Originally published by The New York Times
And now, it has come to this.
“We are trading kids in cages for families in cages,” said Cory Smith of Kids in Need of Defense, a legal advocacy group on whose board I serve.
On Wednesday, President Trump said in an executive order that he planned to keep families together by jailing parents and children together during the course of their immigration hearings.
On Thursday, the Department of Defense was tasked with finding space on military bases to house up to 20,000 children. Attorney General Jeff Sessions filed a request with a United States District Court in California to modify a consent degree from 1997 — known as the Flores agreement — that set standards for the detention of children and that a judge in 2015 interpreted as requiring that children be released within 20 days.
The Trump administration can’t jail children and parents together without changing this agreement. But there’s no reason to expect its attempt to succeed, said Carlos Holguín, the general counsel for the Center for Human Rights and Constitutional Law, which litigated the 1997 case.
Why should we rejoice that a court is likely to block a policy that seems at least a tad better than ripping babies out of their mothers’ arms?
First, because there actually is a humane way to enforce our immigration laws when children and families arrive at our border.
Second, because prisons are bad for kids, even if they have their parents with them.
Fear triggers a flood of stress hormones that wreak havoc on neural circuits in the brain and make children susceptible to emotional and physical harm. Studies show detention retraumatizes survivors of violence, especially children, said Karen Lucas, director of the immigration justice campaign at the American Immigration Council.
Most immigrant children apprehended with their families on our southern border are from Honduras, El Salvador or Guatemala, three of the most violent countries on earth. Many children know of, or have witnessed, a family member or friend murdered by the gangs that control their neighborhoods. They force boys to join them or be killed. They force girls to have sex with them or be killed.
These children and their parents flee through Mexico, where they face bandits, gangsters and corrupt police officers — all out to rape, rob or deport them. About six in 10 girls are raped on the journey north. Thousands upon thousands of Central Americans are kidnapped each year in Mexico; girls are prostituted, boys are enslaved, migrants are killed, their organs are harvested. (This is the journey that President Trump on Thursday said was like “walking through Central Park.”)
When the United States Border Patrol apprehends families trying to cross our southern border, they are thrown into “hieleras,” ice-cold jail cells, for a few days while awaiting processing. They sleep on concrete floors, with the lights on, and are often not given enough food. Sometimes they are caged in “perreras” — enclosures that look like dog kennels.
Families with children used to be simply released from there and told to check in with Immigration and Customs Enforcement and to show up to their immigration court hearings. But in recent years, as the numbers of minors crossing the border has increased, more and more parents and children have instead been transferred to family detention centers.
The first, in Berks County, Pa., opened in 2001; the second, in Taylor, Tex., opened in 2006; and in 2014 three opened, in Artesia, N.M.; Karnes County, Tex.; and Dilley, Tex. Ms. Lucas, at the American Immigration Council, described being shocked when she first entered the Artesia detention facility and saw rows upon rows of high chairs in the prison cafeteria.
These are not places where we should want more children to go. Luis Zayas, the dean of the school of social work at the University of Texas, Austin, evaluated detained families at the Karnes facility in 2014. He found that children regressed to bed wetting. A 9-year-old girl sought to return to breast feeding. Children clung to their mothers’ legs, fearful of letting them out of sight. Many had night terrors, were depressed or acted out. They could sense their mothers’ worry.
“Children are very attuned to their parent’s psychological status,” Dr. Zayas said. “They sense something is wrong with Mom.” One mother ran into the interview room, yelling, “They are watching us!” She peered inside light sockets and felt under the table for any listening devices. Her boy looked on. “These kids are already traumatized and we add a third level of trauma,” Dr. Zayas said.
Mothers reported that they were ordered not to let their toddlers crawl and that toys were not permitted in the living quarters. Children couldn’t get bedtime snacks. When a dozen or more people share one cell, it shatters the family structure. Moms couldn’t cook or set their own schedule. Children watched their parents become powerless. Dr. Zayas heard about a guard who cut in front of a mother who was microwaving food and said, “Quédense atrás, muertos de hambre!” — “Step back, you wretched people!”
A 2007 report by the Lutheran Immigration and Refugee Service and the Women’s Refugee Commission found that children in family detention centers showed signs of severe depression and were subject to alarming disciplinary tactics, including threats to take their parents away. Mothers reported being threatened with separation from their children if they resisted signing documents they didn’t understand. Some children refused to eat and lost weight. Mental health care was limited. One mother said her daughter, who had fled rape threats by gangs in her home country, had grown depressed in detention, but repeated pleas to see a psychologist were denied.
Even worse, guards at these facilities have themselves been accused of sexual assault. A 2014 report by the same groups railed against substandard medical care, abusive treatment or neglect by personnel, lack of access to telephones and sexual assault. Family detention, the report concluded, remains ripe for abuse.
Locking families up isn’t just psychologically and even physically harmful. It also stymies immigrants’ access to lawyers and due process for their asylum claims, thus increasing the danger they will be returned to the harm they just fled. Only 14 percent of detained immigrants have a lawyer, compared with 66 percent of non-detained immigrants.
And lawyers mean the difference between winning and losing: More than seven in 10 unaccompanied immigrant children with lawyers win the right to stay legally in the United States, while nine in 10 without representation lose.
How can we improve family detention? We can’t. Immigration and Customs Enforcement’s own 2016 advisory committee on this issue stated unequivocally in its 169-page report: You cannot fix it. Just don’t do it at all. The Department of Homeland Security “should generally exercise its authority to release family members, together as a family, as soon as possible.”
President Trump is far from the first president to jail children. Time and again administrations have responded to surges in migrants by detaining families. Each time, the American public has said no. Political pressure and court rulings have forced the federal government to curtail these efforts.
In 2009, the Obama administration closed the T. Don Hutto Residential Center in Taylor, Tex., then the largest family detention prison, after a firestorm of controversy. Then in 2014, President Barack Obama responded to the surge of Central American immigrant children by once again ramping up family detention. The number of available beds jumped from about 100 to 3,000. The government implemented a “no bond, no release” policy, holding families even after they passed asylum officers’ “credible fear” interviews. More than half of the 1,050 children who entered family detention in fiscal year 2014 were 6 or younger.
Today, Republicans are proposing legislation to stop the separation of children from their parents. To be clear, the plans they are touting would instead put migrants through a litany of horrors. Ted Cruz had the nerve to call his the Protect Kids and Parents Act. It gives immigrants just 14 days for the processing of asylum court cases; lawyers say it takes a year at minimum to collect witness and police reports and other documents needed to prove an asylum claim.
Other bills allow indefinite detention of children and families and strip away anti-trafficking protections that ensure unaccompanied immigrant children from Central America get a court hearing instead of letting Border Patrol agents quickly determine their fate. They gut asylum protections by raising the standard that migrants must meet to show they were in danger in their home countries. The least draconian, Paul Ryan’s bill, could still cut the number of people who receive asylum in half, Cory Smith of KIND said.
These bills would add to the blow inflicted by Mr. Sessions on June 11, when he ordered immigration judges to no longer consider domestic violence or gang violence as grounds for asylum.
Someone, please tell the president: There are humane, effective alternatives to his brutal policies. And they cost less, too.
The family case management program, a pilot started in January 2016, allowed families seeking asylum to be released together and monitored by caseworkers while their immigration court cases proceeded. Case managers provided asylum seekers with referrals for education, legal services and housing. They also helped sort out confusing orders about when to show up for immigration court and ICE check-ins. And they emphasized the importance of showing up to all court hearings, which can stretch over two or three years.
The pilot was implemented with around 700 families in five metropolitan areas, including New York and Los Angeles, and it was a huge success. About 99 percent of immigrants showed up for their hearings.
It also did something Republicans love: It cut government spending. The program cost $36 per day per family, compared with the more than $900 a day it costs to lock up an immigrant parent with two children, said Katharina Obser, a policy adviser at the Women’s Refugee Commission.
The pilot, scheduled to last five years, was abruptly canceled by the Trump administration almost exactly a year ago.
Other alternatives to prison have also excelled. ICE has two programs that use electronic ankle monitors, biometric voice-recognition software, unannounced home visits, telephone reporting and global positioning technologies to track people who have been released from detention while their cases are being heard, at a cost of 30 cents to $8.04 per person per day. In 2013, 96 percent of those enrolled appeared for their final court hearings, and 80 percent of those who did not qualify for asylum complied with their removal orders.
Instead of spending money on family detention centers that brutalize children, we should scale up the canceled case-management program. We also need to expand access to pro bono and government-funded lawyers so that the immigration court process isn’t a sham.
If in the end a family loses its case and isn’t deemed eligible to stay in the United States legally, the federal government should issue a notice for them to present themselves to ICE for deportation. If they don’t show, give ICE the resources it needs to go out and arrest and deport the migrants.
Law and order can go hand in hand with humanity. It’s the American way. What we should never abide is treating children like trash, no matter where they come from.