U.S. Department of Health and Human Services
This article appears in the Fall 2018 issue of The American Prospect magazine. Subscribe here.
A child in detention tries to keep from dreaming of the outside world.
Afuera. Outside. That place where kids his age are busy jumping in pools under the summer sun or laughing in air-conditioned movie theaters; the kinds of things he used to do with his mother and his sisters before they were separated, and that he hopes to do again once he’s released.
But for the moment, afuera feels far off to Martín, who is still a teenager. And while dreaming of freedom provides a temporary escape from the loneliness of confinement, it can also be painful. Just as the shelter monitors circumscribe his actions, so too must Martín police his own thoughts.
“In the shelter, it doesn't feel good thinking about being outside,” says Martín. “It's frustrating.”
Martín, whose name has been changed for protective purposes due to his ongoing case, is one of more than 12,300 migrant children currently held in government-contracted shelter facilities while they wait for their immigration cases to be resolved, according to an internal report of the government's Office of Refugee Resettlement obtained by The American Prospect.
The Trump administration's separation of immigrant families at the border catapulted the matter of migrant children into the public eye, fomenting outrage and condemnation. But that “zero tolerance” effort, which was eventually walked back by the president, is just one of many callous policies dictating the lives of unaccompanied minors. And while most of the estimated 3,000 children separated from their parents at the border are now back with their families, thousands who arrived there alone are still waiting to be reunited.
Trump's lock-'em-up policies have brought a crisis of a different kind to the civil servants—many of them child welfare specialists—at the Office of Refugee Resettlement (ORR), a division of the Health and Human Services Department tasked with (among other things) the care of unaccompanied minors. Employees have seen their agency's mission redefined from one of assisting the assimilation and resettlement process to one of aiding federal policing forces in targeting undocumented immigrants.
Critiques of lack of transparency and due process for migrant children date back across various administrations but have swelled since Donald Trump took office. The National Center for Youth Law, the Center for Human Rights and Constitutional Law, and the Legal Aid Justice Center are just some of the groups representing migrant children that have sued his administration.
All the lawsuits charge that the administration has run afoul of the Flores agreement, a 1997 legal settlement that sets the floor for permissible treatment of unaccompanied minors, and limits how long the government can hold them.
Under Trump, child releases have slowed to a trickle, causing longer stays for detained children. In 2015, the average length of stay in a shelter was 34 days. In 2017, that number went up to 41 days and, as of the end of April, it's shot up to 57 days. Recent indicators from the internal ORR report suggest the number is far higher now.
In Martín's case, there always seemed to be one more piece of paperwork that his sisters needed to fill out. Or an unexpected holdup when processing his case by ORR. Suddenly, what should have been as short a stay as possible turned into nearly six months of detention.
“The truth is, I am losing hope,” Martín says. “I don't think I will ever leave.”
And leaving doesn't always mean being reunited with one's family. Children like Martín can be moved to more restrictive, jail-like “secure” and “staff-secure” facilities on the barest of allegations that they may be dangerous or represent a flight risk. Attorneys say they've worked with children who have been transferred to these more secure facilities for simply saying that they “don't want to be there anymore” or that they wish they could go home.
Nor are migrant youth usually afforded an opportunity to challenge facility placement or incidents of abuse. Nor do they have the right to an attorney afforded people in the criminal justice system. Undocumented immigrants, including children, are permitted legal counsel but not guaranteed it by the government. Government-funded representation programs do exist, but have seen significant cuts by the Department of Justice.
Even for those fortunate enough to secure representation, relief is limited. Lawyers report being dissuaded from representing children on any issues outside of their case in immigration court for fear of losing ORR funding. ORR itself has been accused of outright barring government-funded service providers from challenging it on issues about facility placement, abuse from staff, or having sponsors arbitrarily declared unfit.
For would-be sponsors who hope to free a child from detention, the exit door appears harder and harder to pry open.
What was already a fairly complicated application process for immigrants has become even more difficult thanks to recent changes at ORR. Now, every adult in a potential sponsor's household must subject themselves to fingerprinting and immigration-status checks. Under an April agreement, fingerprints submitted to the office, along with any identifying information or biographical documents, are to be shared with Immigration and Customs Enforcement.
U.S. Department of Health and Human Services via AP
Because most sponsors are undocumented themselves, they and others in their home might fear submitting identifying information knowing that it will be shared with the agency responsible for rounding up immigrants for deportation. Enforcement officials at all levels, including former ICE Director Thomas Homan and Attorney General Jeff Sessions, have publicly voiced that no undocumented immigrant should feel safe from prosecution.
The number of children being released to their parents had declined before the fingerprinting policy was implemented, dropping from 60 percent in 2015 to 42 percent at the end of April. It's not clear how much of that was caused by a perception of the administration's get-tough rhetoric or by new difficulties in making their way through the process.
What is clear, however, is that this new fingerprinting policy is likely to have a chilling effect on sponsorship applications, according to Becky Wolozin, an immigration attorney with the Legal Aid Justice Center, one of the groups suing ORR.
“They're using kids as a dragnet to sweep the immigrant community,” says Wolozin.
Consider Ramón Sandoval, whose granddaughter Janeth was recently apprehended crossing the U.S.-Mexico border and transferred to a shelter facility in New York.
Ramón is willing to risk deportation to get Janeth back, but that might not be enough.
Ramón, who lacks legal status himself, lives with Maria (a housemate) and her two boys. Maria is also undocumented. She came to the United States more than a decade ago and, after working for years to save up enough to bring them over, her children eventually joined her.
Maria says she felt crushed by the weight of the decision of whether to send her fingerprints in with Ramón's application, knowing that they could make her a future target for immigration enforcement.
“[Janeth] is not my family, and that doesn't matter. I want to help her,” Maria says. “But I'm scared for my kids.”
After painful consideration and a discussion with an attorney, Maria ultimately decided to withhold her fingerprints. (Ramón, Janeth, and Maria have all had their names changed in this article to protect their identities.)
The only recourse available to Ramón is to submit just his own fingerprints and hope for the best. He has already been forced to move once because his former roommates were not willing to undergo the process, and time is running out for Janeth, who will age out ofORR custody soon when she turns 18.
Immigration agents have begun targeting migrant youth in ORR custody and transferring them to adult jails shortly after, or even on, their 18th birthday.
“If I don't do something, they'll deport my granddaughter,” says Ramón, who fears his application won't be processed in time. “I have to try.”
ICE has defended the practice of whisking away 18-year-olds, saying that they make arrests and custody determinations “on an individual basis based on the totality of the circumstances,” and do so “in compliance with federal law and agency policy.”
For ICE, which deported record numbers of undocumented immigrants during President Obama's first term but was largely more restrained by his orders during his second term, Trump's war on immigrants has effectively set the agency loose. But for ORR, the new policies have amounted to a perverse transformation. An office designed to be primarily concerned with the welfare of children is now tasked with balancing those priorities against the interests of law enforcement in a racist and xenophobic administration.
Trump's magnification of the threats posed by members of the street gang MS-13 sneaking into the country in the guise of unaccompanied minors has transformed the work of ORR's child welfare specialists into that of law enforcement agents.
Children's advocates have become partners to children's jailers.
There has been no kind of observable surge in gang affiliation among children crossing the border—only the one in Trump's head. Of the hundreds of thousands of unaccompanied minors apprehended at the U.S. border since 2012, fewer than 60 were suspected or confirmed of being affiliated with MS-13. Looking at criminal activity among children in government care more broadly, ORR found that only 1.6 percent of all children in its custody last year could be described as affiliated with gangs.
Even those estimates of gang affiliation should be viewed cautiously. There's no clear definition for gang affiliation under immigration law. Agencies like ICE routinely weaponize spurious accusations of gang involvement in order to detain and deport undocumented immigrants, who can be labeled a gang member for as little as wearing the wrong type of hat in a Facebook photo or being seen in the company of other youth suspected of membership.
Since Trump took office, ORR has formally expanded the criteria for secure facility placement to include any past gang affiliation among unaccompanied minors and announced plans last year to obtain additional secure beds to house a seemingly expected increase.
This new fixation with alleged gang activity has immigrant advocates worried. If ORR starts mistaking shadows for substance, as ICE and other enforcement agencies do, migrant youth will suffer, particularly vulnerable children who fled to the United States after being forced to join a gang in their country of origin.
This change of mission has taken a toll on ORR career employees. “People within [ORR] are absolutely demoralized,” says a former HHS official. “There's been an overall shift in how the administration sees immigrants. Kids and family members are viewed as criminals now.”
ORRstaff describe a top-down environment in the office, according to the official, where ideology supersedes effective policy and subject experts are excluded from major policy decisions.
Such a dynamic was on full display last year when ORR Director Scott Lloyd, by way of email, instituted a rule dictating that pregnant youth in ORR shelters were to be prohibited from obtaining abortions. The rule was struck down by a federal judge in March.
A policy change like that in Lloyd's email, according to the official, typically would require a drafting period within the office and then be published as part of the procedures manual, while allowing for training opportunities and conference calls to allow for questions and input from shelters.
Within hours of becoming ORR director, Lloyd also instituted a policy requiring his personal approval of any and all release decisions of children in secure facilities. The result was a bottleneck that delayed the release of hundreds of children in these jail-like facilities, in some cases for months.
In a deposition for a class-action lawsuit challenging the director-review policy, which a federal judge struck down with a preliminary injunction in June, Lloyd admitted to adopting the practice without conducting any kind of agency review. The only information he had considered before making the decision were news reports of migrant youth accused of alleged gang-related crime.
Lloyd's imperious behavior at the helm of ORR has brought to light a familiar phenomenon noted across the Trump administration. Namely, career employees grappling with whether to try to improve things from the inside and risk being complicit, or quit altogether and allow things to collapse.
In the case of ORR, staffers have opted to stay and try to limit the damage.
“People [at ORR] are struggling with whether or not to stay,” says the former official. “On the one hand, they don't feel that the administration is using the best practices for caring for kids. But on the other hand, they know how hard it is to backfill these positions and the strain it would put on the entire network if a lot of people were to leave.”
Additional strain could plunge the office into crisis. The number of children in ORR custody has increased by more than 400 percent from June 2017, putting bed space beyond maximum operational capacity, while the discharge rate continues to plummet.
The Administration for Children and Families, which oversees ORR, did not respond to the Prospect's request for comment.
