Jonathan P. Baird

On August 21, the Trump Administration announced final regulations designed to allow the government to subject immigrant children and families to indefinite detention. The rules are intended to replace a long-standing, court-ordered 20-day time limit on keeping families in immigration jails.

Rather than being paroled into the community pending the hearing on their immigration cases, unaccompanied minors and children with their families would be detained in prison. The average wait time for an immigration case to be heard is about two years and nearly three years in some jurisdictions.

The new rules would replace the Flores settlement agreement, a 1997 federal court settlement that imposed detention standards and time limits. The Trump Administration wants to get outside Flores obligations. It blames the Flores settlement for the high number of immigrants arriving at our Southern border.

The core principle of Flores is that migrant children taken into detention should be released as expeditiously as possible.

A coalition of twenty states, led by California and Massachusetts, has filed a lawsuit in federal court to stop the Trump Administration from rescinding the Flores settlement agreement. If the new rules are not stopped by a judge, the rules would take effect in 60 days.

Maybe it should not seem necessary to explain but the health consequences of incarceration for children are extremely damaging. Clara Long from Human Rights Watch put it this way:

“The detention of children can lead to trauma, suicidal feelings and exposure to dangerously inadequate medical care. No amount of time in detention is safe for children and prolonged detention is particularly harmful.”

There is a wealth of public health studies that demonstrate the adverse health consequences of children being incarcerated. These include both negative physical and emotional symptoms. Depression, sleep problems, loss of appetite, headaches and abdominal pain are common symptoms. Trauma, regression in children’s behavior, suicidal thoughts, nightmares and feelings of hopelessness and despair are also part of the picture.

It must not be forgotten that many migrants are fleeing extreme violence and sexual assault and they need protection and services which address these complicated needs.

Under Flores, children could only be detained in facilities that are licensed by an appropriate state agency. The new regulations remove that requirement and replace it with a new self-licensing system. Department of Homeland Security would have no credible oversight and their performance has been anything but reassuring.

In the 9th Circuit Court of Appeals, the Trump Administration lawyers have just been arguing that safe and sanitary conditions do not require access to soap, toothpaste or minimally adequate sleeping conditions. Children have been spending the night on concrete floors, covered by Mylar blankets, in cramped, frigid, brightly-lit cells.

There have been many anecdotal stories about rotten food, no access to showers, sexual assault and overcrowded standing room-only cells. Outbreaks of infectious diseases, particularly mumps, have been widespread. The U.S. Centers for Disease Control and Prevention just reported 898 confirmed mumps cases in 57 facilities housing ICE detainees. A large majority of the cases were at detention facilities in Texas.

Racism appears to be rampant in the Border Patrol and ICE. Witness the Border Patrol Facebook group that showed active-duty and retired officers viciously mocking lawmakers and dead migrants. Violent, white supremacist, and misogynistic posts were disturbingly common. According to ProPublica, this Facebook group had more than 9,500 members before it was exposed.

More generally, the Department of Homeland Security has a dismal track record on accountability and transparency with its immigration detention facilities. The public does not fully know what is going on with these detention facilities, how many people are being held, and in what conditions.

This is America’s own gulag, 2019-style. Department of Homeland Security is blocking investigators and congressional staffers from visiting migrant facilities near the U.S.- Mexico border since previous House Oversight staff inspections revealed ongoing problems. During this Administration, seven children have died in custody.

The Flores settlement agreement included detailed child protection obligations for children detained without adults. The agreement is the only established set of protections for immigrant children held in detention. Over the last twenty years, Flores counsel repeatedly went to court to seek enforcement of the obligations. The new regulations do not incorporate the detailed obligations of Flores.

A big part of the Trump Administration argument for the new regulations is the supposed deterrent effect of punishing migrants by imprisoning them pending their immigration hearing. The evidence for that assessment is lacking. Harsh measures have not been lessening illegal entries.

The high cost of child incarceration has also been thoroughly underestimated. An unnamed official at the Department of Health and Human Services told NBC News that housing costs $775 per child, per day. Incarceration costs significantly more than supervision in the community. The cost of private prisons for immigrant children and their families is its own scandal.

While it is impossible to predict with accuracy whether the Court will allow implementation of the new rules. the Flores settlement only terminates when the government issues regulations that are consistent with and implement the terms of the settlement. That is clearly not the case.

I know Congresswoman Alexandria Ocasio Cortez took much heat when she described the immigration detention facilities as “concentration camps” but her description is accurate. We need a full investigation and expose. Nothing could be more un-American than holding children in atrocious conditions.