Just, Unjust, or A Little of Both: the Inexorable Movement toward Ending Family Detention

By Nicholas Moffa
May 21, 2015

Detaining women and children in so-called “family detention centers” is completely morally unacceptable.

Women do not receive adequate access to legal representation; families inside the facilities don’t have access to a sufficient quantity of clean water. Even worse, children are starting to blame themselves for their mothers’ trauma. These situations make up only the tip of a much larger and bleaker iceberg, but luckily, work is being done on several fronts to attempt to end family detention. While some have the potential to actually jumpstart effective change, others are little more than smokescreens that reflect minimal levels of actual improvement. Below, I will detail four such recent actions and gauge their potential moving forward in the nationwide effort to end family detention once and for all!

ICE Announcement

“We understand the unique and sensitive nature of detaining families…The measures ICE [U.S. Immigration and Customs Enforcement] is announcing reaffirm that understanding and our commitment to ensuring all individuals in our custody are held and treated in a safe, secure, and humane manner.”

On May 13, ICE Director Sarah R. Saldaña introduced a new series of actions “to enhance oversight and accountability [and] increase access and transparency” in family detention centers. They account for the provision of different amenities for the mothers and children locked inside and propose alterations to the physical structures of the centers themselves. Nevertheless, the construction of an additional playroom for children still fails to recognize one fundamental truth: it has never been, is not, and never will be morally acceptable to detain children and their parents. No number of toys can ever repair the psychological damage children suffer from being incarcerated for months, especially for those who now have lived behind bars longer than they have been free.

The recent actions announced by ICE are little more than vague and weak efforts to make a horrific system “better.” Largely symbolic, they sadly do not signal a larger effort by the Department of Homeland Security or the Obama Administration to move toward ending family detention. On the contrary, these so-called improvements may signify the hardening of the administration’s ever-more-resolute position on the necessity of immigrant detention. Justice Rating (1-10): 1, for being little more than a smokescreen obfuscating the continuation of a larger injustice.

The Accountability in Immigration Detention Act of 2015

Luckily, not all movements surrounding immigrant detention provide such few reasons for hope. The Accountability in Immigration Detention Act of 2015, reintroduced by Representative Adam Smith (D-WA-09), attempts to both provide added protections for people being detained and support further research into, and implementation of, alternatives to detention (ATDs). Among other important improvements, the legislation eliminates the congressional detention bed quota; guarantees that all those in detention have access to an orientation on their legal rights; and mandates that the Department of Homeland Security (DHS) provide community-based ATDs that include case management (many would be run through local non-governmental organizations, also known as NGOs). Of greatest note is the mandate surrounding ATDs: not only are they significantly cheaper than actually detaining people, but they also have proven effective in ensuring women and children seeking asylum attend their “credible fear” hearings. Most importantly, they allow the U.S. asylum system to work without negatively impacting the health and wellbeing of immigrant children and their parents.

Representative Smith’s Accountability in Immigration Detention Act of 2015 proposes several important changes and modifications to the current system of family detention, with his emphasis on community-based ATDs arguably being the most important. For his efforts, we at NETWORK commend Representative Smith. However, in this Congress, it faces very little chance of passage, and it still does not go far enough in calling for an end to family detention. Justice Rating: 5, for movement in the right direction, yet failure to go far enough.

In the Courts

ICE mandates and new legislation are not the only efforts currently underway to reform and/or end the detention of immigrant women and children. Since the beginning of 2015, there have been vitally important developments in two lawsuits, R.I.L.R. v. Johnson and the 1997 immigration case Flores v. Meese.

In R.I.L.R., a D.C. District Court found that the U.S. federal government is not permitted to detain women and children as a method of deterring further migration to the U.S. from Central America, despite the government’s arguments to the contrary. In February 2015, the Court issued a nationwide preliminary injunction enjoining ICE from using deterrence as a justification for keeping an individual with credible fear claims in detention. Predictably, ICE, despite claiming it is currently complying with the injunction, is pushing for a reconsideration of the ruling. This lawsuit could carry on for quite a while longer, but it certainly seems to have some promise in limiting the number of immigrants, especially women and children, who can be legally detained. Justice Rating:7, for having the potential to begin the process of ending a grave injustice.

Finally, we come to the greatest opportunity of all and to the woman who has made it possible: Judge Dolly Gee. To provide some background, back in 1997, a settlement in a case called Flores v. Meese “mandates that the government ‘release a minor from its custody without unnecessary delay’ as long as detention is not required to ensure a child’s appearance in immigration court or for safety reasons.” If children must be held in detention, they are supposed to be held in the “least restrictive environment possible.” On February 2, 2015, a number of human rights groups and lawyers for Central American families in detention filed a motion to enforce the Flores settlement in the U.S. District Court for the Central District of California. In other words, they wanted the children and their parents currently being detained under a “no release policy” to receive the protection they are guaranteed under Flores.

On April 24, Judge Gee issued a tentative ruling that the current policy of detaining children and their families violates Flores; however, prior to officially filing her ruling, Judge Gee gave both sides 30 days to negotiate a settlement (if you’re doing the math in your head, those 30 days run out this Sunday, May 24). If they can’t reach an agreement, Judge Gee could issue a final ruling, providing the government with a number of choices: release the families, release the children and continue to detain the mothers, or completely change the way immigrant families are detained. Ideally, either the settlement that could be reached over the course of the next few days or Judge Gee’s ruling will fulfill the prediction of an immigration attorney familiar with the proceedings: “it’s the beginning of the end of family detention as we know it.” Justice Rating: 9, for looking like a groundbreaking opportunity to spark the end of family detention.

The Way Forward

It’s clear that, currently, there is a significant amount of momentum surrounding family detention. All of the different types of progress vary greatly in terms of effectiveness. Some, like the ICE actions, serve as little more than a symbolic nod to human rights and faith-based groups like NETWORK; others, like Representative Adam Smith’s new legislation, represent significant forward movement. However, the true debate over the future of family detention seems to depend upon the courts, and especially on how the recent lawsuit presided over by Judge Gee concludes in the coming days. Overall, the most important message to lift up to our members of Congress and to the administration is that detaining families, especially our most vulnerable migrant sisters and brothers, is morally unacceptable, no matter how “justly” it may be carried out. The end of family detention is inevitable. We must join together to lift up our moral voice across the United States, crying out in one voice: “END FAMILY DETENTION!”

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