Facing heavy criticism for the conditions of confinement at its border detention centers and immigration jails, the Trump administration finalized a rule on Wednesday that would terminate a decades-old legal settlement governing the treatment of migrant children, and allow federal agencies to incarcerate migrant families indefinitely while they wait to see an immigration judge.
The move is the latest to put punishment — in the form of mass incarceration, deportation and austerity — at the center of the administration’s response to the humanitarian crisis at the southern border, where thousands of people fleeing violence and poverty in Central America are seeking asylum in the United States. President Trump and immigration officials routinely describe their harsh immigration policies and recent mass raids as “deterrents” meant to stem the “flow” of migrants to the southern border.
However, researchers and advocates say “deterrence” via punishment and incarceration is inhumane and ineffective because so many migrants are desperately fleeing poverty and violence. Public health advocates are also worried, citing the administration’s track record regarding the conditions of immigration jails. At least 26 people have died after being held in immigration custody since Trump took office, including six children, according to migrant advocates.
Others say reinstating indefinite detention for families would only benefit private prison companies and other contractors while appeasing Trump’s nativist base ahead of the 2020 elections.
If implemented, the new regulations would allow Immigration and Customs Enforcement (ICE) to hold migrant families who cross the border without documents at immigration jails designed for families until a judge decides whether to accept their asylum claims or remove them from the country.
These so-called “family residential centers” became flashpoints of controversy during the Obama administration, when DHS jailed hundreds of families fleeing Central America indefinitely in an effort to speed up deportations in 2014 and 2015. A family jail in Artesia, New Mexico, both opened and closed in 2014 amid a firestorm of criticism from human rights groups.
Three such facilities currently exist — two in Texas and one in Pennsylvania — and ICE could hold families in other facilities that meet “standards” established under the new rules, as long as they are licensed to care for children or are evaluated by a “third-party entity engaged by ICE,” according to the Department of Homeland Security (DHS).
With these new rules, the administration says it will implement the “relevant and substantive” terms of the 1996 Flores Settlement Agreement, a legal agreement that has effectively governed the treatment of migrant children for years in the absence of action by Congress. By saying it will ensure the “humane detention of families” and “satisfying the goals” of the agreement with new regulations, the administration hopes to codify the terms of the agreement in federal policy so it can pull out of Flores altogether, a longtime goal of anti-immigration conservatives.
“There is no way we can trust that the same administration that let six children die under its watch, and argued that kids don’t need basic necessities like soap and toothbrushes, is capable of regulating itself,” said Jess Morales Rocketto, chair of Families Belong Together, in a statement.
In a press conference on Tuesday, acting Homeland Security Secretary Kevin K. McAleenan said ICE currently has the capacity to hold about 2,500 to 3,000 adults and children in “residential” facilities for families. The administration asked Congress for funding for additional “family beds” but did not receive it, he said.
“Immigrant Suffering” For-Profit
Silky Shah, executive director of Detention Watch Network, a group that helped expose the harsh conditions of family confinement at the Artesia facility, said the Trump administration “will stop at nothing to perpetuate immigrant suffering.”
“In addition to expanding prolonged detention of children, this policy change would allow ICE to circumvent contracting protocols and dismiss state licensing of childcare facilities,” Shaw said in a statement on Wednesday. “The Trump administration and ICE are caging immigrants at unprecedented levels — currently 55,000 — and doing everything possible to make it easier to do so with little care for those in custody.”
The two largest remaining family jails are located in Texas and run by the largest private prison firms in the nation. The Karnes County Residential Center is run by GEO Group, and the South Texas Family Residential Center in Dilley is run by CoreCivic. The vast majority of families would likely be held in such for-profit jails under the administration’s new policy for detaining families, according to Bianca Tylek, the executive director of Worth Rises, a group that tracts the for-profit prison system. Nationally, about 72 percent of immigrants who are detained are held in for-profit jails.
“All of these decisions really, really stand to benefit one particular set of people more than anything: the executives and corporations that run private prisons and specifically immigration detention facilities,” Tylek told Truthout in an interview. “They see their earnings increase when more people come in and more people stay longer.”
Trump also appears to be making immigration central to his reelection campaign, as his hard-line and racist rhetoric about “the wall” propelled him into the White House in the first place. For Trump and his advisers, incarcerating immigrants is red meat for the right-wing base, and speeding deportations is a deliverable to voters as much of “the wall” remains unbuilt. At the press conference on Wednesday, McAleenan repeatedly spoke of getting “immigration results.”
The Center for American Progress, which opposes the administration’s effort to overturn the Flores agreement, estimates the plan for indefinite family detention could cost $2 to $12.9 billion over the next decade, depending on the number of migrants arriving at the border and whether ICE and DHS choose to open additional “family residential centers” to jail families awaiting their day in immigration court.
“A Public Health Crisis”
The move to reestablish indefinite family detention comes after months of public outcry over the mistreatment of children at temporary holding pens near the border and in the nation’s rapidly expanding network of immigration jails.
Earlier this week, civil and disability rights groups filed a sweeping lawsuit against the administration alleging that immigration jails for adults across the country provide dangerously inadequate medical care –– or deny it altogether –– and discriminate against immigrants with disabilities by refusing accommodations such as wheelchairs and sign language interpreters. The Border Patrol announced this week that it would not provide flu vaccinations to migrant children in its border holding pens after doctors around the country raised alarms about the spread of disease among vulnerable kids.
Jim Mangia, president of St. John’s Well Child and Family Center, a community health clinic in Los Angeles, denounced the vaccinations decision.
“I think that what the Trump administration is essentially doing is creating a public health crisis, so it’s not only endangering children and families in the detention centers, but it’s also endangering the surrounding communities,” Mangia said in an interview. “If there is a flu epidemic at a detention center, it’s not going to be contained within the four walls of the detention center just because they will it.”
McAleenan said the “family residential centers” that would detain migrant families are equipped to provide proper medical care to children and their parents. The administration appears eager to move migrants out of the notoriously crowded holding pens at the border to those that are better equipped to care for kids — without releasing families from incarceration. However, given the Trump administration’s track record — which includes recent outbreaks of mumps at immigration jails for adults — Mangia said ICE should not be trusted to hold families for long periods of time.
“Clearly, we can’t trust the Trump administration or ICE for that matter to care for the health of the children and their families because we have already seen numerous adults and children die in detention facilities of preventable conditions,” Mangia said.
A Painful Policy of “Deterrence” — Again
McAleenan claims the “family residential facilities” provide snacks and three meals a day, quality medical care, educational resources and recreational activities, as well as means for parents to communicate and meet with family members and lawyers.
“There is no intent to hold families for a long period of time,” McAleenan said, adding that families were held an average of about 50 days when the Obama administration rolled out a similar policy.
When asked by a reporter whether providing such services would attract more migrants to make the dangerous journey to the southern border, McAleenan said the administration is committed to “getting immigration results” by “effectively implementing immigration consequences.” The new rules allowing for indefinite detention of families, he said, would speed up deportation proceedings and send a message to prospective migrants that arriving at the border with children is not a “passport” into the United States.
McAleenan said the new rules are designed to close the so-called “catch-and-release” loophole — a dehumanizing term used by the administration and right-wing activists to describe policies that allow some undocumented migrants (usually those with children) to live outside of jail while their cases wind through the courts. Trump and Stephen Miller, the president’s hard-line senior adviser on immigration, fired top officials who dragged their feet on the issue out of fear that increasing incarceration would cause large numbers of family separations.
McAleenan and others in the Trump administration claim that large numbers of families are attempting to enter the country because migrants believe — and smugglers advertise — that they will be allowed to live in the U.S. for a year or two before their cases are resolved. So, the administration wants to incarcerate as many families as possible in order to fast-track their deportation proceedings through an already backlogged system, deporting larger numbers of people faster.
However, researchers have found that both the Obama administration’s indefinite detention policy and the Trump administration’s now-defunct “family separation” policy did not have a significant impact on the number of migrants entering the country and seeking asylum. They’ve found that migration is driven by economics and the threat of violence back home.
“By dismantling the Flores Settlement Agreement, which limits child detention and provides critical safeguards, the administration will indefinitely incarcerate kids and families alike,” Shah said. “Incarceration exacerbates the trauma many are fleeing, while subjecting people to egregious conditions and at times fatal medical care.”