In a win for children’s rights, on December 2, 2016 Texas Judicial District Court Judge Karin Crump ruled that the Texas Department of Family and Protective Services (“DFPS”) does not have the authority to issue state childcare licenses to federal immigration detention centers.
The Obama Administration has been trying to slap the label of childcare facility on the country’s two largest family detention centers, both about an hour’s drive from San Antonio, Texas, ever since July 24, 2015. On this day Federal District Court Judge Gee ruled that the 1997 Flores Settlement Agreement applies to accompanied children, meaning, among other things, that the government cannot detain children longer than necessary, and should not detain them in secure facilities or facilities not licensed for the care of children.
In an attempt to convince the courts that detention centers are appropriate places for children, the Obama Administration then approached DFPS and asked them to license the Karnes County Family Residential Center and the South Texas Family Residential Center as state childcare facilities.
That the government would consider either detention center to be a childcare facility is laughable. Although there is a daycare at both detention centers the Obama Administration requested that DFPS license not only the daycare but the whole detention center. There is no childcare staff in other parts of the detention center – the private, for-profit company GEO Group that runs the detention center has provided nominal training to its employees but the NGO RAICES where I work still sees staff getting angry at young children for playing outside the 5’x7’ designated carpet play space in the visitation area and unwilling generally to deal with the children’s needs. After all, they are not childcare staff.
Perhaps Immigration and Customs Enforcement (“ICE”) thinks that detention centers can be childcare facilities because the mothers are there to care for their children; but the mothers’ ability to care for their children is severely restricted by the nature of detention. For one, giving the GEO Group control over things like food, bed time, lodging arrangements, education and medical care erodes a mothers’ ability to educate, guide, discipline and care for her children and thereby damages the mother-child relationship.
But the problems run deeper: the detention centers not only take away a mother’s ability to care for her children but also fail to fill in the gap. In the latest example of the government not understanding the developmental needs of children, on Nov. 7, 2016 ICE advised the RAICES Pro Bono Project that we could no longer let children use crayons or other coloring items because a child had drawn on a table and “caused property damage to the contractor”. And yet ICE considers the detention center a childcare facility.
Compare these conditions to those of unaccompanied children held in ORR shelters. Although still detained, in general the shelters offer a more welcoming environment with recreation space, sometimes including swimming pools. Children are taken on field trips and each one is provided a free legal consultation to help them understand their rights and responsibilities under U.S. law. In sum, ORR does not treat children as criminals.
On April 29, 2016, despite immigrant rights advocates’ vociferous objections, DFPS gave Karnes County Residential Center a license to operate as a state childcare facility.
Grassroots Leadership Inc. then sued to enjoin the issuance of a childcare license at the South Texas Family Residential Center, where the licensing process was still ongoing. Grassroots Leadership argued that DFPS, a state agency, does not have the power to grant a license to a federal detention center. And on Dec. 2, 2016 the Judicial District Court agreed.
This is an important step in preventing the government from falsely rebranding the jailing of children as a normal daycare operation. Nevertheless, much more needs to be done to align U.S. policy with humanitarian and legal norms. As well established in international law, the decision to detain should be made on an individual, case-by-case basis and detention should occur only when necessary, and in the least restrictive setting possible, to prevent flight or danger to the community. Judge Gee’s order, upheld by the 9th Circuit Court of Appeals on July 6, 2016, reinforces that these principles are equally part of U.S. law.
The Obama administration has argued that detention of accompanied children is necessary – and in the restrictive conditions of a detention center – without any evidence that the children are a flight risk or a danger to the community. In fact, the government acknowledges this when it later releases them, in most cases only after an Asylum Officer has determined that they have a credible fear of return to their home country. There is no reason children can’t be released earlier.
Currently, about 76.4 percent of released families are in compliance with their court hearings. Evidence suggests that compliance increases with access to counsel, legal information programs, case management programs, and community support. For example, according to Human Rights First, when represented by counsel 98 percent of families attend their court hearings.
There are reasonable, cheaper, and more humane alternatives to holding children in detention centers. One alternative is to place more families in case management or supervised release programs when they first arrive. Another alternative is to hold accompanied children in ORR shelters similar to those for unaccompanied children. There are several community-based family shelters around the country that could serve as models, for example the Casa RAICES shelter in San Antonio.
As President-elect Trump’s team reviews immigration policy, it should take a close look at how to best uphold American values. President-elect Trump has an opportunity to show the country and the world that he will uphold the law and put children first.
Sara Ramey is an immigration attorney at the San Antonio based NGO RAICES, where she represents asylum seekers before the Immigration Court, the Board of Immigration Appeals, and the Court of Appeals for the Fifth Circuit.
The views expressed by authors are their own and not the views of The Hill.