With only hours remaining before a court-mandated deadline requires the federal government to reunite thousands of children separated from their immigrant families, the Trump administration has assured Americans that it has all intentions of meeting that deadline.
“We’re on track” to complete more than 1,500 reunifications for all ‘suitable’ families within the next two days, Homeland Security Secretary Kirstjen Nielsen told Fox News on Tuesday. “We’re working hand and glove with [the Department of Health and Human Services], and it’s certainly our intention.”
But for the hundreds of children on track to be reunited with their families on American soil—out of an estimated 2,551 minors between the ages of five and 17 who the government believes may be covered by the court order—the condition of the detention centers where they could be held with their families upon reunification is the newest uncertainty of their incarceration. For starters, the facilities may not even be required to be licensed.
Congressional Republicans have quietly introduced a provision into H.R. 6470—an appropriations bill introduced on Tuesday for the Departments of Education, Health and Human Services, and Labor—that would eliminate such requirements for immigration detention facilities used to detain children and families. The resolution could remove vital safeguards protecting standards of care for migrant children currently held in state- and county-operated detention facilities, including in three ICE-contracted family detention centers currently running without a state license.
The result could create “an illegal black hole” where abuse and poor conditions inside detention centers would flourish, attorney David Bennion, executive director of the Free Migration Project, told The Daily Beast. “You’ll be taking away the only regulatory agency that is putatively engaged on the issue.
“The government has never gone and gotten those facilities licensed,” said Jennifer Podkul, an international human rights lawyer and director of policy at Kids in Need of Defense, an organization that works on behalf of children who enter the immigration system alone. “It speaks to the difficulty of appropriate family detention. Facilities that are intended to hold both adults and children are very logistically complex.”
“That’s why it’s so problematic,” Podkul continued, “which is why the government shouldn’t be in the business of family detention in the first place.”
The text in the appropriations measure, which stipulates that “no State may require that an immigration detention facility used to detain children who have not attained 18 years of age, or families consisting of one or more of such children and the parents or legal guardians ... be licensed by the State or any political subdivision thereof,” is copy-pasted from language in a failed resolution amending a bill on human trafficking submitted by Rep. Stephen King (R-CA).
The provision is an apparent attempt to undercut Flores v. Reno, a 1997 federal court decision limiting the government’s ability to keep immigrant children in indefinite detention, setting the standard that unaccompanied immigrant children—and, a federal appellate court later found, accompanied children as well—could not be detained for more than 20 days in an unlicensed or secure facility.
“For ICE to detain children for longer than that period, the facility, according to the Flores case, has got to have a state-issued license,” Bennion, said. “All three of those facilities have been operating in violation of Flores, at least at different periods of time, over the last four years. I know of children who have been held longer than 20 days at all three facilities.”
The Trump White House, viewing the settlement agreement as a form of “catch-and-release,” has called for the repeal of Flores—which, since it is a court decision and not a law passed by Congress, isn’t strictly feasible—meaning that the language’s inclusion in the larger appropriations bill may amount to an attempt at creating a legislative workaround to rules against prolonged detention of children in unlicensed facilities.
“There is a real risk of weakening standards for care” if Flores is abrogated by congressional action, Stephen Kang, a detention attorney at the ACLU Immigrants’ Rights Project, told The Daily Beast. “It would have to ultimately be adjudicated by the courts,” Kang continued, but the passage of the provision “would quite probably have a major impact on the enforceability of the Flores settlement.”
Knight’s office denied any larger implication behind the provision, which “simply states that federal facilities (such as HHS facilities) would not be required to be licensed by the state in order to hold a child under 18 years old,” Chris Jusuf, King’s communications director, told The Daily Beast.
Podkul didn’t buy that excuse.
“This is their attempt” to bypass Flores, Podkul said. “Now they’re asking Congress to provide a legislative fix to get around what the judicial branch says has to be the bare minimum when you’re holding children.”
Most of the facilities where families are being detained together are operated by state and county governments under federal contracts—which puts characterizing them as “federal facilities” on shaky ground. For example, the most high-profile family detention center currently in violation of state licensing requirements is the Berks County Residential Center in Pennsylvania, which—as the name implies—is a county-run facility.
The Berks County detention center, a former nursing home, has been under contract with Immigration and Customs Enforcement since 2001, providing an avenue for undocumented immigrants and asylum seekers to maintain family unity while their residency was adjudicated—one of only three such facilities in the United States, and the only one outside of Texas.
But in January 2016, the Pennsylvania Department of Human Services revoked the facility’s license, stating that the Berks County detention facility was not operating as a child residential facility, but was instead detaining families together, in violation of the commonwealth’s regulations. The facility appealed the decision, and the case has been winding its way through Pennsylvania bureaucracy for the past two and a half years.
The facility has a long list of regulatory infractions, ranging from putting housing unrelated adults and children in the same bedroom to a staff member physically mistreating a child who attempted to run away.
But the highest profile incident was the institutional rape of a 19-year-old Honduran asylum-seeker by a 40-year-old guard. The woman, known as “E.D.” in court documents, had fled her home country with her son after facing rape and domestic violence at the hands of her partner. While being detained and held at the Berks County detention center for more than seven months, E.D. was repeatedly assaulted by Daniel Sharkey, a guard at the facility.
After the abuse was reported by a seven-year-old witness—who told a psychologist at the Berks County facility that she was afraid to go to the bathroom after seeing Sharkey assault E.D. there—the guard attempted to portray the relationship as consensual. (Institutional sexual assault is a felony in Pennsylvania, as it is in most states.)
In a written statement, E.D. told the presiding judge that “whenever I’d denied [Sharkey’s] demands, he’d get very angry and humiliated me. He would tell me that if immigration ever found out, my son and I would be deported instantly, which is why I obeyed.”
Sharkey pleaded guilty and was sentenced to six to 23 months in prison.
“He, I believe, served less time than the young mother who he assaulted was actually detained,” Bennion told The Daily Beast.
Other incidents at Berks County detention facility have included a toddler who vomited blood for several days before staff took the child to a hospital, and a detainee with an untreated intestinal condition who was berated for wetting the bed.
“They’re not good,” Bennion said, of the conditions at the Berks County facility. Bennion and the Free Migration Project have been trying for years to get Pennsylvania’s government to shut down the facility, to no avail. “There’s no justification for our state government to be so derelict in protecting the welfare of these children. It’s shameful.”
Even the children and families who aren’t subject to the worst abuses, Bennion said, are exposed to potentially lifelong harm by being held indefinitely at the facility.
“When you detain children under these circumstances, for any amount of time, the consequences are“irreparable, regardless of the details,” Bennion said, noting that many of the families detained at Berks County’s detention facility have themselves have been victims of abuse or persecution in their home countries.
“You are holding over them the threat of death, or torture, or rape if they are sent back. And the children understand—they know what they’ve seen. It just amplifies the harm.”
Bennion pointed to Berks County’s nighttime bed checks, where a guard enters a bedroom four times every hour and flashes a flashlight for head count, as one of the seemingly “smaller” abuses that may be causing serious psychological damage to the children being detained.
“When a child [at Berks County] is woken in the middle of the night, sometimes they think that they’re being deported,” Bennion said. “And this trauma is being repeated, every 15 minutes, every single night.”
Attempts by congressional Republicans to keep unlicensed detention facilities like the Berks County detention center open, Podkul said, is evidence that the federal government is attempting to lower standards of care for children and families that it no longer has a desire to meet.
“In the Flores legal settlement, to which the government is bound, it was declared that it’s unreasonable for children to be held in a government facility for longer than 20 days,” Podkul said. “That does not mean that the government should then all of the sudden lower the standards of care.”