#FamiliesBelongTogether—in Detention? The Administration Seems to Think So.

Under this administration, calls to keep families together can be used to justify family detention, according to advocates. For those seeking to prevent human rights abuses against immigrant communities, the demands must be more far-reaching and reflect experiences that extend beyond what is happening at the border.

[Photo: People hold illustrations of a child behind the United States flag, the red stripes are like jail bars.]
Activists rally in DC for the #FamiliesBelongTogether march on June 30. Lauryn Gutierrez / Rewire.News

More than 30,000 people participated in #FamiliesBelongTogether marches nationwide this past weekend in response to the Trump administration’s policy that separated children from their parents at the border. While Trump signed an executive order on June 20 to end the practice, advocates told Rewire.News a more nuanced understanding of “family separation” is needed.

When ending its family separation policy at the border, the Trump administration quickly moved to further expand the practice of detaining migrant families together in the United States. Under this administration, calls to keep families together can be used to justify family detention, according to advocates. For those seeking to prevent human rights abuses against immigrant communities, the demands must be more far-reaching and reflect experiences that extend beyond what is happening at the border.

MoveOn, the American Civil Liberties Union, the Leadership Conference on Civil Rights, and the National Domestic Workers Alliance partnered to organize the national day of action on June 30 to protest the Trump administration’s zero tolerance immigration policies. Before the weekend’s marches, however, advocates who spoke to Rewire.News expressed concern about the ways the complex and inhumane nature of the immigration system was being “oversimplified.”

Pennsylvania Immigration and Citizenship Coalition Executive Director Sundrop Carter is also a member of the Shut Down Berks Coalition, and she has been working to for years to shutter the doors of the Berks County Residential Center, a family detention center in Leesport, Pennsylvania.

“People who have not been paying attention to immigration policy for long and who don’t know the history of family detention may think that family detention—or in Trump’s words ‘keep the families together’—sounds way better than ripping children out of the arms of their parents. But for people who have seen firsthand what family detention is, or for people who have been trying to end family detention, they will tell you family detention is not the answer. I mean, are we really acting like family separation and family detention are the only options?” Carter said.

Speakers at a march in Greensboro, North Carolina, hosted as part of the #FamiliesBelongTogether campaign, offered a more nuanced explanation of the issue. Speaking at the event, a Deferred Action for Childhood Arrivals (DACA) recipient with the organization Siembra NC explained how families in nearby Alamance County could be separated if Sheriff Terry Johnson, who has referred to Mexican immigrants as “taco eaters,” re-enters a 287(g) agreement with Immigration and Customs Enforcement (ICE). That federal program effectively deputizes local law enforcement to act as immigration agents, so that any interaction an undocumented person has with a police officer can funnel them into deportation proceedings. A coalition of interfaith leaders also spoke at the event, including Reverend Julie Peeples of Greensboro’s Congregational United Church of Christ, who told the crowd that “families don’t belong in cages any more than children do.”

What wasn’t touched on at the march, however, was the nation’s re-emerging sanctuary movement. Undocumented immigrants nationwide who have run out of options for remaining in the United States are taking sanctuary in churches, and this too is a form of family separation.

In April, Rosa del Carmen Ortez-Cruz became the sixth person in sanctuary in North Carolina, a state that “has the most active congregational sanctuary cases in the nation,” the Herald-Sun reported. Winston-Salem resident Minerva Garcia has been the only person in North Carolina to leave sanctuary recently; Juana Luz Tobar Ortega entered sanctuary weeks before Garcia at a church just a few miles away, where she remains, separated from the daily lives of her four children, two grandchildren, and U.S.-citizen husband.

Organizations like Carter’s are working to “shift the narrative” around family separation to include stories that may resemble Ortega’s, broadening the lens through which activists talk about keeping families together and understand these issues. Before the #FamiliesBelongTogether marches, Carter said she and her team had to monitor social media for different local events created for the day of action because a lot of people were cheering Trump’s executive action, “talking about how good it is that families won’t be separated anymore.”

“After so many comments, I began to wonder if some of the marches were going to be celebratory in nature,” Carter said. “This made us realize that members of our coalition need to be engaged in the process of education, making it clear what family detention is and isn’t, and also making it clear that family separation hasn’t ended because we know that families are separated through deportations and detention. People need to understand what the executive order did.”

Trump’s Executive Order: What It Is, and What It Isn’t

Trump’s executive order did not end his “zero tolerance” policy, nor did it require authorities to reunite families that have already been separated. The federal agencies tasked with the care of migrant children rendered “unaccompanied” have floundered in their attempts to reunite families separated at the border, largely because there was never any plan to do so, a government attorney said during recent court proceedings.

U.S. District Court Judge Dana Sabraw ruled last week that “the Trump administration had until July 10 to reunite migrant children under 5 with their parents, and until July 26 to reunite the rest. But the refugee office is still struggling to answer basic questions such as how many children in its custody were separated from their parents,” Politico reported on Monday. And in states like Michigan, which have received dozens of migrant children subjected to the zero tolerance policy, foster agencies have not received clear direction from federal authorities on how to reunify children with parents or other family members. Families that have been identified for reunification must first navigate “an exhausting, intimidating—and sometimes expensive—thicket of requirements,” the New York Times reported, including thousands of dollars in airfare to bring their children home.

However, what Trump’s executive order did was further criminalize asylum-seeking migrants, mandate a dramatic expansion of family detention, and challenge the Flores settlement, which is the only legal framework that provides basic protections to children in immigrant detention.

A number of recent court filings by the Trump administration directly challenge those protections and are poised to fundamentally change family detention. But before delving into these more recent developments, it’s important to unpack the Flores settlement.

What Is the Flores Settlement?

Prior to the creation of the Department of Homeland Security (DHS) and ICE in 2003, there was Immigration and Naturalization Services (INS). In the 1980s, attorneys filed several lawsuits on behalf of detained unaccompanied minors, including a 1985 class action lawsuit from the American Civil Liberties Union (ACLU) on behalf of a 15-year-old Salvadoran girl named Jenny Lisette Flores. The suit challenged INS procedures for detaining, treating, and releasing immigrant children.

The case reached the U.S. Supreme Court in 1993, with the Court mostly siding with the government. But in 1997, a consent decree was agreed to by the Clinton administration and the plaintiffs in the case. This became known as the Flores settlement.

As Vox’s Dara Lind explained, “The Flores settlement requires the federal government to do two things: to place children with a close relative or family friend ‘without unnecessary delay,’ rather than keeping them in custody; and to keep immigrant children who are in custody in the ‘least restrictive conditions’ possible.”

Initially, the Flores settlement did not take into account accompanied children because it was reached before the institution of family detention. “Over the past couple of decades, the principles undergirding Flores evolved into specific rules about exactly how long and under what conditions children can be held. But they generally applied only to children who had entered the US as unaccompanied minors—not those who arrived with their parents,” Vox reported.

After the restructuring of the federal government in 2003, the newly created Office of Refugee Resettlement took custody of unaccompanied immigrant minors.

The first family detention center was the T. Don Hutto facility in Taylor, Texas, in 2006, under President George W. Bush. However, the Flores settlement was used as the basis of a lawsuit challenging Hutto’s “deplorable conditions,” and Hutto stopped operating in 2009 as a family detention center, though it continues detaining women today. This left only Berks, and that remained the case for five years, until 2014 when the Obama administration responded to the Central American migrant crisis by expanding family detention. The Obama administration, like the Bush administration, defended the practice of detaining “accompanied” children, meaning detaining parents and children together in prison-like settings. Two new facilities were opened in Texas in 2014: the Karnes County Residential Center in Karnes City and the South Texas Family Residential Center in Dilley.

As Vox reported, the Ninth Circuit ruled that the Flores settlement covered not just unaccompanied children but “accompanied” ones as well, setting “a general standard” that the government couldn’t detain children for more than 20 days. It’s important to note that prior to Trump, state and federal agencies routinely challenged the settlement to detain families longer. In fact, county, state, and federal agencies have fought tirelessly to try and sidestep Flores, including attempting to license family detention centers in Texas under an emergency rule that would have eliminated minimum child safety standards applicable to all child-care facilities.

“The fight for Flores to be followed has been a long one, but what we’re seeing now is an explicit challenge to Flores and the law of the land that governs the way that children can be detained,” said Bob Libal, the executive director of the Austin, Texas-based immigrant rights organization Grassroots Leadership. “This is part of a larger attack on the legal protections vulnerable people have in the immigration system, including children, asylum seekers, and victims of domestic violence and gang violence. When it comes to challenging Flores, I think we can accurately say that [Attorney General Jeff] Sessions doesn’t care about immigrant children.”

“An Immediate and Serious Danger” to Children

Nowhere has Flores been more contentious than at Berks, where the family detention center has been allowed to operate, effectively unlicensed, in a legal gray area for two years. Berks has also been rife with violations. According to recent litigation, a father and his 3-year-old son were put in “medical isolation,” otherwise known as solitary confinement, for two weeks even after the child tested negative for tuberculosis. Berks has also denied children adequate sleep and medical care. In 2016, mothers detained at the facility launched several hunger strikes in response to former DHS secretary Jeh Johnson commenting that the average length of detainment at Berks was 20 days. Women who participated in the strike had been detained with their children between 270 and 365 days, in violation of Flores.

Berks is operated by Berks County under a contract with ICE. The Pennsylvania Department of Human Services chose not to renew its license with Berks in 2016, and the county filed an appeal over the non-renewal. Two years later, Berks continues to operate during the administrative review.

In June, 14 state representatives sent a letter to Pennsylvania Gov. Tom Wolf (D) urging him to issue an emergency removal order, which would end the facility’s ability to detain new families. Both Wolf and the Pennsylvania Department of Human Services have maintained it is not within their power to issue the order, which the representatives dispute. “In fact, Pennsylvania DHS is legally obligated to [issue an emergency removal order] when operation of a facility is likely to constitute an immediate and serious danger to the life or health of children,” according to the representatives’ letter.

“Keeping Families Together” in Detention

This is not the first time that an administration has used the threat of family separation to justify family detention. In 2015, then-DHS Secretary Jeh Johnson said new family detention facilities were built in Texas to quickly deport people and deter future migrants. But after an injunction that prohibited DHS from detaining for deterrence, the National Immigrant Justice Center said that the Obama administration began to “justify family detention as means of keeping families together, falsely implying that DHS would otherwise have no choice but to separate mothers and children.”

History is repeating itself.

In federal court last Friday night, the Trump administration argued that Judge Dana Sabraw’s court order preventing family separation gives them the legal power to keep families in detention indefinitely. The Department of Justice outlined in a court filing how it will hold migrant families in detention “during the pendency of” their immigration cases, which will either subject them to prolonged detention or the removal of their due process rights, as the administration moves to quickly process their cases.

Plans for these makeshift facilities are well underway. NPR reported that after July 4, the Department of Defense will begin building “tent encampments on two military bases in Texas to house migrant families apprehended at the border,” intended to care for an “alien family population” of up to 12,000 people. One of the military bases, Fort Bliss in El Paso, Texas, is where the Obama administration once detained migrant children.

Libal told Rewire.News that he believes it was a “primary goal” of the administration to eventually expand family detention. But families already detained in Texas prior to Trump’s “zero tolerance” policy were already being subjected to prolonged detention. The Grassroots Leadership executive director said the average length of detainment for families at Karnes is 11 months. With the Trump administration’ attacks on Flores, there is now no telling how long children and parents will be detained alongside each other.

“The Obama administration handed Trump the keys to the largest detention system in history, one that already had an outrageous infrastructure for detaining families. It set the stage for what we’re seeing today,” Libal said. “No matter the administration, what family detention does to people is horrible. It is incredibly traumatic for children. We should never forget the name of anyone who justified family detention.”