Last month, a federal judge ordered the Obama administration to release “without unnecessary delay” the mothers and children that it began detaining en masse last summer; it remains to be seen whether the government will fully comply with the judge’s order by the court-imposed deadline of October 23. Immigration attorneys and advocates have long condemned the administration’s decision to reinstate a policy of family detention, a practice that advocates assert is inhumane, particularly given the lucrative contracts awarded to for-profit corporations to run the two largest facilities. The judge’s order is the latest development in a legal case begun over twenty-five years ago.
In 1997, a decade of litigation over the detention of immigrant children resulted in what is known as the Flores settlement agreement. The litigation stemmed from the treatment of Salvadoran Jenny Lisette Flores by Immigration and Naturalization Service (INS) agents, who handcuffed and strip-searched the then-15-year-old and refused to release her to her aunt, under a policy only allowing children’s release to their parent(s) or legal guardian(s). Instead, Jenny was kept in detention for two months with unrelated adults in a converted hotel with no educational or recreational programs. Her case became the basis for a class action lawsuit involving all minors in INS custody, and the settlement agreement in that lawsuit ultimately led to a change in INS policy. Recognizing the special vulnerability of children and youths, the agreement requires minors be released from detention “without unnecessary delay;” allows for release to other family members instead of just parents; and mandates that, in the small number of cases where continued detention is necessary because of significant public safety or flight risk concerns, minors shall be held “in the least restrictive setting appropriate to the minor’s age and special needs,” in order to ensure their protection and wellbeing. After the dissolution of the INS, the Flores settlement agreement became binding on all components of the Department of Homeland Security (DHS), including its agents and contractors, as well as the Department of Health and Human Services’ Office of Refugee Resettlement (ORR), which now provides care and custody to minors who enter the United States without their parents.
After last year’s unprecedented influx of both unaccompanied minors and families fleeing Central America for refuge in the United States, the U.S. government began detaining women and children in family detention facilities as part of the administration’s attempt to deter future unauthorized migration (a blanket rationale which has since been ruled unconstitutional by a federal court). Soon after, immigration attorneys and advocates representing family detainees began speaking out about the terrible conditions under which these women and children were forced to live—reports of dreadful medical treatment and the detrimental effects of the trauma of detention on children’s cognitive development and mental health eventually led many elected officials to join countless advocates in the campaign to #endfamilydetention.
As part of those efforts, a group of advocates filed a motion in federal court in Los Angeles in February to enforce the Flores settlement agreement, essentially arguing that detaining children, including those who crossed the border with their mothers and thus were not “unaccompanied,” in these family detention facilities violates the settlement agreement. The advocates asserted that all children were to be covered by the terms of the Flores settlement, and so DHS’s policy of indefinitely detaining all children apprehended as part of a family unit was a clear breach of the 1997 agreement. The advocates also complained that the two largest family detention facilities, in Karnes and Dilley, Texas, were not licensed by the state, flouting the agreement’s requirement that children only be held in licensed facilities. And the advocates also reported a litany of substandard conditions and abusive treatment of children at Customs and Border Protection (CBP) holding stations, where children were held before being transferred to ORR shelters.
On July 24, Judge Dolly M. Gee issued an order declaring DHS in violation of the Flores settlement agreement. As a threshold matter, she first found that the plain language of the 1997 agreement unequivocally included “accompanied” minors, and thus the standards created in that agreement certainly apply to the children apprehended and detained with their mothers since last summer. Though DHS had argued that detaining children with their mothers was necessary to ensure the children’s safety by not separating them from their parents, Judge Gee ruled that the settlement agreement required DHS to release the accompanying mothers as well, “as long as doing so would not create a flight risk or a safety risk.” She also stated that she was “not persuaded” by DHS’s policy argument that families must be detained in order to discourage others from entering the country illegally. She next found that the detention of children in the secure, unlicensed facilities in Karnes, Dilley, and Berks County, Pennsylvania, was a “material breach” of the settlement agreement’s requirement that “children who are not released be housed in non-secure, licensed facilities.” Finally, Judge Gee’s order also discussed the unacceptable conditions under which it was alleged that children have been held in CBP stations, referencing the “voluminous evidence” presented describing overcrowding, extreme cold, and inadequate nutrition and hygiene, and finding these “widespread and deplorable conditions” in violation of the 1997 agreement’s obligation to provide “’safe and sanitary’ holding cells” for children while in temporary custody.
In that order, Judge Gee gave DHS just over a week to respond and explain why the order should not be implemented within 90 days. DHS responded on August 6, but rather than setting forth material changes in fact or law that would prevent them from complying with the order, DHS instead doubled down on its adherence to these discredited policies and simply restated many of the arguments that Judge Gee had previously ruled against.
Accordingly, on August 21, Judge Gee issued a rather scathing order pointing out the impropriety of DHS’s “reheated and repackaged arguments.” She wrote that DHS had “grossly misconstrue[d]” several aspects of her July order, and, significantly, called DHS’s argument that a policy of release would only encourage more unauthorized migration as “speculative at best, and, at worst, fear-mongering.” As such, she ordered DHS to comply with the terms of the July order and bring itself back into compliance with the original Flores settlement agreement by October 23, 2015.
Advocates were thrilled with the ruling, calling it a “historic” victory. But it remains to be seen whether the Obama administration will appeal the decision, and what will happen to the estimated 1,400 detained children and mothers in the meantime. In the weeks since the final ruling, DHS has started to release families, including five families from Dilley who endured up to fourteen months in detention. But attorneys have criticized the lack of clarity in the government’s decision for which families are released and when. DHS Secretary Jeh Johnson said earlier this summer that he was “not prepared to abandon the policy and shut down the facilities;” the coming weeks will determine whether Judge Gee’s order to do so has changed his mind.