The Trump administration and the state of Texas are attacking legal limits meant to protect migrant children from indefinite detention as well as maintain standards at immigrant family jails on two fronts this week.
The Trump administration plans to withdraw from the federal consent decree that has governed detention standards for child migrants since 1997, known as the Flores settlement, in a move aimed at getting around the settlement’s limits on the federal government’s ability to detain minors in family jails indefinitely.
The nearly 20-year-old Flores court agreement requires that children must be held in the “least-restrictive” conditions possible. In 2015, a federal court ruled that to uphold the older settlement, children must be released from family jails within 20 days. While President Trump can’t overturn a federal court decision, the administration has the authority to create regulations to replace the court agreement. Those regulations, however, must comply with federal legal standards.
So the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) proposed new draft regulations this week that officials claim will essentially nullify Flores while treating migrant children “with dignity, respect and special concern for their particular vulnerability as minors.”
“If we care about the separation of children from their parents or their caretakers, then we should also care about the prospect of indefinitely detaining children in prisons, which is what this move is intended to do,” said Bob Libal, who is executive director of the Austin-based Grassroots Leadership, an organization that works to oppose for-profit incarceration. “This administration has demonstrated that it is willing to do harm to children to uplift its anti-immigrant political ambitions.”
The withdrawal sets up an yet another inevitable legal confrontation with U.S. District Court Judge Dolly Gee, who has presided over the Flores agreement and has refused to allow migrant children to be detained with their parents for periods longer than 20 days. The new regulations could not take effect until after a 60-day public commenting period and until counsel in the Flores case have a chance to challenge the new rules in court.
In July, Judge Gee rejected the Justice Department’s request for permission to indefinitely detain children and parents together until their cases are adjudicated, calling it “a cynical attempt … to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”
The new regulations would allow U.S. Immigration and Customs Enforcement (ICE) to expand its family detention capacity beyond its current 3,750 beds across three family jails, two of which are in Texas. The new regulations would also allow ICE to incarcerate families for lengthier indefinitely.
The proposed rules would also designate that any new family jails will be “evaluated by a third-party entity engaged by ICE” so that the jails meet current standards but fail to identify exactly what third-party entity would perform the supposedly independent evaluations.
Trump administration officials have continually called the Flores protections “loopholes,” and have blamed Democrats for failing to reverse them, saying the laws “forced” the administration to separate families under its “zero tolerance” policy. More than 500 children still remain separated from their parents in federal custody six weeks after a court-ordered reunification deadline.
DHS Secretary Kirstjen Nielsen maintained that rhetoric Thursday, saying, “Legal loopholes significantly hinder the Department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country.”
But immigrant rights and refugee advocates hotly contest this characterization. “What the administration is calling ‘legal loopholes’ are actually basic standards for protecting children — standards they are trying to scrap to pursue an agenda of family incarceration that the government’s own doctors have warned is harmful and dangerous for children,” said Michelle Brané, director of the Migrant Rights and Justice Program at the Women’s Refugee Commission and a leader of the Families Belong Together coalition, in a statement.
A Federal “Self-Licensing” Scheme
The new regulations would also create a new federal licensing scheme for family jails, since the Flores settlement requires migrant children be held in state-licensed “child care” (yet still penal) facilities, which has proved to be a major obstacle for the government.
The new licensing scheme “doesn’t change the fundamental nature of the facilities,” Libal told Truthout. “The purpose of Flores is not for government entities to shape licensing regimes around what prisons look like. The purpose is to ensure children are safe when they’re in the custody of the government…. It doesn’t change the fact that these are prisons and not child care facilities.”
Libal witnessed the fight over licensing also play out at the state level this week as his nonprofit was back in court with the state of Texas Wednesday after suing to prevent the Texas Department of Family and Protective Services from licensing family jail units as child care facilities in 2016. A Travis County judge blocked the state from lowering its standards to license the jails that December, ruling the state didn’t have the authority to license them. But the state appealed, and now a court is deciding whether lift or affirm the state’s injunction.
Lifting the state-based child care facility designation is another important way the Trump administration hopes to get around Flores protections, as the federal self-licensing would allow the administration to detain children with their parents in family jails that fail to meet the current minimum standards for child safety.
“I would hope that the courts — and I think Congress could weigh in here, too — would want to uphold the spirit of Flores, which is about protecting children in dangerous, traumatic experiences and not exposing them to those experiences by slapping a license on a prison,” Libal said.
Brané agrees. “The same administration that forcibly separated children from their parents and knowingly inflicted trauma on them cannot be allowed to set the standard of care for immigrant children. Instead of allowing the Trump administration to lock children up, Congress must subpoena and investigate the administration officials responsible for policies that subject children to harm and hold the perpetrators accountable for human rights abuses,” she said.
State-Sanctioned Child Abuse
Immigrant family jails, in tandem with HHS-run detention shelters for migrant children, have a history of violent physical and sexual abuse.
Just last month, the mother of a Guatemalan toddler filed a lawsuit alleging her little girl died in May as she was denied medical care while detained at a family jail in Dilley, Texas.
Also last month, Judge Gee ordered federal officials to remove children from the Shiloh immigrant jail in Texas after evidence surfaced that the jail was using psychotropic drugs as a “chemical straitjacket” to manage children, in flagrant violation of Flores requirements. After noting “persistent problems” with child jails along the border, the judge also appointed an independent monitor to reports facts regarding conditions at the jails to her directly.
Judge Gee’s decision followed a lawsuit from the Center for Human Rights and Constitutional Law, which claimed that migrant children have been forced to strip naked, and have been starved and physically assaulted at Border Patrol Stations and ICE immigrant jails. The suit included more than 200 accounts from migrant children and their parents detailing horrific conditions, including being denied clean water and resorting to drinking toilet water, to being kicked awake at night by guards.
Attorneys at the family jail in Dilley, Texas, have described similar accounts of detained migrant children’s abuse, including Customs and Border Protection agents routinely kicking children and psychologically tormenting separated children by telling them they would be adopted by U.S. families or telling them that they would never see their parents again.
Just last week, at a family jail in Karnes City, Texas, authorities reportedly tore away children who had only recently been reunited with their parents after parents there protested their conditions and treatment.
To make matters worse, thousands of migrants have reported sexual abuse while in ICE custody, according to the agency’s own records, including the case of another mother who was held at a family jail in Pennsylvania with her 3-year-old son. Last month, two youth care workers at Arizona shelters run by the Texas-based Southwest Key Programs were arrested and charged with sexually assaulting immigrant teenagers.
Further, a state review found an immigrant jail in Shenandoah Valley, Virginia, straps children to chairs and puts bags over their heads. Children as young as 14 said they were beaten, handcuffed and shackled while held there.
“The Trump administration has found a new low in the family separation crisis: seeking indefinite imprisonment of children,” said Efrén Olivares, who is racial and economic justice director for the Texas Civil Rights Project, in a statement. “For months, we watched in horror as children were ripped from their parents, but the remedy for family separation is not, and never will be, indefinitely locking up whole families in immigration prisons.”