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October 20, 2015

Family Detention: Still Happening, Still Damaging

Introduction

The U.S. government’s policy of detaining asylum-seeking families, often the subject of intense political and legal debate, is harmful to children and their parents. Furthermore, it is unnecessary.

On June 24, 2015, nearly four months ago, the Secretary of the Department of Homeland Security (DHS) Jeh Johnson announced plans to reform the Obama Administration’s family detention policies. Two months later, on August 21, 2015, the U.S. District Court for the Central District of California issued a final ruling in Flores v. Lynch, ordering the federal government to comply with a settlement agreement that sets standards for the detention and release of children in federal immigration custody. On September 18, 2015, as the government filed a notice of appeal in Flores, Secretary Johnson issued a public statement asserting that family detention is “becoming short-term in most cases” and that DHS was “transitioning” its family detention facilities into “processing centers” where individuals could be interviewed and screened “rather than detained for a prolonged period of time.” The deadline for the government to comply with Flores is October 23, 2015.

This report identifies the continuing impact of detention on families held in such facilities since the June reform announcement and the August court ruling. Despite new DHS messaging labeling family detention facilities as “processing centers,” they are still detention facilities and the families held there still suffer from the harmful effects of detention.

Since announcing its reforms in June, DHS has chosen to send many more families into detention and to put more families into “expedited removal” proceedings, rather than directly referring them into the regular removal process that would include a hearing before an immigration judge. More families are being detained despite evidence that confinement even for short periods of time still damages children. Research confirms that detention of less than two weeks is associated with negative health outcomes and potential long-term health and developmental consequences. In a July 2015 letter, the American Academy of Pediatrics told DHS Secretary Johnson: “The act of detention or incarceration itself is associated with poorer health outcomes, higher rates of psychological distress, and suicidality making the situation for already vulnerable women and children even worse.”

When President Obama proclaimed October 2015 as National Domestic Violence Awareness Month, reaffirming the U.S. commitment to “uphold[ing] the basic human right to be free from violence and abuse,” he failed to acknowledge an unfortunate hypocrisy. Many mothers and girls sent to immigration detention are fleeing domestic violence and abuse in their home countries. Yet the Obama Administration’s policies put them at risk of re-traumatization.

Family detention is not necessary to ensure compliance with immigration reporting obligations. Other tools, such as community-based programs, legal representation initiatives, and legal information orientations are more humane and cost-effective. Data show that 98 percent of mothers who have legal representation appear for their immigration court hearings. If, after an individualized assessment, DHS determines some families need appearance support, community-based programs have proven effective at ensuring appearance for immigration proceedings, while also providing essential services, including housing, mental health services, and referrals to pro bono legal counsel. The U.S. Conference of Catholic Bishops’ Migration and Refugee Service and Lutheran Immigration and Refugee Service recently piloted two small programs that provided holistic social services. They showed initial compliance rates of 96 to 97 percent.

Not only is it unnecessary to send families to immigration detention, it is also impermissible under international law to send individual refugees and migrants into automatic detention in order to send a message to deter other individuals from coming to the United States.

Speaking before Congress and members of the cabinet last month, Pope Francis called on the United States to respond to refugees and migrants in a humane and just manner, treating them as individuals instead of merely reacting to their numbers. Moreover, as the American Bar Association pointed out in a July 2015 report, DHS must be able to anticipate and address fluctuations in migration patterns and to do so through fair implementation of plans that use tools other than detention, excessive supervision requirements, and expedited deportation proceedings that undermine due process.

Overall apprehensions of unaccompanied children and families are down by approximately 46 and 48 percent, respectively, compared to fiscal year 2014, according to statistics released by the Department of Homeland Security. Any increases or fluctuations in migrants and asylum seekers requesting protection at the southern border, whether the increases are characterized as a “surge” or uptick like that reported for the month of August, can be managed with the use of rights-respecting rather than rights-violating tools.

The bottom line is that the United States is more than capable of handling variances in refugee and migration patterns by engaging in proper planning rather than resorting to policies that undermine U.S. human rights commitments, due process, and access to counsel. 

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