Immigrant advocates last week cheered the latest victory in the fight to end the detention of women and children in family detention centers in Texas, as over 500 mothers and kids were released from two facilities over the weekend. But the government has appealed the recent court ruling, which comes amidst a series of contradictory reports from various government bodies, signaling that the battle may not be over just yet.
In response to the rapid rise in the number of families seeking refuge from violence and persecution in their Central American home countries, the Obama administration in 2014 revived a policy of family detention that had previously been all but abolished in 2009. The two largest immigrant family detention centers in the country are located in Texas – the South Texas Family Residential Center in Dilley, and the Karnes County Residential Center in Karnes City. Despite the facilities’ euphemistic names and the government’s attempts to brand them as “family-friendly,” these centers are, in fact, jails from which the families held inside are not allowed to leave without permission, run by for-profit companies: Dilley is owned and operated by CoreCivic (formerly Corrections Corporation of America, or CCA), and Karnes by GEO Group. After numerous complaints of inadequate medical treatment and harsh conditions in the family detention facilities were filed with multiple government agencies, advocates brought a number of lawsuits in an attempt to end family detention once more.
One such lawsuit involved childcare licensure requirements in the state of Texas. In September 2015, Texas issued an emergency rule that effectively exempted immigrant detention facilities in the state from the standards to which all other childcare facilities there are held. Because prisons are not licensed childcare facilities, advocates argued that holding children there violated the decades-old Flores settlement agreement, which requires, among other things, that children only be held in facilities that are “licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children.” In the summer of 2015, a federal judge had found that detaining children in these privately owned prisons did, in fact, violate Flores, and that ruling was upheld on appeal in July 2016, meaning that if the facilities could not obtain childcare licenses, they would be forced to release the thousands of children being held inside.
So the Texas Department of Family and Protective Services (DFPS) issued emergency rule 748.7 in order to exempt the two family detention centers from the rules and minimum standards normally binding on childcare providers in the state. Under this new rule, the Karnes facility obtained its license in April 2016, and the Dilley facility applied for a license but was not granted one because of a court order: In May 2016, a number of women and children held in the two facilities, represented by Grassroots Leadership, sued DFPS, as well as CCA and GEO Group, and in June, Judge Karin Crump issued a temporary injunction prohibiting the state from issuing a license to the Dilley facility while she considered the underlying issue in the case – namely, whether the state had the authority to grant licenses to either facility under the hastily issued relaxed standards in the first place.
Now on December 2, Judge Crump issued her final ruling in the case, declaring the emergency rule invalid. The ruling means that the Dilley center will not be able to obtain a childcare license and invalidates the license previously issued to the Karnes facility. Since, according to the federal courts, holding children in unlicensed facilities violates the Flores settlement agreement, this recent ruling should effectively end the immigrant family detention system in Texas. But Texas immediately appealed the ruling, much as Berks County, Pennsylvania, did earlier this year after a similar ruling revoking the license of the country’s third immigrant family detention center there. All three facilities remain operational to date, though the Texas facilities did release record numbers of women and children the weekend after Judge Crump’s ruling – 61 from Karnes and 470 from Dilley. Despite the insistence of Immigration and Customs Enforcement (ICE) that these releases were previously scheduled and were not, in fact, a response to the court ruling, the nonprofit RAICES, which provides assistance to the families after their discharge, noted that in a single weekend, they saw more individuals than they usually see in an entire month.
All of this comes amid a series of somewhat conflicting announcements and reports from different government bodies regarding immigrant family detention in particular, and the use of private prison facilities in this country more generally. In June this year, Department of Homeland Security (DHS) Secretary Jeh Johnson announced the creation of the ICE Advisory Committee on Family Residential Centers (ACFRC). Comprised of “experts in the fields of primary education, detention management, detention reform, immigration law, family and youth services, trauma-informed services, and physical and mental health,” the Committee was tasked with issuing a series of recommendations to Secretary Johnson and ICE Director Sarah Saldaña in such areas as medical services, educational services, access to counsel, and more.
On September 30, the ACFRC released its final report. Though it spans 159 pages and includes numerous ways to improve conditions in the family detention centers as they currently exist, its very first recommendation was for DHS to recognize that “detention or the separation of families for purposes of immigration enforcement or management, or detention is never in the best interest of children. DHS should discontinue the general use of family detention, reserving it for rare cases when necessary following an individualized assessment of the need to detain because of danger or flight risk that cannot be mitigated by conditions of release.” The report goes on to recommend that, in the limited cases where detention is deemed necessary, “families should be detained for the shortest amount of time and in the least restrictive setting possible; all detention facilities should be licensed, non-secure and family-friendly.” It remains to be seen how, or even whether, the ACFRC’s recommendations will be implemented.
Additionally, the U.S. government has recently been hinting at potential changes to the country’s private prison model more broadly. In August, the Department of Justice (DOJ) announced its intention to phase out its use of private prisons for criminal inmates, with the goal of ultimately ending use of these privately operated prisons, after finding that such facilities are less safe and less effective at providing correctional services. However, immigrant detention is under the purview of DHS, not DOJ. So shortly thereafter, DHS Secretary Johnson directed the Homeland Security Advisory Council (HSAC) to review DHS’s use of private prisons and evaluate whether this practice should be eliminated as well.
On December 1, the HSAC’s Subcommittee on Privatized Immigration Detention Facilities issued its lengthy report. In a somewhat confusing turn of events, the Subcommittee’s first recommendation is for increased ICE oversight of for-profit detention centers, the use of which they acknowledge will likely continue. But the report makes clear multiple times that the vast majority of the HSAC voted in support of Subcommittee Member Marshall Fitz’s disagreement with the assertion that private immigration detention “should, or inevitably must, continue.” In a lengthy dissent included within the report itself, Fitz pointed out the “inferiority” of the private prison model and declared that “a measured but deliberate shift away from [that] model is warranted” based on the preliminary research conducted by the Subcommittee. In the end, 17 members voted in support of the Subcommittee’s report including this important caveat, while five members voted for the report without sanctioning Fitz’s dissent, and one member voted against the report in full.
Again, it is too soon to tell how or whether the Subcommittee’s recommendations and/or Fitz’s proposal will be executed, not least because of the upcoming change in administrations. While the new President-Elect (as well as his pick for DHS Secretary, retired General John Kelly, who is currently a member of the HSAC) may or may not continue the Obama administration’s efforts to reduce or abolish private immigration detention in the U.S., it is worth noting that even this administration’s commitment to these reforms has been fitful at best – DHS just renewed its contract with CCA to run the Dilley family detention center in October.
Cover image by coolloud under CC licence.