After reversing course on its policy of separating families at the border Wednesday, the Trump administration officially presented its new plan Thursday: Just go back to detaining families together.
That might sound better, but immigrant advocates have been fighting the practice for years. And now, the administration wants to hold families for as long as possible.
Lawyers for the Justice Department asked a California federal judge Thursday to amend the decades-old legal agreement known as the “Flores settlement,” which stops the government from detaining minors for longer than 20 days in family detention facilities operated by the Department of Homeland Security. These changes would be required in order to hold kids and their families while their case winds through the nation’s incredibly backlogged immigration court system.
The cases can take months, or years. And even with shorter stays, family detention is already deeply damaging to families, say immigration advocates and experts.
“We are hoping that people will still pay attention to all of this momentum and concern for the kids and their parents, that people will understand [family detention] is not a solution,” said Katy Murdza, advocacy coordinator for the Dilley Pro Bono Project, which aims to provide detained families with legal representation. With up to 2,400 beds and about 2,000 people currently detained, by Murdza’s count, the South Texas Family Residential Center in Dilley, Texas, is currently the largest of the three family detention centers in the U.S.
“There’s still kids behind barbed wire, under floodlights, here in Dilley,” Murdza went on. “There are kids being yelled at by the guards because they fell out of line, in an institutional environment, because they are crying for too long. Or they took off their shoes. Or they wanted to wear sandals outside of their room in 100-degree heat.”
Besides Dilley, the other two family detention centers currently operating in the United States are the Karnes Residential Center, in Karnes City, Texas; and the Berks Family Residential Center, in Berks County, Pennsylvania. While conditions can vary (and are generally shrouded in secrecy), there’s at least one constant: The people detained inside cannot leave.
In 2016, the Department of Homeland Security asked a panel of experts to evaluate the government’s practice of family detention. Those experts’ recommendation: Stop it.
“Detention is generally neither appropriate nor necessary for families,” their report read, noting that many of the women and children who cross the United States’ southern border without authorization are fleeing trauma or persecution in their home country. It added, “The indefinite nature of immigration detention may trigger a profound sense of powerlessness and loss of control, contributing to additional severe and chronic emotional distress for asylum seekers.”
“The indefinite nature of immigration detention may trigger a profound sense of powerlessness"
Even a few weeks in detention can lead children to feel depression and anxiety, or make them suicidal, a 2015 Human Rights First report found.
Detention can also break down parents’ relationships with their children, since parents effectively lose their authority, according to the 2016 report. “Children blame their parents for being locked up; the stress, fear and powerlessness has a direct effect on children’s behavior and simultaneously undermines parents’ ability to address that behavior.”
Instead of detaining families, the panel recommended that the Obama administration release families while they navigate immigration proceedings. That, obviously, didn’t happen.
Now, the Trump administration’s proposal to detain entire families throughout their immigration proceedings means that people could be left in detention for a very long time. In fiscal year 2018, there were 679,627 pending immigration cases caught in the U.S. immigration court system, according to an analysis by Syracuse University. These cases took an average of 715 days to process.
Right now, the Dilley Pro Bono Project generally represents people through their “credible fear” interview, which establishes whether someone who wants asylum has a claim in the eyes of the government. That’s generally held within a few weeks of someone’s arrival at a detention center. If the Project has to represent more people, for longer, Murdza said, “Access to attorneys is definitely going to be a problem.”
Still, it’s unlikely that the Trump administration will successfully alter the Flores settlement, which is essentially a consent decree reached between the U.S. government and the attorneys who represented a Salvadoran teenager named Jenny Lisette Flores in her battle over the indefinite detention of children. (Kids can be still detained longer than 20 days in facilities operated by the Office of Refugee Resettlement, where they’re not with their parents.) While the original settlement was reached in 1997, it’s since been amended.
"To move to modify a consent decree is a very lengthy process full of litigation,” explained Holly Cooper, co-director of the Immigration Law Clinic at the University of California Davis School of Law, who has helped litigate enforcement of the Flores settlement. Negotiating changes to the agreement could take months or years, Cooper said.
However, the government faces few consequences for violating the Flores settlement; indeed, attorneys accuse the Department of Homeland Security of violating it all the time.
“As we’ve stressed over the past few weeks, it’s so important for kids to have the physical and emotional protection of a parent, especially in traumatic times,” Murdza said. “[But] that’s not the only thing they need.”
Keegan Hamilton contributed reporting.
Cover image: A playground surrounded by cottages to house immigrants at a new family immigration detention center in Dilley, Texas, on Monday, Dec. 15, 2014. (AP Photo/Will Weissert)