Is Texas Reforming or Enabling Immigration Lockups for Children?

The mother crossed the Texas-Mexico border early last November with her four-year-old boy. They were hoping to escape raging violence in Central America like the thousands of other mothers and children who have crossed the border in recent years to plead asylum in the United States. The mother first told authorities about her son's medical condition while detained by border patrol in what she called “hielera” or “la perrera” – Spanish for icebox and kennel. Following a kidney surgery in Honduras, the boy needed meds every six hours to maintain proper kidney function.

But the mother had lost her son’s medicine somewhere along the treacherous journey north. She grew worried when her son wasn’t taken to see a doctor after entering border patrol custody. Without his medicine, the boy soon began to suffer from stomach pain, fever and vomiting. Once they were shipped to the immigrant detention center in the isolated South Texas town of Dilley, things didn't get much better: medical staff, according to the mother, just gave the boy Tylenol.

The mother told her story in an affidavit filed among dozens of others with a complaint to the U.S. Department of Homeland Security last year, all alleging prison-like conditions and inadequate medical care at two private prison-run immigration lockups in South Texas that can detain up to 3,200 asylum-seeking women and children. While immigration attorneys, human rights activists and child welfare experts have pointed to stories like hers in flatly condemning the practice of family detention, the state of Texas earlier this month announced that it will allow the centers to apply for licenses to become state-regulated child-care facilities. The private prison companies that contract with immigration officials to run the centers are expected to apply for licenses as soon as the window opens on March 1.

The Texas Department of Family and Protective Services insists that by licensing the immigration lockups, conditions will improve and children will be better protected. But the many who have spoken out against the state’s plan say DFPS is condoning a practice that one federal court has already ruled should be discontinued. Further, they point to recent, systemic failings at DFPS, saying they have little confidence in the agency’s ability to provide any real regulatory oversight over the detention centers.

Luis Zayas, dean of the school of social work at the University of Texas, who has toured one of the detention centers, told the Houston Press that children are being placed in an environment that is harmful to healthy child development. To license the facilities, he insisted, would be an abdication of the state’s responsibility to properly care for children. “No matter which way you cut it, these are places that simply don’t lend themselves to being licensed child-care facilities.”

So-called “family detention” resurfaced two years ago as U.S. Immigration and Customs Enforcement struggled to deal with what it calls “an unprecedented influx in illegal migration from Central America.” Instead of being given a summons and released to fight their case in immigration court at a later date, the women and children were labeled a national security threat, and could thus be detained with an extremely high bond – or in some cases, no bond at all. In the summer of 2014, the Corrections Corporation of America and the Geo Group, private prison corporations that have grown rich off the federal government’s increased reliance on immigrant detention over the past decade, began to house asylum-seeking women and children at minimum-security lockups in Dilley and Karnes, another desolate South Texas town.

The feds had actually tried this before, most recently at the infamous T. Don Hutto detention facility in central Texas. At Hutto, a former state prison now run by CCA, immigrant children were dressed in prison-style jumpsuits and kept in small cells for up to 14 hours a day, often without being allowed food or even toys while in confinement. The lawsuit that ultimately forced the feds to pull kids from the private prison facility in 2009 cited a longstanding legal settlement that was supposed to bar immigration officials from ever again holding children in a prison-like environment (even in so-called “soft,” minimum-security detention). U.S. District Judge Holly Gee cited that same legal settlement last summer when she ordered the feds to remove asylum-seeking children from the Dilley and Karnes detention centers, saying the government hadn’t provided “any competent evidence” to support its argument for detaining families.

After that, many assumed the feds would finally be forced to shutter the family lockups. But then, with an October 2015 deadline to abide by Judge Gee’s ruling fast approaching, something unexpected happened: Texas got involved. DFPS claimed Gee’s ruling “highlighted a gap in oversight” at the centers. In fact, the state claimed it was such an emergency that it tried to fast-track the licensing process, which would have allowed it to create the new licensing category without even holding a public hearing.

Attorneys and activists working at the centers were suspicious because never before had DFPS considered children in immigration lockup to be an emergency situation. When Hutto still jailed kids, DFPS had actually exempted its private prison operator from any licensing requirements. When Karnes and Dilley opened, advocates asked the state what kind of oversight role it could play; DFPS responded that it wasn’t in the business of licensing privately operated detention centers.

What changed? Neither ICE nor DFPS representatives would tell us what kind of discussions they had about the detention centers after Judge Gee’s ruling last summer. While he flatly refused to talk about it with us, in an interview with the Austin American-Statesman last month, DFPS spokesman Patrick Crimmins hinted at the pressure many suspect the feds put on Texas officials to license the detention centers in order to keep them open:

“The (judge's) decision left Texas and the federal government with an option to regulate the facility, or have these illegal immigrants released into Texas communities without regard for the federal government's immigration disposition process. The federal government therefore requested licensure to prevent this and Texas agreed.”
It was an unusual show of support for federal immigration policy from a state that has challenged other Obama Administration immigration reforms all the way up to the U.S. Supreme Court.

A Travis County judge ultimately forced the state to slow down, ruling the situation was not an “emergency” and forcing DFPS to hold a public hearing over its new foray into family detention.

The hearing did not go particularly well for DFPS. Mothers who had since left the immigration lockups told state regulators stories of being separated from their children for extended periods of time. Mental health advocates who had toured the centers said children were losing weight, shedding hair and exhibiting symptoms of anxiety and depression. Advocates working at the detention facilities claimed the health care was so insufficient that some children had to be hospitalized immediately upon release.

This was DFPS's response to much of that criticism, contained in the final rule it sent out last week: “To argue that a given practice does not currently comply with regulations for child-care is to misapprehend the purpose of licensure and all that it entails.” If you think these facilities' track record is reason enough to deny them a license, then you just don't get how the process works.

In the final rule DFPS adopted earlier this month, the agency argues that licensing will force conditions to change at the detention centers. By applying standards that already exist for other state-regulated facilities that house children (save for a few exceptions, like a different staff-to-child ratio, that advocates say are not so minor), the agency says it will impose “a host of statutory, regulatory, and policy-based requirements aimed directly at protecting the health, safety, and well-being of children in care.”

“The problem is, they’ve failed so terribly in the past,” says Ellen Marrus, director of the Center for Children, Law & Policy at the University of Houston Law Center. Late last year, a federal judge excoriated DFPS for its handling of the most vulnerable kids in the state foster care system, saying the Texas regulators had turned a blind eye to systemic internal failures that left children exposed to physical, sexual and psychological abuse.

In a blistering 260-page ruling, U.S. District Court Judge Janis Jack also wrote that “DFPS continues to under-regulate licensed facilities” because of “deliberate indifference.” The ruling pointed to one licensed child-care facility in Manvel that the state closed only after four teenagers died from asphyxiation after being hog-tied by staff. (We wrote extensively about the lawsuit last week in this feature story.)

Marrus certainly thinks the immigrant detention centers housing children need to be reformed. She just doubts that DFPS oversight will do that. “I’m not convinced DFPS is going to make much of a difference,” she told us. 

When asked to respond to such criticism, Crimmins simply pointed out that the agency is appealing Judge Jack’s ruling. While DFPS says it can absorb the workload associated with licensing the immigration lockups with existing resources, Crimmins said he could not elaborate when asked. 

DFPS admits that fundamental aspects of the facilities that have made them so controversial — like whether they're lock-down detention centers where movement is limited — are outside of its purview. Which bothers Zayas at UT, who says keeping children in any type of prison-like setting can leave lasting psychological and even physical damage on children. "We are leaving lasting marks by doing this," he told the Press

This is DFPS's response, as contained in its new rule: “While DFPS is sympathetic to the concerns raised, the agency has no role in whether a person is placed or detained in one of the [facilities].”
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Michael Barajas
Contact: Michael Barajas