Tanvi Misra is a staff writer for CityLab covering immigrant communities, housing, economic inequality, and culture. She also authors Navigator, a weekly newsletter for urban explorers (subscribe here). Her work also appears in The Atlantic, NPR, and BBC.
After the executive order signed by the Trump administration, the situation for kids and families detained at the border is even more uncertain than it was before. But here are some scenarios.
This week, the outrage over migrant children the Trump administration has been separating from their parents reached a crescendo. City leaders were alarmed to learn of shelters housing these children in their midst. Some came out in opposition. Others traveled to the “tent city” set up near the border to survey the situation there. Meanwhile, activists planned nationwide protests in cities across the country.
On Wednesday, President Donald Trump signed an executive order that was billed as an attempt to end the practice of family separation. In reality, it didn’t do much to ensure that outcome. It did not take back the policy that triggered the crisis; it did not lay out a plan to reunite the families. Instead, its language signaled an intent for entire families to be detained together in the future, likely, for extended periods of time—setting the stage for significant logistical and legal challenges.
“We're moving from a process by which families are separated to a process by which families are held in jails indefinitely,” said Frank Sharry, executive director of America’s Voice in a press call Wednesday. “That is hardly a humane alternative.”
So, what does that mean for the migrant children in question? And the ones who arrive in future waves? Where exactly are they likely to end up? The answers to those questions are complicated and incomplete. Nevertheless, there are a few things we know. While the crisis is currently concentrated near the southern U.S. border, in the coming weeks, kids and families are likely to end up at facilities spread around the country, unleashing potentially more opportunities for community impact and input. Below are some scenarios:
For children who have already been separated, there is no plan
The executive order has triggered significant confusion among government agencies. CBP reportedly has stopped referring migrant parents to the Department of Justice (DOJ) for prosecution for now, even though the DOJ maintains that Trump’s zero tolerance policy still stands.
Since the policy was announced in May, migrant parents had been facing criminal charges for “illegal entry”—even if they were claiming asylum. Meanwhile, their kids were taken from them and categorized as “unaccompanied.” As is required by law, they were then handed over to the Department of Health and Human Services (HHS)’s Office of Refugee Resettlement (ORR). Some remain in facilities overseen by this agency before they are released to a vetted sponsor or relative, or placed in licensed foster care. (It’s unclear how equipped these foster settings are in dealing with the needs of separated migrant children.)
At this point, the picture of how many remain in custody, how many have been placed with relatives, sponsors, or in foster care, and how many have been deported, is not comprehensive. And there a lot of ambiguity about where these children currently are and where they will be going next. In many cases, the parents are thousands of miles away, and say they have not been kept abreast of their children’s location.
Strikingly, authorities appear to have no clear plan to reunite the 2,300-plus children who have been separated in the past two months with their parents—even after the executive order. (That’s the latest count Customs and Border Protection has given to the press; the total count of unaccompanied minors in ORR custody is much higher.)
It’s the immigration lawyers who are scrambling to do so—through a process that could take months, or even years, if it is successful at all. What’s more, the administration does not actually rule out splitting apart families in the future. There’s a clause in the executive order allowing that, should Department of Homeland Security (DHS) officials find “a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare,” then the child can be separated from their parent. Cases have come up where parents have been suspected to be traffickers, and separated from children on those grounds. Advocates worry that this will continue, funneling more and more kids to the ORR.
The children who are currently in government custody—or those will be in the future—are being housed in facilities overseen by or contracting with ORR that are scattered across the country. Around 5,000 migrant children are being held in 31 state-licensed ones in Texas, according to the Texas Tribune. But children of various ages are being shipped as far as Washington, Illinois, Michigan, Pennsylvania, New York, and D.C. According to New York City Mayor Bill DeBlasio, the kids at the Harlem facility he visited on Wednesday had traveled 2,000 miles in a bus to get there.
What’s particularly concerning is that these facilities, which are increasingly having to take in kids as young as one or two years old, don’t have the best track record for child care. A recent investigation by Reveal News found a history of abuse allegations: children being drugged without permission, sexually abused, and medically neglected. A new lawsuit has surfaced details about young teens held at an ORR-run juvenile facility in Virginia who have complained of being stripped naked, physically abused, and placed in solitary confinement.
For families who will be detained together, the future is murky
The executive order seeks to modify a key settlement reached in the 1999 Supreme Court case Flores v. Reno, which defined the standards for how migrant children are detained. After the Obama administration tried to detain Central American families seeking asylum, a court set a 20-day time limit for detention. In general, the Flores agreement favors the release of children from custody at the earliest opportunity, and if that is not possible, then they should be detained in the “least restrictive conditions.”
On Thursday, the DOJ submitted its request to modify the Flores agreement in court, asking to lift the time limit on detention, and asking to exempt the facilities where children are held from state licensing requirements. In other words, it is looking to detain families for extended periods of time, in many more types of facilities than are currently available to them.
While this is resolved by the courts, children crossing the border with families can only be admitted into the Immigration and Customs Enforcement (ICE) family detention centers, where critics and observer have described conditions as “prison-like” and shameful. The family detention centers that haven’t shut down are at capacity.
“It’s hard to know where ICE could quickly find substantially more beds to house families,” writes César Cuauhtémoc García Hernández, a legal scholar and immigration expert at the University of Denver in a blog post. “It is almost certain to seek help from private prison corporations like GEO Group and CoreCivic (formerly Corrections Corporation of America) that already run family immigration prisons in Texas, but even they can’t open a facility overnight.”
ICE issued an RFI today for more family detention space. https://t.co/jCisXriEh6— Susan Carroll (@_SusanCarroll) June 22, 2018
Children coming unaccompanied or who are separated from their parents in the future will continue to be handed over to the ORR, or be temporarily held in Immigration and Customs Enforcement (ICE) juvenile detention facilities—which advocates argue tend to be far from family or legal representation. Below is a map of all facilities registered as family (in green) or juvenile (in orange) detention centers in ICE’s records as of November 2017—obtained by the National Immigration Justice Center (NIJC) via a Freedom of Information Act (FOIA) request.
(Note: Not all of the below may be currently operational. For instance: Only three family detention centers—Berks County, Pennsylvania, Karnes Residential Center in Karnes City, Texas, and South Texas Family Residential Center in Dilley, Texas—are open to house families. And NIJC notes that only nine juvenile centers are holding minors, in theory, for limited periods of time.)
ICE’s family detention centers and juvenile facilities:
If—and this is a very big if—the government succeeds in convincing a court to lift the child care licensing requirements currently in place under what is known as the Flores agreement, or lobbying Congress to rewrite federal law, it can theoretically also use other parts of ICE’s detention infrastructure to house children and their parents together.
The agency has contracts with more than 1,000 local governments to detain immigrants. These facilities are typically owned publicly but may be operated by local governments or by private entities. In the map below, the ones (in red) are dedicated for immigrant detainees but others may be county or city jails that rent out beds to DHS (in red) or the US Marshal Service (in green).
In her testimony to the Homeland Security Advisory Council, Margo Schlanger, now a law professor at the University of Michigan, noted that jails were “systematically, more chaotic, more dangerous, and more idle than [prison-like detention centers]. The rates of assault and suicide are higher in jails than in prisons, and the level of amenity is lower.”
This is also an area where local governments have recently pushed back. This week, Atlanta’s mayor Keisha Lance Bottoms signed an executive order blocking the city’s jail from accepting ICE detainees. She said she was reconsidering the federal contract which paid the city $78 per detainee it takes in, according to the Atlanta Journal Constitution.
Local facilities where ICE can hold detainees:
Human rights groups have criticized both private and public immigration detention centers. This week, a joint report by several human rights agencies found that at over half of the 15 deaths in immigrant detention over a 16-month period were due to medical negligence. Six of those deaths occurred in private facilities, where standards of accountability tend to be lower.
And finally, the government has increasingly locked up non-citizens—even those who are being held in civil detention—in federal prisons. On Thursday, The Appeal’s George Joseph found that 123 civil immigrant detainees were being held in the same building as the general inmate population in Oregon.
Below is a map showing these federal prisons (in teal), the private detention facilities that contract with DHS (orange) and the US Marshal Service (blue), and the federal facilities under the purview of the Bureau of Prisons:
Federal prisons and private detention facilities open to ICE:
It’s obvious that none of these are appropriate places to detain children for long periods of time. But critics argue that there’s actually no humane way to detain children, citing recent statements by the American Association of Pediatricians and the United Nations that family detention is inherently cruel and permanently damaging.
“You don't need a law book or a legal degree to know that's wrong,” said Karen Tumlin, of the National Immigration Law Center, in a press call. “Children, especially those fleeing persecution, need safety and environments where they can thrive and play and be safe. They don't need jail.”
What critics fear is that the government’s end game is to keep detaining children—with or without families—no matter where the court comes down on the Flores case, and then put the blame elsewhere. If they are not able to override current standards, they may cite congressional failure of a biased court decision as the reason to keep separating children. If they do manage to change the standards, they can imprison children for longer, in more types of facilities. Reportedly, HHS is already looking looking to secure space in military bases for 20,000 children.
“If the administration decides to ignore Flores or to try to change it, I think we could see even far more inappropriate facilities, than we already have where their children would be detained,” said Katharina Obser, a senior policy advisor at the Women’s Refugee Commission,“whether it's with their parents or without.”
*Facility addresses have been converted to latitude and longitude by Scale Campaign, and their positions on the map may not be precise representations of facility locations.
* These maps are based on ICE’s data as of November 2017. They do not include smaller staging and processing facilities run by DHS, and may contain some outdated information. Information about the ORR facilities included in that dataset was redacted.