After weeks of mounting pressure, the Trump administration finally reversed course on its cruel and unnecessary family separation practice. While it’s good to know that children will no longer be systematically separated from their parents, it’s important for us to keep in mind just how low the bar has been set in terms of how we treat migrant families coming to our borders. What was once family separation will now lead to the return of an already unacceptable situation: the trauma and injustice of indefinite family detention.
Families seeking refuge don’t belong in jail cells, particularly when effective, routine alternatives exist. To understand why, it’s worth reminding ourselves how we got into this mess in the first place.
Mr. Trump’s executive order from Wednesday calls for the attorney general to file a request with the U.S. District Court for the Central District of California to modify the “Flores v. Reno settlement agreement” to permit detention of families throughout the pendency of their criminal or immigration removal proceedings.
The agreement, entered into back in 1997, was the result of a class-action lawsuit filed on behalf of detained immigrant children. It provided national child welfare standards that govern the detention, release and treatment of all children in immigration detention. Among other things, the agreement underscored the duty to minimize children’s detention and affirmed the importance of family unity.
The year 2014 saw an influx of unaccompanied minors and families from Central America seeking refuge in the United States from violence in their home countries. In response, the Obama administration began detaining families — including children — in secured, unlicensed facilities for the duration of their deportation proceedings. As a result, children were held for prolonged periods of time in facilities that were unsafe, unsanitary and unfriendly to children. Thus, in 2015, attorneys moved to enforce the Flores agreement.
And, on July 6, 2016, the Ninth Circuit affirmed that the Flores agreement applies to all children in immigration detention and requires that children be held in the least restrictive form of custody. Later, the U.S. District Court for the Central District of California ordered that children could not be held longer than 20 days in secure, unlicensed facilities.
Fast forward to today, and we have a president who has called on the attorney general to challenge these rulings and return to the traumatic, indefinite detention of children with their parents.
As an immigration attorney, I have witnessed the toll indefinite detention takes on children and parents. Last year, just before Christmas, I traveled to the Berks Family Residential Center in Leesport, Pa. Berks is one of the few immigration detention facilities in the country that holds families. Despite the holiday decorations, the families I met were depressed and distraught. Parents were confused about the immigration process and when they would be released. Children were crying and listless. One little girl kept telling me she just wanted to go home. Another boy told me he missed playing soccer with friends.
Research supports what common-sense and heart tells us to be true: Detention, even for short time periods, results in lasting mental and physical harm to children. As the American Academy of Pediatrics noted in a 2015 letter to then Department of Homeland Security Secretary Jeh Johnson, “The act of detention or incarceration itself is associated with poorer health outcomes, higher rates of psychological distress, and suicidality, making the situation for already vulnerable women and children even worse.”
Furthermore, indefinite detention of children violates internationally accepted human rights principals. As conceded in a 2016 report by the U.S. Immigration and Customs Enforcement’s Committee on Family Residential Centers, “detention or the separation of families for purposes of immigration enforcement or management are never in the best interest of children.”
We must keep up the pressure and demand this administration drop its efforts to erode the Flores agreement by indefinitely detaining families. Except in the rarest of circumstances, family detention must end. This administration will argue that detention is the only way to enforce the rule of law and ensure immigrants attend court hearings. However, that is simply not true. As our criminal justice system demonstrates, alternatives to detention are both routine and effective.
Immigration and Customs Enforcement (ICE) has requested approximately $2.8 billion for detention funding for fiscal year 2019. Rather than spending billions of dollars to pay for immigration jails run by private companies, the government can and should redirect resources to alternatives to detention such as parole, community support programs, and legal representation.
Nickole Miller is a clinical teaching fellow with the Immigrant Rights Clinic at the University of Baltimore School of Law. Her e-mail is nmiller2@ubalt.edu.
