Ingrid Eagly is a law professor at UCLA School of Law and faculty director of the David J. Epstein Program in Public Interest Law and Policy. Steven Shafer is a supervising attorney for released youths at the Legal Orientation Program for Custodians of Unaccompanied Minors at the Esperanza Immigrant Rights Project in Los Angeles. Jana Whalley is a University of California presidential fellow at the National Immigration Law Center in Los Angeles.
The Trump administration last week backed down from its cruel policy of separating children from their parents at the U.S. border with Mexico, but don’t be fooled by the new policy of keeping migrant families together while detained. It, too, is inhumane and misguided.
In the first-ever national evaluation of the immigration court cases of families subjected to detention, we analyzed 15 years of federal immigration court records, from 2001, when the United States opened the first brick-and-mortar detention facility exclusively housing families, to 2016, the final year of the Obama administration.
Our findings, published this month in the California Law Review, counter the two central arguments cited by the Trump administration in favor of detaining families. First, the administration claims that families arriving at the border have “exploited” the asylum law and are not legitimate asylum seekers. Our data show otherwise. We tracked the resolution of the immigration court cases involving individuals in family detention and found that half of those who were released from custody and sought legal relief from removal with the help of an attorney were allowed to stay in the United States.
Even in cases where asylum officers initially determined that families did not have a “credible fear” of returning to their country of origin, we found that immigration judges reversed these decisions half of the time after considering the evidence presented. These findings underscore that families arriving at the border often have compelling and valid claims that merit full consideration by federal immigration judges.
The Trump administration makes a broader claim about detained immigrants, arguing that those released from detention will not show up for their court dates. Our study of asylum cases found the opposite. Over the 15-year period covered by the research, we found that 86 percent of family members released from family detention attended all of their future immigration court dates. Those released from family detention who applied for asylum were even more likely to attend court hearings, with 96 percent attending all of their hearings after being released from custody.
President Trump’s recent executive order on detaining families instructs the defense secretary to “take all legally available measures” to construct and expand facilities to hold children and their mothers. Yet such immigrant detention centers are extremely costly. In its fiscal 2017 budget, the federal government dedicated $1.74 billion to operate existing facilities, many of them operated by the private prison companies Geo Group and CoreCivic, to hold immigrant detainees. According to federal officials, the average daily cost of detention is approximately $126 per adult. For family members in detention, the daily average cost is even higher: approximately $161 per person, or $644 for a family of four.
In addition to the emptiness of the government’s claims about undocumented immigrants and asylum seekers, and the steep cost of detainment programs, there is the simple, brutal fact that facilities designed to hold immigrant families are likely to expose them to adverse conditions and psychological trauma. Artesia Family Residential Center in Artesia, N.M., was shut down in 2014, and the T. Don Hutto Residential Center in Taylor, Tex., was barred from housing families in 2009, in both cases after subjecting families to inhumane conditions, including unreasonably cold rooms, substandard food and inadequate medical care. In 2015, a federal judge determined that Border Patrol had unlawfully exposed families to “widespread and deplorable conditions” and “wholly failed” to provide “safe and sanitary” conditions.
The following year, an advisory committee of independent experts appointed by the Department of Homeland Security to evaluate family detention found that “detention is generally neither appropriate nor necessary for families.” The advisory committee concluded that “DHS should discontinue the general use of family detention.” It was good advice.