What’s Next for Immigrant Families in Detention?

“I can’t stand being locked up here with my baby any longer,” a twenty-five-year-old mother from Honduras said.Photograph by Eric Gay / AP

In late June, Maria, a twenty-five-year-old mother from Honduras, sat on a wooden bench inside a trailer at the South Texas Family Residential Center, in the small oil town of Dilley. She held a colorful paperback Bible, the same one that she had travelled with atop trains and in trucks through Guatemala and Mexico. It was the same one that she had brought with her to the trailer weeks earlier, when a judge at the Denver Immigration Court had told her via televideo that she and her eight-year-old daughter, Hilda, had lost their case; failing an appeal, they would be deported from the United States. (The family members’ names have been changed.) “My daughter is not doing well here,” Maria had told the judge, according to court transcripts. “She’s hardly eating, and she’s really desperate.” Now, in the empty room, she lifted Hilda’s shirt, revealing a thick scar—traces of a brutal beating from the girl’s father. Then she pointed to her own wrist, made a cutting gesture, and told me, “I can’t. My little daughter.”

Maria and Hilda have been at Dilley since just after Christmas. It is the largest immigration detention center in the United States and is run by the nation’s largest for-profit prison company, Corrections Corporation of America. Almost all of the mothers and children here come from the Northern Triangle countries—Honduras, El Salvador, and Guatemala. Most, including Maria and Hilda, who fled their home because of extreme domestic and gang violence, are seeking asylum. (The facility sits on fifty acres of gravel and dirt about an hour and a half southwest of San Antonio, on the same strip of highway as a state prison and a set of oil-field workers’ quarters. Unmarked white buses and vans, used to transport detainees, are parked in one corner, and at the end of the lot is a row of trailers and a tan fence. Maria and Hilda haven’t been outside of it for seven months. Soon, though, they might get out, and for good.

Last Friday, U.S. District Judge Dolly Gee, of the Central District of California, ordered that any children in immigration detention be released, along with their parents, unless they can be shown to pose a significant flight risk or threat to the community or national security. Facilities like the one at Dilley, Gee wrote, violate the standard established by Flores v. Meese, in 1997. In that case, a legal settlement to a class-action lawsuit stipulated that the federal government must release immigrant minors into the custody of a relative or guardian, regardless of their immigration status, while they await trial; if no such person exists, then the child must be held in the “least restrictive environment” possible—a nonsecure facility run by a licensed child-care provider. “It is astonishing that defendants have enacted a policy requiring such expensive infrastructure without more evidence to show that it would be compliant with an agreement that has been in effect for nearly 20 years,” Gee wrote. “The order didn’t tell the government it was illegal—it was reminding them,” Jonathan Ryan, the director of the Refugee and Immigrant Center for Education and Legal Services (RAICES), told me.

Family immigration detention in prison-like conditions was without precedent in this country until 2006, when the Bush Administration opened the T. Don Hutto Family Residential Facility, also operated by C.C.A. Prior to that, families were served with a court notice when they were apprehended, then released to fight their cases. The government justified the policy change by arguing that Flores applied only to children who came to the country alone, not to those who were accompanied by adults. At Hutto, a former state prison forty miles north of Austin, women and children were kept behind razor wire and dressed in prison uniforms, emblems of the Administration’s tough stance on illegal immigration. (Margaret Talbot wrote about the facility in 2008.) In 2009, the Obama Administration stopped detaining families at Hutto and converted it into a facility for adult immigrant women only. (A preëxisting ninety-six-bed family center, in Berks County, Pennsylvania, remained open.) The Administration promised a “truly civil detention system,” as opposed to a criminal one.

Then, five years later, there was an about-face. With the spike in the numbers of families and children crossing the border with Mexico, last spring, the Administration reinstated family detention, and on a larger scale. Whereas Hutto had accommodated some five hundred people, two new centers in south Texas—in Dilley and Karnes City—would be able to hold about thirty-six hundred by the end of 2015. (There are now an estimated thirteen hundred detainees at Dilley alone.) The Department of Homeland Security argued that women and children who crossed the southern border illegally posed a threat to national security and could therefore be detained without bond, or with an extremely high bond. (One Salvadoran mother whom I corresponded with had her bond set at twenty thousand dollars, which she was unable to pay. Three weeks ago, after nearly twelve months in detention, she was deported.) In addition to improving public safety, the government contended, the new facilities would serve as a deterrent to further immigration. In February, however, a federal court in Washington ruled that reasoning unconstitutional. Gee, for her part, wrote that the Obama Administration has not presented “any competent evidence” to support its claim.

Gee’s ruling comes as a substantial victory for immigration advocates, particularly those who litigated against the opening of the Hutto center. Elora Mukherjee, a law professor at Columbia who was involved in the Hutto litigation and who, with her students, has represented families at Dilley, pointed out that both cases rely on precisely the same legal theory. According to Barbara Hines, the former co-director of the Immigration Clinic at the University of Texas School of Law and co-counsel in the Hutto litigation, Gee’s ruling shows that the government has known since last June, when it opened a temporary detention center in Artesia, New Mexico, that it was breaking the law. In addition to holding children in secure and unlicensed facilities, Gee argued that the Administration has been ignoring a crucial provision of the Flores settlement. Children crossing the border alone have been released to family members and guardians as they fight their cases, as the law states; children crossing the border with their mothers have been detained with them, in violation of the law. “Dilley is unlike anything I’ve ever seen,” Ilana Greenstein, a Boston-based immigration attorney who volunteers at Dilley and recently took on Maria’s appeal, told me. “I’ve never seen children in jail.” (U.S. Immigration and Customs Enforcement claims that its policy enables family unity, although adult men are detained separately.)

What will happen to Maria and Hilda remains to be seen. Gee gave the government until August 3rd to respond to her order and ninety days to present a plan, but there is always the possibility of an appeal. “We are disappointed with the court’s decision and are reviewing it in consultation with the Department of Justice,” Marsha Catron, a Homeland Security spokeswoman, said in an e-mailed statement. (ICE, meanwhile, is continuing to process new arrivals.) In any case, it is unlikely that hundreds of families will be released en masse. What is more likely—and what has already started happening—is that they will be released gradually, with ankle monitors. This presents its own challenges. “They’re often released as violently as they are detained,” Ryan said. “They’re dropped at the bus station in San Antonio, sometimes in the middle of the night, with a stack of papers, mostly in English.” Even for a native English speaker, immigration proceedings are difficult to understand. Without pre-release instructions, many women may fail to appear in court, hastening their deportation. And, without legal counsel, which they are not automatically entitled to, the chances of winning are slim to begin with. Statistics released this month by the Transactional Records Access Clearinghouse, a data-gathering center at Syracuse University, show that a woman with children is more than fourteen times likelier to be allowed to remain in the United States if she has representation.

In the meantime, Maria and Hilda spend their days and nights waiting. Hilda often feels ill and refuses to drink the tap water at Dilley, which she says is heavily chlorinated. (The same seems to be true at the Karnes detention center, where the water fountain in the lobby supplies what tastes like pure pool water.) “I think the government of the United States is very nasty to detain my daughter, because my daughter and I are not criminals or murderers. The only offense that got us locked up was to have crossed the river illegally to ask for protection in this country,” Maria told me in an e-mail on Tuesday. Hilda’s psychological state, she said, continues to deteriorate. “I can’t stand being locked up here with my baby any longer.”