The recent decision of the Department of Homeland Security (DHS) to open family detention centers in response to the increasing numbers of immigrant families arriving in the U.S. is like stepping back in history to the agency’s last failed policy of detaining children and their parents. Apparently, DHS didn’t learn that family detention is a misinformed approach to the current humanitarian crisis along our southern border.
In 2006, DHS began to incarcerate families under deplorable conditions at the infamous T. Don Hutto detention center, a former medium security prison near Austin, Texas, run by the Corrections Corporation of America, a private for-profit prison company. Children and their parents were housed in cells, forced to wear prison garb and confined to their cells for many hours each day. Children were provided no education or medical care, and items such as toys, pens and pencils were considered potential weapons under prison rules and not allowed. The University of Texas Immigration Clinic and the American Civil Liberties Union successfully sued to challenge conditions at T. Don Hutto, leading to the end of family detention there in 2009.
My previous experience working at T. Don Hutto convinced me that children and their parents should not be detained in secure facilities under any circumstances. The images of sad children and their anxious parents will remain seared in my memory. Even if DHS has learned this time around to scrap the prison uniforms, cells and the accoutrements of a harsh prison regime, detention of children is wrong and has lasting harmful psychological effects. The same complaints coming from the Artesia family detention center housing women and children in New Mexico are the same that I heard repeatedly at T. Don Hutto depressed children, weight loss, stressed-out parents and unpleasant institutional food. Another family detention center facility opened this month in Karnes City, Texas. Like Hutto, it is run by another for-profit prison company, GEO. When I visited the Karnes facility recently for the first time, I saw the same things, anxious mothers and crying children.
Some argue that all the families and children should simply be sent home, or that we must increase the border patrol to “seal” the border, but the issue is much more nuanced. We must consider the systemic causes that have led desperate Central American parents and their children to flee violence, crime, gangs and poverty. Honduras, for example, has the highest murder rate in the world. Many families qualify for asylum protection, which in accordance with domestic and international law, prevents our government from returning a person to a country where she will be harmed.
In addition to detaining children and their mothers, DHS has implemented a policy that no family should be released from detention at any point in the proceedings, even if they have established the threshold requirements for asylum. DHS’s position is a radical departure from its prior practice favoring the release of asylum seekers and providing them with an individualized determination regarding the necessity of a bond, to ensure their appearance in immigration court. DHS’s “no-bond” policy will result in lengthy detention for mothers and children as they present their asylum cases before the immigration court.
The refusal to release families on bond also conflicts with a prior court settlement in the case of Reno v. Flores that requires that DHS use the least restrictive alternative to detention for children. Children should not be denied this right simply because they are accompanied by and detained with a parent.
This is a refugee crisis, and there is a broad spectrum of less drastic alternatives to detention for families to ensure that they appear for their future immigration hearings. Mothers and children should be reunited with family members in the United States rather than languish in detention. Families should be placed in community supervision programs or programs that require them to report frequently to DHS. Funding should be increased to provide lawyers for this population. Studies have shown that asylum applicants with legal representation have high court appearance rate and far better success in their cases.
Let’s not repeat the mistakes of the T. Don Hutto center and, instead, treat children and their parents compassionately.
Barbara Hines was co-counsel in the In Re Hutto Detention Center litigation, a clinical professor of law and co-director of the Immigration Clinic at The University of Texas School of Law.
A version of this op-ed appeared in The McAllen Monitor.