Government Response to Flores Ruling Misrepresents Family Detention

New York City—Human Rights First today said that the government’s response to the federal court ruling that orders an end to the Obama Administration’s policy of holding children and their mothers in immigration detention facilities for weeks or longer inaccurately describes family detention and U.S. immigration law, while seeking to justify the administration’s flawed policy. The government’s brief makes clear that the administration and the Department of Homeland Security (DHS) still wish to use immigration detention to “dis-incentivize” or deter families from seeking protection in this country. The California District Court Judge Dolly Gee ruled at the end of July that the administration’s family detention policy violates a nearly two decades old court settlement regarding the detention of immigrant children.

“The U.S. government’s response paints an inaccurate picture of family detention facilities and glosses over the very real challenges the children held in these facilities face,” said Human Rights First’s Eleanor Acer. “The government seems to be arguing that it cannot manage migration or an increase in asylum seekers fleeing persecution and violence without resorting to the use of inhuman detention practices. Experts agree that the government has more than enough tools to manage the arrival of families seeking asylum at our border. There is no need to send children and their mothers to detention facilities for weeks or longer.”

In today’s official response, the government contends that it is transforming family dentition facilities into “processing” centers with average lengths of stay of 20 days, where it can promote access to counsel and assess eligibility for relief. However Human Rights First staff—who spent last week at the South Texas Residential Facility in Dilley, Texas—found that nearly all of the 55 families they assisted had been held in detention for one to two months. They also found that in many cases Immigration and Customs Enforcement (ICE) counsel vigorously contested release on conditional parole and urged bonds that were too high for indigent refugee families to pay, effectively prolonging dentition as volunteer attorneys spent additional days and weeks working to secure appropriate and humane conditions of release.

While many families have been released, many new families have been sent into immigration detention facilities in their place. Human Rights First staff reported conditions on the ground that stand in stark contrast to the picture painted by the government in its response to the Flores ruling. In addition they noted that many of the children and their mothers experience trauma, sleep deprivation, and depression. The government’s vision of family detention would leave asylum-seeking children and their mothers held in U.S. immigration detention facilities for three weeks or longer. As Human Rights First’s social worker concluded based on interviews in Dilley last week, children held for even a few weeks suffer negative mental health impacts.

The government’s response also fails to explain that it is not required to use expedited removal in areas between ports of entry. The use of expedited removal is only mandatory at formal entry points. For many years U.S. immigration authorities did not use this process except at formal border entry points. Even now, Customs and Border Protection routinely refers families into the regular removal process rather than referring them into expedited removal.

Judge Gee’s ruling requires that children be released without unnecessary delay to a family member in order of preference beginning with parents, including the accompanying parent who was detained with the child. Accompanying parents “shall be released with the [child] in a non-discriminatory manner in accordance with applicable laws and regulations unless after an individualized custody determination the parent is determined to pose a significant flight risk, or a threat to others or the national security, and the flight risk or threat cannot be mitigated by an appropriate bond or conditions of release.”

In addition, the ruling found that children cannot be detained in unlicensed or secure facilities. The court’s decision makes clear that existing family detention facilities are in fact secure facilities. The government must also propose standards for ensuring that temporary custody in Border Patrol facilities complies with the settlement agreement’s provision that they be “safe and sanitary.”

“The United States does not need to violate the basic human rights of children and their mothers in order to effectively respond to these challenges. The government’s response seeks to perpetuate the misguided policy of sending families seeking asylum to immigration detention,” noted Eleanor Acer. “There is no good way to do the wrong thing. The United States is more than capable of responding to a refugee and migration challenge at its border without violating human rights and while also effectively combatting smugglers. The numbers of Central American women and children who have sought this country’s protection over the last year are a drop in the bucket compared to the millions who have fled to countries neighboring Syria.”

As detailed in Human Rights First’s recent report, detention creates many obstacles for asylum-seeking families and negatively impacts the mental health and development of children. Rather than sending women and children seeking asylum into immigration detention, the Obama Administration should expand the use of community-based, case-management focused alternatives to detention and support staffing for the immigration courts and asylum office, as well as legal counsel for asylum seekers and other immigration detainees.

Families who are not in detention or released from detention mostly appear for their immigration court hearings, and nearly all who are represented by counsel appear for their hearings. Families who have legal representation appear 98 percent of the time. Instead of detaining children and their mothers for weeks or longer, the government should allow pro bono attorneys access to families at border facilities and should invest in the provision of counsel.

For more information or to speak with Acer, please contact Corinne Duffy at [email protected].


Published on August 7, 2015


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