Trump Administration Seeks to Jail Immigrant Children and Families Indefinitely

By Elisa Minoff, 

Last Friday, the Trump administration laid the groundwork for the indefinite detention of immigrant children and families. The proposed regulations, issued by the Department of Homeland Security and the Department of Health and Human Services, would end the longstanding Flores settlement agreementFlores was the result of a legal challenge brought by 15 year-old Jenny Lissette Flores and other children against the conditions they experienced in immigration detention in the 1980s. Under Flores, the federal government is required to maintain minimum protections for children in immigration detention and proceedings—such as placing them in the least restrictive settings possible and providing basic necessities like food, water, and access to medical care. The administration claims that the new regulations to end Flores are necessary in order to avoid the separation of families—the inverse of the claim they made this summer when they decided to separate almost 3,000 children from their parents. Five hundred of these children still await reunification. Far from being necessary, these regulations are a step toward realizing the administration’s racist and anti-Latinx immigration agenda. As Department of Homeland Security (DHS) Secretary Kirstjen Nielsen freely admits, a goal of the regulations is to deter the immigration of families from Central America—many of whom have legal claims to asylum.

Immigration detention and incarceration is harmful to children’s health and well-being. Studies of detained immigrant children have found high rates of posttraumatic stress disorder, depression, and anxiety, and psychologists agree that “even brief detention can cause psychological trauma and induce long-term mental health risks for children.” Dr. Luis Zayas, Dean of the School of Social Work at the University of Texas at Austin and an expert on child and adolescent mental health, interviewed families in immigration detention facilities and found “regressions in children’s behavior; suicidal ideation in teenagers; nightmares and night terrors; and pathological levels of depression, anxiety, hopelessness, and despair.” The Department of Homeland Security’s own Advisory Committee on Family Residential Centers concluded that “detention is generally neither appropriate nor necessary for families—and that detention or the separation of families for purposes of immigration enforcement or management are never in the best interest of children.”

The proposed regulations, if finalized, would result in more children and families being detained for longer periods, flying in the face of this consensus of expert opinion. Currently, because the federal government does not have family detention facilities that comply with the minimum standards and licensing requirements dictated by Flores, children must generally be released within 20 days. The proposed rule would allow the federal government to self-license its own detention facilities, allowing for the massive expansion of family detention. There are now approximately 3,000 beds in family detention centers. The Trump administration has begun to identify sites to build detention centers to accommodate 12,000 more.

The regulations also weaken protections for children and families in these new detention facilities. According to the proposed regulations, compliance with their provisions may be delayed or excused on a temporary basis in the case of an “emergency.” The definition of emergency is broad, and the protections that could be withheld include meals and medical assistance. It would be up to an auditor of the agency’s own choosing to determine whether the facilities were providing the protections required. Given that the Office of Inspector General recently found that DHS fails to ensure compliance with detention standards in its adult detention facilities, this move to self-regulate family detention facilities is very concerning.

Finally, even as the administration justifies family incarceration as an improvement over family separation, the regulations open the door to family separation in the future. In the proposed regulations, Customs and Border Patrol is instructed to provide “contact” between children and accompanying family members, but only when it is “operationally feasible” and “does not place an undue burden on agency operations.” As a result, children may well be routinely separated from relatives, compounding the trauma they have already experienced in their home countries, on their journey, and in United States custody.

Neither family separation nor family detention is the answer to the immigration of families seeking refuge from violence and political instability. A number of alternatives to detention, from active case management to the use of GPS monitoring devices, have proven to be effective at ensuring compliance with immigration check-ins and hearings, to be less costly than detention, and to be more humane.

The administration’s proposed regulations are a move in the wrong direction.

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Elisa Minoff is a Policy Analyst at CSSP.