Biden expanding child influx shelters, moving to terminate family detention—02-26-21

Immigration news, in context

This is the sixty-ninth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we examine the Biden administration’s reopening of two influx shelters for unaccompanied migrant children.

  • In Under the Radar, we dig into the end of Trump’s ban on immigrant visas.

  • In Next Destination, we discuss the end of long-term family detention.

The Big Picture

The news: The Biden administration is moving to reopen influx shelters to expand its unaccompanied child detention capacity while reportedly ending the practice of long-term family detention as it continues to reevaluate its border and asylum policy.

What’s happening?

Before we get into the meat of things, let’s acknowledge that there’s been a lot of confusion and discussion as to what child detention really means, and whether something is termed a “shelter” versus a “cage” or “baby jail” is a semantic or practical distinction. While pretty much every form of government custody of unaccompanied migrant minors has had serious issues and suffered from lack of oversight, there are absolutely different types of detention, with different types of conditions and accountability concerns. It’s wrong to claim otherwise,, and, in what may be a sort of unofficial BORDER/LINES motto, you can’t actually fix a problem that you’re unable to name or describe. With that in mind, here is a glossary of the types of custody that unaccompanied minors can end up in:

Border Patrol custody: Almost every minor who crosses the border or presents at a port of entry will first pass through the custody of U.S. Border Patrol, as this tends to be the first point of contact. Border Patrol is part of Customs and Border Protection, a Homeland Security agency, and receives relatively little training on handling minors in custody (despite the fact that the number of asylum-seeking minors arriving at the border has exploded in the past seven years). The agency has detention centers that are meant to be temporary, more akin to holding cells and often lacking in basic sanitation. Some, known colloquially as “hieleras,” or iceboxes, are known to be permanently freezing, with migrants only given mylar blankets to keep warm.

As we’ve noted before, 8 U.S.C. § 1232(b)(3) states that “[e]xcept in the case of exceptional circumstances, any department or agency... that has an unaccompanied alien child in custody shall transfer the custody of such child to… Health and Human Services not later than 72 hours after determining that such child is an unaccompanied alien child.” In theory, this means unaccompanied minors should spend fewer than 72 hours in these facilities, though this “exceptional circumstances” provision is frequently leaned on as a means of noncompliance, and many children spend far longer in these supposedly short-term facilities.

ICE transfer and removal custody: The transfer of custody referenced in the statute above falls to Immigration and Customs Enforcement, another Homeland Security agency. It is ICE’s responsibility to ensure that minors get from DHS to HHS custody, theoretically still within the timeframe allotted by the law. As our colleague Aura Bogado has extensively documented, ICE often doesn’t actually do this itself, but contracts it out to security firms that may not have any particular experience or licensing for transporting children. The most notorious among these is MVM, which has signed contracts worth over $160 million to transport children, and has been found to house them in unsuitable locations including an empty office building and private hotels.

ICE is also the agency that conducts removals of minors. These are typically deportations or voluntary departures, though following the enactment of the CDC Title 42 order, a supposed pandemic-response measure, most minors were quickly expelled without further due process. This led to situations where unaccompanied children never left Border Patrol and ICE custody at all, but were held in hotels or other facilities until they were processed for expulsion, never entering the more protected HHS systems. A federal judge late last year stopped the Trump administration from expelling minors alone; the order was subsequently lifted by a Circuit panel, but the new Biden administration has announced it will not expel unaccompanied children, meaning they are now processed as they were before.

ORR licensed, long-term shelters: The Office of Refugee Resettlement is part of Health and Human Services, and is where unaccompanied minors who are in government custody longer than 72 hours are supposed to end up. ORR oversees and funds a nationwide web of shelter facilities which must be state-licensed (that is, by the state where they’re based, e.g. New York) and meet a series of ORR criteria. Many of these shelters are run by nonprofit providers, which can serve both migrant children in federal custody and local children in state shelter custody. For this reason, the sites tend not to be clustered around the border, as one might assume, but spread throughout the country and concentrated in states that already have robust shelter systems, like Illinois and New York.

The licensed shelters themselves have sub-categories. There are “regular” residential care facilities, which are supposed to be as least restrictive as possible, and where technically children shouldn’t even be stopped from leaving, though they are and their ability to interact with one another remains very limited. Then there are more restrictive settings like staff secure, which are supposed to deal with “disruptive behavior” and feature greater monitoring and supervision; and secure, which ostensibly targets “violent behavior” and which is closer to juvenile detention. There are also therapeutic variations meant to deal with trauma or other issues.

All of these are still required to provide children with mental health services, access to legal services, and education, though this is often lacking, in part because the system isn’t envisioned for long-term stays, either. It’s intended to function as a temporary solution while the government finds U.S.-based sponsors to release minors to. As a result, education programs can run on short loops, with the expectation that children will have left by the time it restarts. In practice, as Bogado has found, children can languish in ORR shelters for years. These state-licensed facilities are indisputably more suitable for children than Border Patrol custody, but have had their own litany of issues, including persistent sexual abuse and lack of proper medical care.

Foster care: Per the Flores settlement agreement (more on that later), minors are supposed to be released to sponsors, with a preference towards parents, legal guardians, and adult relatives. If none of this can be secured, children may be released to foster programs and families. ORR can then facilitate a foster family’s adoption of these children if it determines that other guardians can’t be found, though these searches are hardly exhaustive in all cases.

ORR “emergency” influx shelters: Like the state-licensed shelters, these are ORR-overseen shelters. Unlike the previous, they are not similarly licensed and are intended to be temporary solutions to growing volumes of arrivals that overwhelm the capacity of the standard shelter system. Their genesis came during the Obama administration, as it faced larger-than-expected numbers of unaccompanied child arrivals in 2014. The Flores agreement includes specific provisions for situations in which the government is facing “influx” conditions, which permit it to set aside some of its requirements.

It’s these types of facilities that the Biden administration is moving to open, and which have caused a great deal of commotion among activists and commentators. As we break down below, these facilities have had spotty records. The government is claiming that the expansion of influx capacity is necessary because of increasing arrivals of unaccompanied minors and the coronavirus pandemic severely limiting capacity at standard shelters. This is also due to the fact that it has decided to exempt these minors from the Title 42 order that it’s kept in place, so while adults and families of asylum seekers are still being expelled without due process, unaccompanied minors are going through the regular chain of custody.

It’s worth noting here that many “unaccompanied” children don’t start off this way. Most infamously, the Trump administration’s 2018 zero-tolerance policy forced the separation of thousands of children from their parents, rendering them legally unaccompanied. Since that policy was rescinded, separations have continued in a more limited format, typically either when border agents determinant that guardians are unsuitable to have custody (such as if they have a criminal record); or when the guardians aren’t the children’s direct legal guardians, for example aunts and uncles or family friends.

When families are not separated, they are often held in a handful of specialized detention centers known as Family Residential Centers, which also date back to the Obama administration. Unlike the ORR shelters, these facilities are run by ICE and are immigration detention; given that the minors in them are not unaccompanied, there is no requirement to transfer them to Health and Human Services custody. Still, even accompanied minors remain subject to the Flores agreement, meaning they should only be held for a maximum of 20 days. In actuality, families are often held for far longer, even over a year, again in conditions that are hardly habitable for any period of time.

The San Antonio Express-News is now reporting that two FRCs, in Karnes and Dilley, Texas, will stop being used to detain families and instead be used exclusively to screen families for Covid-19 infection and arrange for their shelter and transportation. It’s not yet clear when these steps will be taken, but it signals that the administration is intending to stop detaining families together and return to the posture of releasing them to await their asylum cases out of detention.

How we got here

Biden is reopening two facilities—one in Carrizo Springs, Texas and another in Homestead, Florida—that were used under the Trump administration. Both are “temporary influx shelters,” meaning they aren’t licensed childcare facilities. 

Carrizo Springs opened in the summer of 2019 and is operated by BCFS Health and Human Services, a nonprofit that operates several other facilities for migrant children. The shelter is located in a small, rural community two hours south of San Antonio; it was originally a “man camp” for oil workers before being converted into a dormitory-style shelter under Trump. It closed just a few months after its grand opening.

Homestead, located in south Florida, opened in 2016 under the Obama administration and was shut down less than a year later. The Trump administration reopened Homestead in 2018, and the facility reopened under the purview of Comprehensive Health Services Inc., a subsidiary of Caliburn International—the first for-profit company to run a facility for migrant children. Homestead was plagued with allegations of abuse, neglect, and mistreatment under both administrations. At least seven children reported being sexually mistreated at Homestead between 2016 and 2019.

Under Trump, the two influx shelters were opened for different reasons. Homestead opened in advance of the 2018 “zero-tolerance” policy of prosecuting adults for illegal entry at the border, which served as the legal justification for family separation. Carrizo Springs opened a year later—after family separation had been formally ended, though the practice did continue in some instances—to address a “backlog” in the shelter system. 

In the summer of 2019, reports began emerging of children and babies being held in CBP custody for days or even weeks. This was a clear violation of the Flores settlement agreement, a 1997 court order that dictates how the government must treat government children in its custody. The law was interpreted as requiring that children can’t be kept in CBP custody for more than 72 hours. After that point, they’re supposed to be transferred to a licensed ORR shelter, and the government is supposed to reunite them with their sponsors—usually relatives already living in the U.S.—as quickly as possible.

In terms of placement, Flores establishes an order of preference as follows: 

  1. a parent

  2. a legal guardian

  3. an adult relative

  4. an adult individual or entity designated by the child’s parent or legal guardian

  5. a licensed program willing to accept legal custody

  6. an adult or entity approved by ORR. 

The Flores settlement resulted from a class-action lawsuit regarding the detention of unaccompanied migrant children that began in 1985, when Jenny Lisette Flores, a 15-year-old Salvadoran immigrant, filed a class-action lawsuit after being held in an adult detention facility by the Immigration and Naturalization Service. (INS predated DHS and its component agencies.) After years of decisions and appeals, a federal judge in California issued a consent decree in 1997, which remains in place and has been expanded in the years thereafter. Under Flores, unaccompanied migrant children are supposed to be kept in “the least restrictive setting” possible. Typically, this means children who arrive at the border without their parents are sent to one of more than 170 state-licensed shelters in ORR’s network. These shelters also have their fair share of issues. A 2018 class-action lawsuit alleged that children in ORR custody were given psychotropic drugs without their consent. Aura Bogado, a reporter at Reveal, has reported on a litany of problems with ORR’s shelter system, including in an instance where a girl was held in government custody for seven years.

In the summer of 2019, the Trump administration claimed that ORR shelters were at or near capacity due to a surge in arrivals of unaccompanied children, resulting in a backlog at the border and requiring it to open new, unlicensed influx shelters like Carrizo Springs.  In reality, kids were being held at the border longer because the government was keeping children in ORR custody for longer than ever before. In November 2018, the average length of stay in an ORR shelter was 90 days. 

Under Trump, ORR began requiring all adults who live in a prospective sponsor’s home to submit fingerprints and other biometric information to the government. (That requirement was later amended so only the child’s sponsor had to submit biometric information to the government.) ORR then shared that information with DHS, which resulted in around 330 immigration arrests from April 2018 to June 2019. (A $4.6 billion emergency spending bill officially barred ORR from sharing sponsors’ information with DHS.) Together, the expanded fingerprinting requirement and information-sharing agreement lengthened the reunification process while simultaneously having a chilling effect on sponsors, many of whom are undocumented and feared that coming forward would lead to their deportation. 

The Flores regulations also apply to children in ICE family detention centers. There are three such facilities: the Berks Family Residential Center in Pennsylvania, the Karnes Residential Center in Texas, and the South Texas Family Residential Center. The Obama administration expanded the use of family detention in 2014 amid an increase in arrivals at the border—and in order to deter more migrant families from coming to the U.S.

What’s next?

There are obvious concerns with the notion of reopening unlicensed facilities that had severe deficiencies in the care of unaccompanied minors. This is a system that suffers from a pervasive lack of oversight, which is often slow to detect and act on abuses. It’s not entirely clear yet which contractors the government will use to operate these centers, and it hasn’t announced any additional oversight measures to be put in place.

There aren’t straightforward solutions here; many people balk at any type of government custody for unaccompanied minors, but the government also can’t release children alone into the interior of the country or release them to unvetted individuals. While it’s relatively rare, there have been instances of minors being used by sponsors for labor. The administration also claims, correctly, that these facilities will have better conditions than Border Patrol ones, and that it can’t instantly build up its licensed, permanent shelter capacity.

Still, advocates are frustrated that the administration doesn’t simply prioritize and streamline its process for finding suitable sponsors. In the case of the girl who’d been in HHS custody for seven years, for example, family members were ready, willing, and waiting in the United States. The government simply failed to arrange for her release. For minors who were left unaccompanied by separation from an unofficial guardian, it should be very easy to release them to this guardian. Even those who arrive unaccompanied in most cases have family in the United States.

Without concrete guidelines in place, assurances that minors will be treated suitably and held only for short periods are empty promises. The same goes for the supposed closure of family residential centers. Even under the current policy, they were never meant to hold families for long periods of time, so pledges that they really won’t this time should be taken with a grain of salt. It isn’t immediately clear if the Berks center in Pennsylvania will follow the same new policy.

For the time being, it should be relatively simple for the government to quickly process families because, again, most families are still being expelled under the Title 42 order without any process. There are only small numbers of families being let into the country, including those in the MPP program. If and when the order is rescinded, and families can generally apply for asylum again, that will be the real test of the administration’s commitment to ending or limiting family detention.

Under the Radar

Asylum seekers on the MPP docket let into the U.S.

Earlier this month, the Biden administration reportedly began implementing a system to let asylum seekers in the “Remain in Mexico” program enter the U.S. As a reminder, the Trump administration introduced that program, officially called the Migrant Protection Protocols, in January 2019. It required some asylum seekers from Spanish-speaking countries to wait in Mexico while their cases were processed by U.S. immigration courts. (For more on MPP, we encourage you to read a previous edition of the newsletter where we covered it in depth.)

This week, a small group of two dozen asylum seekers was paroled into the U.S. at the Juarez-El Paso port of entry. Another group was processed in San Diego. There are approximately 25,000 migrants waiting in Mexico under the program.

Next Destination

Biden ends Trump-era visa ban

Biden rescinded Trump’s proclamation banning immigrant visas, which was issued last spring. The visa ban was not related to public health; Trump issued it to mitigate the “risk to the U.S. labor market” posed by immigration amid the pandemic.

The State Department says it will reconsider applications that were denied because of the proclamation and will allow for immediate entry of anyone who received a diversity visa in 2020. 

However, geographic restrictions for entry are still in place. Anyone who has been in China, Iran, the United Kingdom, Ireland, Brazil, South Africa, or any country in the Schengen Area in the 14-day period before trying to enter the U.S. will still be denied entry. There are some exceptions to this, including immigrant visa applicants who are the spouses or children of U.S. citizens or legal permanent residents.