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Yesterday, the Acting Assistant Secretary of the Department of Homeland Security (DHS) Kevin McAleenan testified before the House Oversight Committee that the solution to the border challenge is ending the Flores Settlement Agreement (FSA), which prohibits detention of children for more than 20 days and, while they are detained, requires that they be treated with safety and dignity under basic standards of care. In other words, in spite of horrific reports of detention conditions, McAleenan’s solution is to scrap Flores’s critical protections and impose even more and longer detention of children and their parents with even fewer legal standards of care.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “In light of recent government, media, and independent monitor reports of overcrowding and inhumane conditions for children detained in border facilities, it’s illogical to propose more of the same. If DHS can’t appropriately care for the number of children at our borders today given the 20 day limit and minimum standards of care under Flores, how could we rationally and responsibly expect DHS to appropriately care for even more children held for indefinite periods of time? This is merely more of the same failed policy that is clearly harming children. But there is an effective, cost-efficient, and humane solution — release from detention and into effective, community based programs like the Family Case Management Program that the Trump administration terminated, but included monitoring and access to legal services and ensured 99% compliance.”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “Acting DHS Secretary McAleenan squandered an opportunity to offer humane, compassionate solutions to the horrific detention conditions of migrant children at the border. Instead he made the outrageous proposal the Flores protections be scrapped, exposing migrant children to indefinite detention in squalid conditions. Let’s face it, DHS has failed in its mission to safeguard the rights of migrant children in detention. Trashing the Flores protections will only subject more and more migrant children to horrendous conditions in DHS detention and for longer, perhaps indefinite periods of time.”
Flores Settlement Agreement Prohibits Mass and Indefinite Incarceration of Children and Requires a Minimum Standard of Care
In the 1980s, it was common to place unaccompanied children apprehended by immigration authorities in makeshift detention centers — together with unrelated adults of both sexes. There were no special accommodations for children; no educational services; and children could be held for months even if the children had relatives in the U.S. willing and able to safely care for children outside of detention. These conditions sparked litigation which resulted in the Flores Settlement Agreement (FSA) in 1997. This consent decree dramatically improved the treatment of children by setting standards of care in detention consistent with basic child welfare principles and requiring the release of children from detention “without unnecessary delay” which has been determined to be 20 days.
DHS is Detaining Children, Families and Adults in Horrific, Inhumane Conditions
Multiple recent reports from the government, media, and independent monitors have exposed horrifically inhumane conditions for children, families, and adults in border detention facilities. But this is not just a new phenomenon or just the result of the recent surge of people seeking refuge at the southwest border.
Even with the FSA, children have been mistreated in detention for years. Upon re-introduction of a bill in 2005 to protect children in detention, eight years after the FSA was developed, Senator Feinstein explained:
I first became involved in this issue in 2000 when I heard about a young 15-year old Chinese girl who stood before a U.S. immigration court facing deportation proceedings with her hands chained to her waist, like a criminal …And what did our immigration authorities do when they found her? The Immigration and Naturalization Service detained her in a juvenile jail in Portland, Oregon for eight months before her asylum hearing, and more than seven weeks after she was granted asylum. At her asylum hearing, the young girl stood before a judge, unrepresented by counsel, confused and unable to understand the proceedings against her. She could not wipe away the tears from her face because her hands were chained to her waist.
Last year, the ACLU issued a report based upon 30,000 government documents obtained through the Freedom of Information Act (FOIA) that show “a pattern of intimidation, harassment, physical abuse, refusal of medical services, and improper deportation between 2009 and 2014” in Customs and Border Protection detention facilities.
In the midst of the family separation crisis last summer, more than 200 sworn statements from detained immigrants – mothers, fathers, children – were filed in federal court describing horrific conditions in immigration detention. Many came seeking asylum only to be thrown into what most described as “dog cages” and “ice boxes” with highly unsanitary conditions where guards kicked and taunted children, guards inhumanely separated and dehumanized parents and children forced to sleep on concrete floors in over-crowded, cold cells, where adults and children used toilets in front of dozens of strangers in the middle of cells, where food and water was often limited, even for young children, and where there was limited to no access to phones.
There is a Efficient, Cost-Effective, and Humane Alternative
Contrary to statements made by DHS Acting Secretary, a report by Syracuse University’s TRAC confirmed that the vast majority of asylum seeking families, when released from detention, show up for immigration hearings. “[A]lmost six out of every seven families released from custody had shown up for their initial court hearing…For those who are represented, more than 99 percent had appeared at every hearing held.” With this data, it is clear that there is no reason to detain a family seeking asylum, especially if they have access to counsel.
Where there is concern of risk of flight, there are clear alternatives to detention that are effective and cost-efficient. According to the 2018 ICE budget justification, it costs $133.99 per day to hold an adult immigrant in detention and $319.37 for an individual in family detention, whereas ATDs only cost an average of $4.50 per day. A 2014 Government Accountability Office (GAO) study found that the ATD daily rate was less than 7% of the daily cost in detention. And these programs work to ensure compliance. ICE’s now terminated Family Case Management Program (FCMP) had compliance rates of 99% with immigration requirements such as court hearings and immigration appointments (including at least a dozen families who were ultimately deported), at a cost of only $36 per day per family.