For-Profit Prison Companies Seek Child Care Licensing to Detain More Immigrant Children

March 7, 2016

Guest Blogger: Kathryn Culver, first-year law student, University of San Francisco:

In 2014 alone, over 60,000 unaccompanied minors crossed the U.S. border in search of refuge from the deep-rooted violence and despair they endured in their native Central American countries. Another 60,000+ families (mostly women and children) also arrived that year. The family units with children were immediately placed into custody by the United States Department of Homeland Security (DHS) and re-victimized by the inhumane conditions and procedures of immigration enforcement. At the border, there have been numerous accounts of children being handcuffed, strip searched, and placed into detention centers by DHS officials where they have spent months waiting for deportation hearings without access to legal representation or the opportunity to be released to a family member or guardian. Since 2014, thousands of children continue to cross the border every year thereby compelling the U.S. Government to create secure temporary placements for unaccompanied children before transferring them to the care of a trusted adult.

In the early 1980s, the Community Relations Service (CRS), a sub-division of the Department of Justice, was responsible for the custodial care of undocumented children and housed them in shelter-like facilities. However, when the Immigration and Naturalization Service (INS) received responsibility for the custodial care of unaccompanied children in the mid-1980s, INS began detaining children in secure prison-like detention facilities in order to advance INS’ goal of timely deportation of children back into the violence of their native countries. With deportation as the sole focus of detaining children, INS treated the children like criminals. Multiple Human Rights advocacy groups discovered INS’ failure to meet child welfare standards and instances of INS officials shackling minors, restraining access to adequate educational and recreational activities and forcing children to share dormitories and bathrooms with adults.

In response to the inhumane treatment of children, two human rights organizations: the Center for Human Rights and the Constitutional Law Foundation filed a class action lawsuit against the U.S. Government on behalf of all detained unaccompanied minors in the United States. The lawsuit resulted in the 1997 Flores Settlement agreement, which was “the first document to establish guidelines for the treatment of children in the immigration detention system.” The agreement also requires that all undocumented minors be released from INS custody to a “parent, legal guardian, adult relative, individual specifically designated by the parent, licensed program, or, alternatively, an adult who seeks custody who DHS deems appropriate.”

While this agreement was a tremendous victory for the human rights of immigrant children in the U.S., the lack of oversight and incentives for enforcing these standards has led to DHS’ failure to meet the guidelines and continual abuse of children in detention facilities. As a result, another lawsuit is underway to force DHS to implement the guidelines imposed by the Flores Settlement.

According to research by the Women’s Refugee Commission and the law firm of Orrick, Herrington & Sutcliffe LLP (Orrick), Immigration and Customs Enforcement (ICE) holds approximately 32,000 people in detention each day and about 300,000 each year. To accommodate the increase in detainment of immigrant children and families, “DHS has converted medium security prisons into immigration detention centers, created ‘family detention centers,’ and contracted with private prison companies such as Geo Group and the Corrections Corporations of America to manage many of these facilities.” In response to a Freedom of Information Act (FOIA) request, the researchers found that ICE has no records to show the number of children who have been detained at their facilities for more than three days. Furthermore, “the agency failed to provide any records regarding the numbers of children who remain in ICE custody.” The fact that no records on child detainment are being kept is of great concern to human rights advocates and researchers. Without records, there is insufficient data to analyze how the guidelines of the Flores Settlement were implemented (if at all). It also reveals how insignificant ICE views the lives of the immigrant children in custody. Without records, ICE takes no responsibility for ICE officers’ treatment of children and therefore provides no incentive to uphold basic standards of child welfare.

Texas is one of the U.S.-Mexico Border States most commonly affected by the influx of undocumented children. In Texas, “detention centers house as many as 2,000 undocumented women and children that were part of the surge of unauthorized migration that began last summer [2014].” In response to the pending lawsuit to enforce the Flores Settlement, for-profit private prison companies have begun seeking childcare licensing to protect their facilities from being shut down.

In May 2015, one of the for-profit prison companies that manage a family detention center for ICE in Texas received a childcare license from the state of Texas and another is seeking a license as well. People who are unaware of the history of deaths, lack of transparency, and poor living conditions within these detention centers may mistakenly believe that a childcare license would improve the quality of care provided to children in detention facilities. However, the reality is that children should never be in the detention facilities to begin with. In fact, placing children in detention facilities is contrary to federal law regarding the care of children out of family-based care. Providing childcare licensing to private prison companies will increase the number of children that can be detained thereby further isolating them from obtaining legal assistance and relatives already in the U.S.

The federal laws regarding standards of care for children out of family-based care clearly state that children should only be placed in institutional care as a last resort and only if that institution meets specific criteria. One of the Department of Health and Human Services’ (HHS) child welfare outcome goals is to “reduce placements of young children in group homes or institutions.” The reason for this goal is to abide by the requirements of section 203(a) of the Adoption and Safe Families Act of 1997, which created section 479A of the Social Security Act (SSA). HHS also believes in placing “children in the least restrictive environments and natural setting.” (Department of Health and Human Services Child Welfare Outcomes 2009-2012: Report to Congress).”

The SSA also limits the use of institutional care facilities for children in Section 472(c)(2), which defines foster family homes and institutions as: “’child-care institution’ means a private child-care institution, or a public child-care institution which accommodates no more than twenty-five children, which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing or approval of institutions of this type, as meeting the standards established for such licensing, but the term shall not include detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent.” (emphasis added). Therefore, according to the SSA, children may never be placed in detention facilities. However, the pressure felt by state government leaders to find a solution to the crisis of unaccompanied children entering the U.S. has coerced them into believing that institutional care for undocumented children is justifiable, which is a complete reversal of a long history of deinstitutionalization of children in the U.S.

The push for deinstitutionalization of children out of large-scale orphanages in the U.S. has a long history that dates back to 1941 as a result of the passage of the Social Security Act in 1935. While group homes with certain restrictions and licensing guidelines are still in existence around the nation, some states are slowly restricting group home use to children in transitional housing or in need of therapeutic services for mental illness.

Last October 2015, California Gov. Jerry Brown signed Assembly Bill No. 403, which “aims to drastically reduce the number of children placed in group homes as well as the length of time they spend in such placements, part of a package of reforms that will reshape the state’s foster care system.” As a result, many group homes for foster children across California are losing state funding, which has forced non-profit group homes to close. AB 403’s purpose is to “phase out the way treatment and services are currently provided at group homes by January 1, 2017, in favor of measures geared toward providing greater support to foster families.” In 2015, thirty-two group homes in Connecticut for mentally and developmentally disabled patients also have lost funding, thus forcing them to close.

The foster care of children in Texas, including group homes, was recently criticized by U.S. District Judge Janis Graham Jack who found that the Texas’ Child Care Licensing unit is inadequately keeping children safe, which has led to “‘child-on-child abuse’ at group homes and treatment centers.” In response, the federal judge is encouraging improvements to the foster care system in Texas and advocating for the “state to move children who do not have severe physical or behavioral impairments into the least restrictive settings possible.” The state must stop placing children in unsafe placements like “foster group homes that lack 24-hour awake-night supervision.” Although not all undocumented children are placed into the foster care system, the point is that allowing a dysfunctional state childcare licensing unit that cannot keep foster children safe to grant a childcare license to for-profit private prison companies is a breeding ground for more abuse and exploitation of immigrant children and families.

In summary, providing childcare licensing to for-profit corrections corporations is against public policy. The institutionalization of children in detention facilities is contrary to federal law and state efforts to move children out of group homes and into family-based care. Looking back to the Flores Settlement, shifting the approach from sheltering children to detaining and deporting children encourages immigration enforcement officials to view children as criminals and treat them as such. Therefore, it is clear that for-profit private prison companies who are vying for childcare licenses from state licensing units should not be permitted to detain more children. Instead, the billions of dollars the U.S. Government is spending on private-owned detention facilities should be invested in fixing the fractured U.S. foster care system to improve the care of unaccompanied minors and also into family reunification programs for both immigrant and non-immigrant children and families alike.