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Week 33: Administration tries to implement ‘binary choice’ family separation
Immigration news, in context.
This is the thirty-third 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 look at the “binary choice” between family separation and indefinite incarceration that advocates say was given to families in ICE detention.
In Under the Radar, we examine how ICE is continuing to transfer detainees among different centers, even as the number of COVID-19 among its detainee population keeps rising.
In Next Destination, we discuss the implications of the extended border shutdown and the future of USCIS, which is nearing insolvency.
The Big Picture
The news: ICE asked about 350 families with minor children in its three family residential centers (FRCs) to determine whether they wanted children to be released alone to sponsors, or remain detained together with their parents, prompting comparisons to the 2018 family separation policy.
Starting around last Friday evening, attorneys began sounding the alarm that ICE personnel were interviewing dozens of asylum-seeking migrants in the three facilities — Berks Family Residential Center in Pennsylvania, and Karnes Residential Center and South Texas Family Residential Center in Texas — asking them to fill out a form supposedly meant to facilitate the release of children in custody.
The form never explicitly mentions that it can form the basis for a separation, but this was apparently what was conveyed to parents. Ultimately, it appears that all refused to sign the documents. In a subsequent court filing, an ICE official submitted a document containing the reasons that various minors were not released, and wrote “parent does not wish to separate” as the primary reason for a number of them, driving home the point that this was indeed the objective of this initiative.
As with the infamous “zero tolerance” family separation policy of 2018 — far and away the most widely notorious of the Trump administration’s immigration actions — the end result here would be a separation between a child and their parents. The mechanics, however, are entirely different.
In 2018, the administration achieved this goal through criminal prosecution. Crossing the border without authorization is technically a minor federal crime, but asylum seekers, and in particular those with children, are rarely prosecuted. The policy shift led to almost all of them being prosecuted, and a consequence was the separation of children from their parents, who could not retain custody while in federal criminal detention. This family separation was never laid out as an “official” part of the policy, though it was clear then and it became clearer over time that the idea was deterring migration through a brutal outcome.
This was one of the administration’s only immigration policy items terminated in response to widespread public backlash as opposed to litigation (though it never went away completely.) Nonetheless, some hardliners, notably Stephen Miller (surprise) thought that the concept was a success and wanted it reimplemented. This new effort in family detention centers is such an attempt. Rather than using prosecution, the administration has cleverly figured out a way to use a federal court order meant to protect minors in U.S. government custody as a lever to try to force separations.
This order is part of the Flores litigation, which has been ongoing for about 35 years and has resulted in the Flores settlement agreement, the backbone of the federal government’s scheme of legal responsibilities with regards to noncitizen minors in its custody. We’ve written about Flores at length before, mostly as it relates to the use of shelters for unaccompanied migrant children, but the relevant bit here is a requirement to release minors to licensed state facilities in programs overseen by the Department of Health and Human Services’ Office of Refugee Resettlement “as expeditiously as possible,” which has been interpreted as a maximum of 20 days in custody.
U.S. District Court Judge Dolly Gee, who’s overseen the Flores litigation since its inception, recently found that the government was not in compliance and ordered it to expedite releases ahead of a May 15 deadline, in part due to the threat of the coronavirus pandemic. ICE is now claiming that the forms and the questioning are an effort to comply with the order, by giving parents the “option” to have their children expeditiously released. Of course, nothing in the order nor the broader settlement can be construed as preventing the release of parents and children together. However, ICE is apparently taking the refusal to have children released alone as altogether waiving the court-ordered directive for children to be released at all.
The effort to have minors released to an outside sponsor is also hardly consistent with the Flores framework writ large. In fact, the settlement specifies that the primary preference guardian for children to be released to is a parent, and yet this represents an effort to take children away from parents — all of whom are themselves completely releasable — and place them with someone else.
How we got here
In a statement released Thursday, ICE denied that it instituted a “new” policy, claiming it was simply letting families exercise their “court-ordered option” to have their children released to a sponsor.
The Flores settlement agreement, which the order is based on, is a decades-old court settlement that outlines how the government must treat migrant children in its custody. The settlement came after a years-long legal battle 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 was the precursor to many of the component agencies within the Department of Homeland Security, including ICE. When Congress created DHS in 2003, the INS was dismantled and replaced with the immigration agencies we have today.) After a series of decisions and appeals, a federal judge in California ordered a consent decree in 1997, which is in place to this day.
Flores applied to “all minors who are detained in the legal custody of the INS” and continues to apply to children detained in a variety of federal facilities: shelters for unaccompanied minors operated by the Office of Refugee Resettlement and border processing stations operated by Customs and Border Protection. Initially, it was only interpreted as applying to unaccompanied children, not those who crossed the border with their families.
In 2015, Judge Dolly Gee, the federal judge who oversees the ongoing court settlement, ruled that Flores applied to family residential facilities. The Obama administration had been detaining entire families — children and parents — in these centers indefinitely. Gee’s order attempted to put an end to that, putting a limit on how long accompanied children could be detained as well. In her order, Gee said ICE should release parents with their children in cases where the parent wasn’t a flight risk or a danger to public safety.
The Trump administration, however, has repeatedly suggested that all asylum seeking families are a flight risk and has referred to Flores as a “loophole” that must be eradicated. Last year, then-DHS acting chief Kevin McAleenan told Congress that the many of the migrant families at the border were fraudsters posing as family units in order to be let into the United States; he suggested that smugglers regularly “recycled” migrant children, renting them out to migrant after migrant so they could enter the U.S. under false pretenses. He also said that once allowed into the United States, roughly 90 percent of asylum seekers released from ICE custody fail to show up to their hearings.
The data say otherwise. According to data analyzed by the American Immigration Council, 86 percent of families released from ICE detention centers showed up to court between 2001 and 2016; 83 percent of all immigrants in removal proceedings between 2008 and 2019 did so as well. Appearance rates were even higher for families with attorneys. McAleenan’s statistics, meanwhile, relied on data gleaned from a single expedited docket introduced in 2018 that, as the American Immigration wrote, was “intended to discourage Central American families from coming to the United States by quickly deporting those already here.”
Even if it’s not true, the administration’s suggestion that asylum seeking families don’t show up for hearings serves as a justification for keeping them indefinitely detained. In a filing submitted in court last week, ICE listed the justification for its denial of parole to virtually every family in its custody. Under “Parole Denial Reason #1,” the explanation was “Parent Does Not wish to Separate.” Under “Parole Denial Reason #2,” the reason listed was “Flight Risk.”
The administration has used the flight risk excuse to justify a number of its immigration policies, from keeping families detained indefinitely to the Migrant Protection Protocols, more commonly known as the Remain in Mexico policy. The justification for the MPP was that since families were lying about their asylum claims to gain entry into the U.S., only those with genuine fear of returning to their home countries would show up to court. But most families on the MPP docket do show up to court, despite nearly insurmountable odds. When they don’t, it’s often because of faulty paperwork or, in some cases, because they’ve been kidnapped.
In response to reporting on the matter, ICE put out a statement saying the framing was incorrect and that the form had been prepared years ago in order to comply with Flores. It noted that “the court recognized that ICE need not release juvenile aliens whose parents waive their court-ordered option to be released to a sponsor.” It is technically accurate that the court has recognized that the right for a child to be expeditiously released from restrictive ICE custody can be waived by a parent; however, the framing of the “court-ordered option” here is odd.
The release stipulations were never meant to be an option, they are a right that exists unless affirmatively waived. Judge Gee ordered the government to find a way to release the minors in its custody, not to present their parents with the choice of having being separated versus staying together in detention. While parole can be denied based on factors like “flight risk,” there’s nothing in the statutory or regulatory sphere that suggests it can be denied based on a refusal to give up custody of your children.
Further, there’s the question of duress. In its statement, ICE said the form is “not a legally binding document and does not convey any legal implications on the family unit.” As far as we know, no one signed it, so we don’t know the extent to which ICE actually would consider it binding, but it’s probable they’d have a different view if a family did accept the terms and then refused to be separated. If this were ever to occur, a very strong argument could be made that these declarations were coerced, particularly in the context of the encroaching pandemic.
In the past, federal judges have ordered ICE to, for example, stop coercing detainees into signing deportation orders with harassment and arbitrary punishment. There is hardly a more intimidating threat than the prospect of losing custody of your children, and Judge Gee has in the past seemed receptive to arguments that the government was distorting her orders for its own purposes.
Under the Radar
ICE continues transferring detainees despite pandemic
After a federal judge in Florida ordered ICE to reduce the detainee population at the Krome Detention Center in south Florida, the agency transferred 33 detainees from Krome to a facility in Broward County, the Miami Herald reports. The Broward Transitional Center, operated by the private prison company GEO Group, had 19 positive cases on Monday, up from 3 cases just three days earlier. An anonymous GEO Group Employee told the Herald that 16 of the people transferred from Krome tested positive after being transferred to the Broward facility.
The Florida transfers aren’t an isolated case. In March, ProPublica reported that ICE transferred a detainee, a 59-year-old Iranian man with a history of lung infections and pneumonia, nine times in a 10-day span. Even as the pandemic halted international and domestic travel, ICE continued shuffling detained immigrants from facility to facility.
The transfers are of particular importance given the recent legal challenges urging ICE to release detainees to slow the spread of coronavirus in its detention centers. In California, for example, a judge ruled ICE has to dramatically reduce the detained population at the Adelanto ICE Processing Center in the state, where around 1,300 people were detained at the time. The agency was required to do 3 things:
release certain detainees, prioritizing those who are over the age of 55, those with preexisting medical or mental health conditions that make them particularly susceptible to Covid-19 complications, those without criminal records, and those with minor criminal convictions, in that order
deport those who have been issued final orders of removal and have exhausted all appeals for relief
transfer those who don’t meet the above criteria to detention facilities where they can maintain social distancing
In Florida, where a judge also ordered ICE to reduce the detained population, the agency has opted to transfer people rather than release them. When given the choice between release and detention somewhere else, it’s clear that ICE will almost always prefer detention, even if it means keeping people in dangerous conditions and accelerating the spread of the virus.
Trump administration indefinitely extends border shutdown
This week, the Centers for Disease Control & Prevention indefinitely extended the restrictions allowing the administration to turn away virtually all asylum seekers, claiming the emergency border shutdown needed to continue until the virus was fully under control. The order, which was renewed in April until May 20, will remain in place “until the CDC Director determines that the danger of further introduction of COVID-19 into the United States...has ceased to be a serious danger to the public health.”
As we wrote last week, this was virtually guaranteed to happen, even as the president continues to downplay the threat of the virus and encourages states to reopen.
To recap, the government is utilizing an obscure provision of law — 42 U.S.C. § 264 — that permits the CDC to suspend the admission of people who it deems might spread infectious disease (we covered it in more detail here). The CDC order issued under this law essentially prohibits the entry of people who aren’t U.S. citizens or residents and don’t otherwise have visas, waivers, or other travel documents. It has been devastating for asylum seekers, who have been turned away by the thousands. Since March 12, only 59 people had even gotten to the stage of being interviewed by USCIS agents for an evaluation under the Convention Against Torture, the Washington Post reported last week. Most of them didn’t pass those interviews.
Given that the order is now in effect indefinitely, there’s nothing stopping the administration from keeping it in place through the end of the year. The CDC is required to “review” it every 30 days to consider re-opening the border, but given that 42 U.S.C. § 264 lets the government shut down the border to reduce the introduction or spread of infectious disease, the administration has broad latitude to argue that it’s doing just that regardless of what actually happens. If the number of cases in the U.S. decreases, the administration could say re-opening the border could cause a spike; if the number increases, they could argue that it’s too soon to think about processing migrants.
Of course, it’s possible that the order may be challenged in court, though it hasn’t been yet. It plainly conflicts with other parts of domestic law, and the government hasn’t really justified these conflicts yet.
USCIS is running out of funds
Unlike the vast majority of other federal government agencies, the U.S. Citizenship and Immigration Services — the agency that among other things handles applications for visas, residency, and citizenship — is almost entirely fee-funded. This means that it derives most of its operating budget not from congressional appropriations but from the fees that applicants themselves pay in order to receive services from the agency.
With most of the legal immigration framework grinding to a halt amid the pandemic, including the closure of in-person services at USCIS offices nationwide, the volume of applications and other services are way down, and the agency has seen the majority of its funding stream completely evaporate. According to BuzzFeed News, the agency is nearly insolvent, and will run out of funds this summer in the absence of congressional intervention.
A source within the agency told reporter Hamed Aleaziz that USCIS’s funding woes were years in the making. Though the pandemic accelerated the problem, “you can't run an agency dependent on applications being filed when you have policies that are trying to make it harder for people to file or get approved,” the source said. Under Trump, many aspects of the legal immigration system slowed considerably even before the pandemic.
It’s not clear what the agency running out of funds would mean. Presumably, it may have to cease its standard operations, putting millions of applicants in limbo as immigration and visa processes are halted.