It was a scramble for survival: tens of thousands of women and kids streaming across the southern border, bolting from Central American nations where rape and murder rates had reached heights typically only seen in countries facing civil war. They spent days on buses and trains, crossed rivers in flimsy rafts, and trekked through the desert, some mothers carrying newborns in their arms.
The families fled drug trade–fueled gang violence and sought political asylum in the US, fearing for their lives if they returned home. The flood of migrants—mainly from Guatemala, Honduras, and El Salvador— caused a crisis at the border in the summer of 2014, leading the Department of Homeland Security (DHS) to announce a controversial new policy intended to deter would-be Central American migrant families from making the journey to the border.
"Our message to those who try to cross our border illegally is clear: you will be sent home," DHS Secretary Jeh Johnson told the Senate Appropriations Committee last July. "We are building additional space to detain these groups and hold them until their expedited removal orders are effectuated."
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Johnson's testimony signaled a shift in DHS policy, making it clear that the agency would begin detaining immigrant mothers and their children while they fought court cases for asylum ( unaccompanied minors were treated differently and sent to shelters.) Previously, families seeking asylum in the US could pay a small bond as a promise that they would appear at a later hearing, then live in the country with relative freedom until then.
Under the new DHS policy, the migrant families were put in detention centers while they waited for the court dates—prompting a need for a large-scale family detention system. Last summer, DHS contracted with two of the nation's largest private prison corporations—Corrections Corporation of America (CCA) and GEO Group—to open two large facilities in Texas. They were to house a combined total of nearly 3,000 people.
The facilities were a massive investment. According to a spokesperson for Immigrations and Customs Enforcement (ICE), the agency has paid CCA and GEO a total of about $362 million to open and operate the two detention centers facilities. The bulk of that money—about $332 million—has gone to CCA to build and operate the 2,400-bed South Texas Family Residential Center in Dilley, Texas; another $30 million has gone to GEO, which runs the Karnes County Residential Center, a 532-bed family facility outside of San Antonio.
But DHS has faced growing pressure to close the detention centers, where many families have been locked up for seven and eight months, and where several detainees have reported abuse by guards. Now DHS could be forced to shutter the centers altogether. Last week, a federal judge in California ruled that the facilities operate illegally, and ordered DHS to release families from the South Texas and Karnes facilities, citing violations of basic standards in caring for children.
In her ruling—which came in response to a lawsuit filed against DHS by lawyers from the Center for Human Rights and Constitutional Law—the judge, Dolly M. Gee of the Central District of California, marveled at the vast sums DHS had spent paying these for-profit prison corporations.
"It is astonishing that Defendants have enacted a program requiring such expensive infrastructure without more evidence to show it would be compliant with an agreement that has been in effect for over 20 years," Gee wrote. "It is even more shocking that after two decades defendants have not implemented proper regulations to deal with this complicated area of immigration law."
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In the wake of the decision, 178 Democratic members of Congress signed a letter on July 31 demanding DHS end its family detention policy, arguing that it was "detrimental to mothers and children and is not reflective of our Nation's values."
"The detained population is largely comprised of refugees fleeing violence and persecution, many of whom have serious medical and mental health needs that have not been addressed in custody," the letter read. "It is long past time to end family detention."
The congressional response comes after months of complaints about the treatment of detainees in DHS's family facilities. In April, a group of detained mothers at the Karnes facility went on two hunger strikes to protest conditions faced by detainees there, and one refugee attempted suicide this June. Late last month, a former social worker from the Karnes center testified before Congress that her supervisor forced her to erase detainees' medical complaints from their records.
Last September, lawyers with the Mexican American Legal Defense Fund filed a complaint with DHS on behalf of multiple Karnes detainees who claimed there had been "ongoing sexual abuse since August 2014," and alleged that at least three Karnes guards had taken detainees out of their cells in the night to rape them. (DHS investigators said they found "no evidence" to support the claims.)
Despite the ongoing issues with DHS's family detention policies, the Obama administration is now asking the court for a chance to reargue their case on the grounds that the agency is converting the family detention facilities into short-term processing centers for migrant children and their families.
In a court filing submitted last week, lawyers for the US Justice Department claimed the centers are necessary to process asylum requests and to keep mothers with their children. The lawyers argued that limiting family detention would encourage future Central American immigrants by "incentivizing adults to bring children with them on dangerous journeys as a means to avoid detention." (The court has not yet responded to the request.)
DHS insists that the department is already shifting away from the harsh family detention policies implemented last summer. According to DHS Press Secretary Marsha Catron, the agency recently stopped detaining families for months at a time. "Of those families apprehended at or near the border and placed into detention, 60 percent are released within 2-4 weeks," Catron said in an email.
"We are moving toward using family facilities as short-term processing centers, not detention centers, where careful and informed judgments can be made about risk of flight, health needs, and humanitarian protection claims," Catron added. "We anticipate that, in the future, most families with credible claims will be released in an average of 20 days and have proposed that timeline to the Court."
In June, Secretary Johnson admitted that long-term detention for asylum seekers was unnecessary, and said that families would once again be allowed to pay bonds for their release after passing the department's "credible fear" test—a preliminary interview aimed at determining whether a migrant has a strong argument for asylum.
"Once a family has established eligibility for asylum or other relief under our laws, long-term detention is an inefficient use of our resources and should be discontinued," he said in a statement. By mid July, the agency began releasing groups of mothers and children, some who had been locked up for nearly a year.
Since then, occupancy rates at the Texas family detention facilities have plummeted. According to numbers provided by ICE, as of last week, just 101 people remained in the Karnes detention center, filling less than one-fifth of the facility's capacity. At the South Texas center, which can house 2,400 detainees, the population has dwindled to 1,235. The facilities have continued normal intake, but far fewer families have been apprehended in the US this year than last year, due in part to the Mexican government's efforts to tighten its own border security to deter Central American crossers.
But even as the inmate populations dwindle, CCA and GEO have continued to rake in money from the family detention facilities. Since the companies' contracts to run the centers include fixed rates, based off the total of number of beds available, the private prison operators will continue to receive the same monthly payments from DHS regardless of inmate fluctuations, according to the ICE spokesperson.
Leaders of the companies, apparently unfazed by the court's ruling on ICE detention policies, seem to believe the windfall will continue. On a quarterly earnings call in May, CCA's Chief Financial Officer David Garfinkle reassured investors that the company's profits from Dilley would remain stable.
"Our South Texas facility, which is our largest contract with ICE, has a fixed monthly payment. So that serves as a good hedge on population volatility within our portfolio," Garfinkle said, according to a transcript. He projected that the facility would "contribute to further growth in 2015."
According to Immigrations and Custom Enforcement, CCA's current contract extends through November 2016. Meanwhile, a spokesperson for the agency would not provide a specific end date for GEO's contract to run Karnes, but noted that GEO previously ran Karnes as an adult immigrant detention center, and might be revert it back to that function should ICE close its family detention centers.
DHS does have the ability to simply cancel its contracts with the private prison companies. Carl Takei, a staff attorney for the ACLU's National Prison Project, noted that a "force majeure" clause in the contract with CCA permits DHS to cancel the agreement in extreme circumstances, including a "court decision." In other words, the court's ruling against the agency's family detention program could be the exit route that allows the feds to get out of these payments to the private prison companies.
Takei added that DHS might also look to convert both detention centers into adult facilities, but noted that the agency already has 34,000 beds designated for this population, and typically does not fill them all.
A spokesperson for ICE did not respond to multiple requests for comment about whether the agency would break its contracts with CCA or GEO due to declining inmate populations, or in the event that the court rejects the government's request to rehear the family detention case. Spokespeople for CCA and GEO also refused to comment on the contracts, instead offering statements on their respective companies' longstanding relationship with DHS.
Takei pointed out that fierce political and financial pressure from CCA and GEO could stop the government from simply breaking its agreements. Both companies have strong relationships with the federal government. Private prison companies run more than 60 percent of immigrant detention centers in the US—the largest of these companies, CCA and GEO have a combined annual revenue of $3 billion.
The companies have also spent millions lobbying the federal government on immigration issues. An April report by the nonprofit immigrant advocacy group Grassroots Leadership found that CCA and GEO spent about $11 million combined between 2008 and 2014 lobbying the federal government to pay for immigrant detention centers and to prevent immigration reform that would hurt their businesses. The report found that in 2009, the companies lobbied Congress to instate a bed quota, which requires the government to maintain at least 34,000 detention beds in immigrant detention centers. After the quota was put in place, CCA and GEO's profits had doubled by 2013, according to Bloomberg.
"The countervailing pressure on ICE is that they might cause hurt feelings from ICE and GEO," Takei said.
Regardless of whether the court decides to reconsider its decision on the Obama administration's family immigration policy, immigration advocates fear that ICE will find a use for the Texas detention centers.
"ICE signed the Karnes and Dilley contracts in a period of hysteria in response to the number of mothers and children arriving from Central America last summer, so I don't know whether they were thinking about the future," Takei said. "But the fact the government had made the poor decision to obligate itself to pay for these facilities doesn't mean we should stretch to find people to fill them."
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