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Particular Vulnerability: Opposing Indefinite Detention of Children

(Photo: U.S. Customs and Border Protection)

As the U.S. immigration debate continues to ramp up in Washington, the Project On Government Oversight is responding by demanding accountability and transparency in immigration policy. Recently, POGO has been more vocal about many facets of immigration policy, expanding on our past work on detention center oversight and contracting issues to weigh in on issues of constitutionality, legality, and transparency. This month, POGO filed a formal comment opposing a proposed regulation from the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) that would change long-standing detention standards for immigrant children.

Just like with military spending, inspector general reform, or whistleblower protections, we want transparent, ethical, and sustainable policies that respect both the rule of law and the taxpayer footing the bill.

We commented on this rule and work on these issues because U.S. immigration is controlled by federal law, inherently raises constitutional questions, and requires federal spending of taxpayer money. In short, it’s a “POGO issue” if ever there was one.

Just like with military spending, inspector general reform, or whistleblower protections, we want transparent, ethical, and sustainable policies that respect both the rule of law and the taxpayer footing the bill. This proposed rule fails to pass our checklist.

The proposed rule seeks to change the “apprehension, processing, care, and custody of alien minors and unaccompanied alien children” in the United States by superseding a 1997 class-action lawsuit settlement called the Flores Settlement Agreement.

The Flores case came in response to U.S. immigration authorities detaining a 15-year old girl in a makeshift detention center for two months, holding her alongside adults and subjecting her to regular strip searches. Immigration authorities refused to release the girl from detention even though she had an aunt in the U.S. willing to care for her. Because of her experience and those of others like her, the settlement was written with the “particular vulnerability” of children in mind and aimed to set standards to protect children in immigration detention.

Pursuant to Flores, and subsequent court cases that interpreted it, the government cannot hold minors in adult detention centers for more than 20 days and must use the least-restrictive means necessary for that detention. After 20 days, federal authorities must transfer custody of children either to their legal custodians or to facilities that are licensed by state child-welfare organizations to care for children. Currently, there are only three family detention facilities that have such licenses, which effectively limits the government’s ability to detain children for more than 20 days. These standards apply to all children, whether they enter the U.S. with family members or alone.

The proposed rule would supersede Flores by not only removing the 20-day limit, but by allowing DHS to simultaneously weaken oversight over facilities by removing the role of independent state licensing. It would also end the Flores class counsel’s court-mandated right to inspect child-detention facilities.

As written, this regulation raises more questions than it answers, indicating that the government is not adequately prepared for its implementation.

Instead, the rule would allow DHS to self-license its own facilities as fit to indefinitely house and care for children. We’ve seen DHS fail time and time again when it comes to inspecting its own facilities or finding competent contractors to complete inspections on its behalf. This holds true for both family residential detention facilities and adult detention facilities.

For example, a recent inspection at the Adelanto adult detention center in California by the DHS Inspector General demonstrates the importance of independent and transparent inspections. On conducting an unannounced inspection, the Inspector General found serious issues that “not only constitute violations of ICE [U.S. Immigration and Customs Enforcement] detention standards but also represent significant threats to the safety, rights, and health of detainees.”

Investigators found what staff called “nooses” made out of bed sheets in 15 out of 20 cells that they inspected. While many of these sheets were used as illicit room dividers, some were quite literally nooses. One detainee reported that he saw several suicide attempts and that “the guards laugh at them and call them ‘suicide failures’ once they are back from medical.”

While the Inspector General does occasionally conduct surprise inspections of facilities like Adelanto as a part of a larger investigation, regular inspections are typically conducted by private companies under contract with the government. Inspections for Adelanto, for example, are conducted by a company called Nakamoto Group. Another DHS Inspector General report notes that ICE employees call Nakamoto’s inspections “very, very, very difficult to fail” and “useless.”

Part of the problem with these inspections is that DHS rarely releases inspection reports to the public, so it’s difficult to hold the agency or its contractors accountable for lax investigations or for repeat violations that go uncorrected. DHS’s lack of transparency about the conditions of immigration detention facilities and the problems that are revealed when inspection reports are released show why it would be disastrous to permit the government to hold children in facilities that DHS can approve unilaterally.

DHS’s credibility is not helped by the fact that its leader has recently lied to members of Congress on multiple occasions about the detention of children. As POGO and Open the Government discovered earlier this year, Homeland Security Secretary Kirstjen Nielsen approved the DHS policy of separating families at the border as a deterrent before telling Congress under oath that there was no such policy and that the idea of using family separation as a deterrent is “offensive.”

The Secretary’s willingness to lie directly to Congress about a major immigration policy is appalling on its own, but also fits a broader pattern of DHS trying to avoid Congressional oversight. Congress plays an essential role overseeing executive agency activities. To perform this check on the executive branch, though, Members must have unfettered access to details about agency programs, and agency leadership must be candid with them.

In addition to overseeing agency conduct, Congress also establishes agencies’ budgets and appropriates their funds. Unfortunately, DHS and HHS chose not to make any cost estimates when proposing this rule, even though it could cost DHS millions of dollars annually to detain children and families for longer lengths of time and to construct additional family detention centers.

In the past, ICE, the branch of DHS responsible for the detention of immigrants, has blown past its budget for detention spending, requiring the reallocation of funds from DHS subsidiaries like the Federal Emergency Management Agency. It seems agency leadership is relying on Congress to bail them out rather than presenting an honest estimate of what this proposed rule would cost taxpayers. Some organizations calculate that this figure could be upwards of $12.9 billion in ten years.

In the past, Members of Congress have called out DHS’s apparent “inability to manage detention resources within the appropriations made by law.” Despite the large cost, by putting this rule forward, DHS shows that they will continue to rely on and grow their detention capabilities rather than making use of alternatives to detention which are effective and have had bipartisan support in the past.

As written, this regulation raises more questions than it answers, indicating that the government is not adequately prepared for its implementation. Given DHS’s unacceptable track record of failed self-policing and DHS Secretary Nielsen’s penchant for lying to Congress about immigration policy, there is no reason to think this proposed regulation would guarantee adequate protection for the children it would affect. We saw the disastrous effects of the rushed implementation of family separation and the strained effort to undo the damage after the government walked that policy back. Let’s not forget the lessons learned from that debacle so quickly by rushing to implement another ill-conceived immigration policy that is dangerously deferential to the agency creating it.