The End of Family Detention?

The past few months have been a whirlwind for immigrant-rights activists working to end government detention of families at the border.

In July, Judge Dolly Gee of the Federal District Court for the Central District of California ruled that the Obama administration’s blanket policy of detaining all female-headed immigrant families, including children, who are caught at the border, violated a 1997 settlement agreement. The agreement, which resulted from the class action lawsuit Flores v. Reno, stressed a general policy favoring release of minors from immigration detention. When release is not possible, the Flores agreement required that minors be housed in facilities licensed by the state to hold children. In her opinion, Judge Gee determined that the agreement encompassed accompanied youth, meaning the government could be forced to also release mothers with their children. Furthermore, she found the administration’s “no release” policy to be a material breach of the agreement, and denied the government’s request to amend the settlement agreement. In a subsequent hearing to determine how to bring the government back into compliance with the agreement, Judge Gee rejected the government’s fear that ending its policy of family detention could lead to a spike in unlawful immigration. Instead, Judge Gee ordered the government to release detained youth “without delay” and to ensure youth are not detained in unlicensed facilities. The government was required to comply with the order by October 23.

In the wake of the decision, there has been a flurry of activity in courts across the country. While the government filed an appeal of the decision last month, it did not file a stay, meaning that The Department of Homeland Security (DHS) had to show compliance by the deadline. With over a thousand families being housed in three family detention centers, two of which were not state-licensed, DHS faced a daunting task. In response, the Texas Department of Family Protective Services issued an emergency rule allowing the two unlicensed Texas detention facilities, Karnes County Residential Center and the South Texas Family Residential Center, to be licensed as child care facilities. In return, immigrant-rights activists have filed a lawsuit to challenge Texas DFPS’s emergency rule, alleging the department misused emergency procedures to avoid the normal notice and comment process. Meanwhile, DHS tried moving a number of families to the only state-licensed facility, the Berks County Residential Center in Pennsylvania. In response, the state of Pennsylvania has threatened to revoke the facility’s license, alleging that it “is no longer operating as the type of facility for which it was originally and continues to be licensed,” namely as a child detention facility, not a family detention facility. If the state follows through on its threat, that could spell trouble for DHS.

While immigrant-rights activists claimed there was “no way” the government could be in compliance with the agreement by October 23, DHS assured the public that it was working to turn the detention facilities into short term “processing centers.” However, even as the Department looks to release formerly detained families, it has come under attack for coercing mothers into wearing ankle bracelets as a term of their release.

With all this excitement leading up to the date of compliance, October 23 came and went without much concern. The government did not file any evidence of compliance and stated that it did not plan to do so. While the government insists it has now eliminated long-term facilities, many immigrant-rights activists claim they are still not in compliance. This will likely lead both parties back to the courthouse.

With the state of family immigrant detention still up in the air, the future of immigration reform is similarly uncertain. Many presidential candidates, especially from the GOP, have argued for more stringent enforcement measures. However, whether or not the government can continue detaining immigrant families at the border will affect how that enforcement will look. Furthermore, the decision will also affect government contracts with detention facilities; as of today, it appears that the government is stuck in contracts to build more of these facilities, which it may not be able to fill. In response to the difficult position DHS now finds itself in, Judge Gee simply wrote that it was “astonishing that the [government has] enacted a policy requiring such expensive infrastructure without more evidence that it would be compliant with an agreement that has been in effect for nearly 20 years.”

While Judge Gee’s original order has been lauded as a huge step forward for immigrant rights, whether or not it will ultimately be remembered as the decision that ended family detention is still to be determined.

Written by

Lauren is a 2L at HLS. She is originally from Pittsburgh, PA, and graduated from Harvard College in 2014. She is interested in the intersection of criminal justice and immigrant and refugee rights. Last summer, she worked in Austin, TX doing employment law for low-income and immigrant workers. At HLS, Lauren is in the Immigration Clinic, and is a member of the Harvard Defenders and the Prison Legal Assistance Project.

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