administration is pressuring Democrats to overturn the Flores agreement so the White House can again ramp up family detention. Without family jails, the Trump administration contends that its hands are tied, and must separate families so that the adults can be jailed and prosecuted under the Justice Department’s new “zero tolerance” policy.

Not only is there no statute mandating that the government criminally charge families who cross the border without permission, there have long been alternatives to both separating families and placing them together in immigrant family jails.

Trump Officials Shutter Alternative Program

The Trump administration is well aware of this fact: It terminated the least-restrictive alternative to detention available to asylum-seeking families crossing the border without permission a year ago last June.

“As everyone understands, you don’t hurt children in order to influence policy choices of their parents.”

The government-contracted Family Case Management Program served 630 families in April 2017 before it was shut down last summer, according to The Associated Press. The program operated in Chicago, Miami, New York, Los Angeles and the Baltimore/Washington, D.C., area after it was introduced in January 2016. While some of the program’s participants were referred to the program post-release, some were sent directly to caseworkers from the border, skipping detention entirely.

Social workers from organizations partnered with the program helped families find lawyers and navigate the complex immigration system, obtain housing and health care, and enroll kids in school.

More importantly, advocates say, it kept families together and out of custody, providing traumatized asylum-seekers with the resources they need to pursue and win their cases, while maintaining children’s normal social development and a natural family experience.

The Trump administration directed Immigration and Customs Enforcement (ICE) to end the program after outlining its other priorities last year in the fiscal 2018 budget: a $1.6 billion increase to expand the detention and deportation apparatus, including cutting the ribbon on a new 1,000-bed immigration detention jail in Houston.

The administration instead opted to put women previously eligible for the program into the intrusive, surveillance-oriented “intensive supervision” program that straps more than 80,000 “low-risk” immigrants with electronic ankle monitors.

Social workers and refugee advocates who worked with the terminated program or have operated similar case management services say providing families with counseling and social services outside of a detention setting is not only the most humane option, it is the most sensible option: It’s cheaper, more legally effective and doesn’t further strain an already-overburdened system.

The Most Humane, Least-Restrictive Alternative

The horrors of the Trump administration’s zero tolerance policy resulting in the separation of families are stacking up as the policy continues.

U.S. Customs and Border Protection officials recently confirmed that a Honduran man strangled himself in his holding cell last month after he learned he would be separated from his family.

Over the weekend, asylum-seeking mothers who have been transferred a federal immigrant jail in SeaTac, just south of Seattle-Tacoma International Airport, told a group of lawmakers who visited the jail Saturday that they could hear their children screaming for them in another room.

Washington State lawmakers’ testimony comes after Oregon Sen. Jeff Merkley’s attempted visit to a converted Walmart in Brownsville, Texas, that is now serving as a temporary facility holding separated children in custody of the Office of Refugee Resettlement. He told reporters this month that he witnessed children being held in “dog-kennel-style cages” at a separate facility in McAllen, Texas.

The image of that facility was “seared in my mind,” Senator Merkley said during a press call. “This just goes beyond anything I could imagine. It’s morally bankrupt. It’s wrong on every level. As everyone understands, you don’t hurt children in order to influence policy choices of their parents.”

Moreover, ICE officials are running out of space to jail immigrants apprehended under the new zero tolerance policy, and are now temporarily moving 1,600 detainees into federal prisons. Border agents likewise told NBC News they are similarly running out of space to shelter separated children at the U.S. border. As of last week, nearly 300 of the 550 children in custody at border stations had been held longer than the legal limit for immigrants in the government’s temporary facilities.

Like separation, detention offers a similar set of traumas for children, even when they do remain with their parents. As Truthout has previously reported, women and children must endure the migratory traumas of crossing through Mexico to the U.S., where threats from gangs and traffickers often rival the violence of the Central American Northern Triangle. After surviving the journey, separation and/or detention acts as a final traumatic blow. Both can have long-lasting impacts affecting the psychological and neurological development of children, according to child psychologists and pediatricians.

Community management provides a measure of accountability while keeping families together and out of custody.

The Most Sensible Alternative

The Trump administration’s 2019 fiscal year budget requests $184.4 million for ICE’s Alternatives to Detention Program, with nearly all of that money going to its Intensive Supervision Appearance Program, involving weekly office check-ins, unannounced home visits and ankle monitors. The request is an increase from last year’s budget, which requested $57 million for intensive supervision.

The canceled Family Case Management Program cost the government $36 a day per family while it operated, compared to $319 per-person for a family detention bed as of last year.

“The general population perceives ankle monitors to be related to criminal matters. It affects both the child and the mother.”

Katharina Obser, senior policy adviser for migrant rights and justice at the Women’s Refugee Commission, notes that it’s also more affordable when compared to the expenses of separating families. After factoring in the costs of space in a U.S. Marshals Services facility or an immigrant detention bed combined with the costs of space in an Refugee Resettlement facility for separated children, it’s still hundreds of dollars cheaper.

Still, the Trump administration argued intensive supervision was the cheapest option, costing $5-$7 per adult last year, when it terminated the Family Case Management Program (while keeping expensive family jails operating within their legal limits).

But Miriam Camero, a case manager in Houston with the Refugee and Immigrant Center for Education and Legal Services (RAICES), who works with families recently released from a family jail in Karnes City, Texas, says the drawbacks of ankle monitors outweigh the cost benefits.

“I can attest to the fact of how life is just so difficult for clients because that’s their current tracking method if they can’t afford bond,” Camero says. “The general population perceives ankle monitors to be related to criminal matters. It affects both the child and the mother. The child gets teased at school. Sometimes the school does keep on asking the mother for her criminal background when she clearly doesn’t have any.”

Camero learned early on that a crucial component of her job would not only be coordinating legal and social services but breaking down the social stigmas that come with ankle monitors, which the vast majority of her clients wear. During Hurricane Harvey, many of her clients were unable to charge their waterproof monitors and had to deal with the devices’ incessant beeping as floodwaters filled their houses, she said.

RAICES formerly operated its own program providing social services to families after their release, including a post-release hotline for participants. While that program ended after a staffing shortage, Camero’s work in Houston continues the organization’s efforts.

For refugee advocates, community management of asylum-seekers offers an alternative not only to detention and separation but also to more damaging alternatives like intensive supervision.

Additionally, they say, separating families adds to an already-whopping backlog of more than 685,000 cases that are jamming up immigration courts and leading to mass trials of immigrants. Border agents render children “unaccompanied” when they are separated, severing legal cases that would otherwise be processed together. Not only that, but the influx of children rendered unaccompanied by the state has also strained the resources of agencies tasked with their care.

“The absurdity of the separations … is also a matter of resources. [The Office of Refugee Resettlement] is traditionally an under-resourced agency for all the responsibilities they have to care for these kids, so the numbers of kids who are going into their care who otherwise wouldn’t need to be in their care is really incredible,” said Jennifer Podkul, director of policy for Kids in Need of Defense, an organization which works to provide legal representation and due process for unaccompanied minors in the immigration system.

“The absurdity of the separations is also a matter of resources.”

Lastly, case management has proven incredibly effective in terms of realizing compliance with immigration laws. Camero says, for instance, that none of her clients has ever missed a court appearance. They do sometimes run late to ICE check-ins, but that’s why one of the services she provides is transportation.

“A lot of these people just want their day in court, and to be able to explain why they can’t come back [to their home countries]. If they get that opportunity, a lot of them are willing to take whatever order the judge provides for them,” said Manoj Govindaiah, who directs family detention services at RAICES.

Since Camero’s case management program started only two years ago, she doesn’t yet know how successful her clients will be in terms of winning asylum, as most of their cases are still winding their way through the courts.

Similarly, Truthout was unable to ascertain the percentage of how many participants were successful in winning asylum in the now-shuttered Family Case Management Program. “I think, had [the program] continued to be operational to the present day, I believe we’d continue to have the same compelling data [on compliance], but we’d also just have much more data of what happens to families who are enrolled in this program,” Obser said.

Still, according to a letter issued by Ann M. Schlarb, president of the GEO Group division that landed the ICE contract to operate the Family Case Management Program, 99 percent of participants “successfully attended their court appearances and ICE check-ins,” including at least a dozen families who were ultimately deported. Schlarb didn’t respond to Truthout’s request for comment regarding the program and its operations.

The fact that her Boca Raton, Florida-based private prison corporation operated the now-terminated program, however, was its one drawback, according to refugee advocates.

“A lot of these people just want their day in court.”

“At the end of the day, GEO is a for-profit corporation concerned about the bottom line, and … a company that doesn’t necessarily look out for the people that it’s charged with being custodian of,” said Govindaiah. “So, it seemed like an odd choice [for the ICE contract], especially when there are so many organizations … that do a lot of work with refugee and asylum-seeking populations, and would have seemed the more natural fit for this type of work.”

Expanding Community Management

Religious-affiliated organizations like the U.S. Conference of Catholic Bishops, Catholic Charities USA and the Lutheran Immigration and Refugee Service have long provided caseworkers to asylum-seeking families entering the United States.

As Truthout reported during the massive influx of unaccompanied children in 2014 for instance, Catholic Charities of Dallas worked to provide legal support for children placed in temporary shelters in the city at the time, sending caseworkers to three such facilities to provide legal orientations and assessments for them, and determine if they could be reunited with family members in the U.S.

Even the for-profit GEO Group understood the practical experience that organizations like these have when it comes to case work: They partnered with Bethany Christian Services to serve families in the Baltimore/Washington D.C., area, for example.

In Camero’s mind, expanding community management programs and the number of caseworkers for families “is completely doable” — especially amid the outcry against family separation.

Following a massive day of action on June 1 against family separations, communities throughout the U.S. are again gearing up to join rallies and vigils in even greater numbers across 45 cities June 14.

For Camero and Govindaiah, the public backlash against current crisis of separations at the border provides an opening to push for expanding these organizations’ capacity to do case work for families who would hopefully skip detention entirely.

“There’s no reason to have [immigrant jails or separations] when we have organizations that can still be able to do something like [case management], and it allows for organizations to expand and be able to do this,” Camero said.

“This administration makes it sound like it has no option but to separate families, and that’s so incredibly disingenuous.”

They worry, however, that as legal challenges to separations pend, the result could be an expansion of electronic monitoring and even family detention — if Democrats eventually cave to the administration’s demands. Further, they caution that any efforts to resurrect the defunct case management program should make sure it’s awarded to an appropriate organization.

“So much of the last few weeks have been this administration making it sound like it has no option but to separate families, and that’s so incredibly disingenuous when you have this program that, if … your concern is … that people might not comply with their requirements, this would have been exactly what these families needed,” said Obser.