ICE has effectively ended long-term detention for migrant families, delivering a huge win to immigrant rights activists who for years had pushed for the move.
The move, which was made with little fanfare, was revealed in court documents earlier this month.
Long-term detentions have ended as the Biden administration faces another wave of migrant families, many of which in the past would have been held in custody for weeks until their cases were heard and they could be deported or, in rare cases, formally released.
Now, with long-term detention over, families are either held for a few days for processing or released outright at the border without any ICE detention. In either case, they are generally free to make their way deeper into the country with deportation hearings years down the line.
A facility in Berks County, Pennsylvania, has been emptied of all families and will be converted into a detention center for migrant women. Two other facilities in Texas remain open but now for only 72-hour processing.
Officials with U.S. Immigration and Customs Enforcement told The Washington Times that it wasn’t a grand gesture but rather a needs-based decision. With the surge of people and social distancing requirements during the COVID-19 pandemic, they didn’t have the space to hold people for the long term anymore. What space ICE does have needs to be used for people being tested and, if infected with the coronavirus, quarantined at the facilities.
“The reason why we made the change was in response to the current need, which was really being driven by the need to test folks as a result of the pandemic,” a senior agency official said.
ICE insists the policy isn’t permanent and says long-term family detention could be reinstated should conditions change.
“We’re keeping our options open. There may very well be a need once this pandemic is over to hold certain folks in custody to effectuate their removal,” the senior agency official told The Times. “I certainly wouldn’t take that off the table completely.”
Immigration groups said it’s about time long-term detention winds down. They argue that the facilities, known officially as Family Residential Centers, or FRCs, are no place for the children who end up there as a result of their parents’ decisions.
“Our communities do not need immigrant prisons; we need health and human services and freedom,” the Shut Down Berks Coalition wrote in an open letter to the Department of Homeland Security in celebration of the changes.
But Rep. James Comer of Kentucky, the top Republican on the House Oversight and Reform Committee, said the detention facilities were “crucial to maintaining law and order and protecting American citizens.”
“The Biden administration is caving to the radical Abolish ICE agenda by dismantling family detention facilities and placing illegal immigrants on a fast-track to be released into the U.S.,” Mr. Comer told The Washington Times in a statement.
The Berks facility opened in March 2001, two decades ago this month, with about 100 beds.
But family detention didn’t swell until the Obama administration, which faced the first family surge in 2014 and 2015 and responded by opening several more facilities and boosting detention capacity to more than 2,000 beds.
Migrants held in detention get faster hearings, usually in a matter of weeks. It takes years to hold hearings for those who are released. In most cases, the judge rules that there is no justification for allowing a family to stay, meaning the migrants are quickly deported.
When Central Americans saw family deportations, fewer of them made the journey.
Tae Johnson, then head of detention operations at ICE, explained the thinking in a 2015 sworn declaration to the U.S. District Court for the District of Columbia. He said the migrants told officers they knew they wouldn’t be detained but would instead be released and even be granted work permission.
“Detaining these individuals dispels such expectations and deters others from unlawfully coming to the United States,” Mr. Johnson said.
“A practice of general release encourages parents to subject their children to this dangerous journey in order to avoid their own detention,” Mr. Johnson told the court in his sworn statement.
He also said detention prevented gang members from being out on the streets and sapped money from cartels by drying up their flow of customers.
That forceful support of family detention is striking because Mr. Johnson is now the acting director at ICE, overseeing the dismantlement of the very system he once called crucial to stopping the kind of surge that is happening.
The ICE official who spoke to The Times said family detention changed five or six years ago after U.S. District Judge Dolly M. Gee and the 9th U.S. Circuit Court of Appeals ruled that families could be held for only about 20 days. Given that it took at least twice that to have an immigration court case completed, the 20 days meant families were released and their cases put down the priority list, allowing them to disappear into the United States.
“The situation has changed,” the ICE official said.
Once released, families are given court dates that are often years in the future. That gives them plenty of time to put down roots in communities.
Of more than 103,000 family migrants that arrived in 2016, 91% of them were still in the U.S. in of the middle of 2020, according to a Homeland Security report released in January.
Tom Homan, who served as acting ICE director under President Trump, said he expects the number of people showing up as families at the border to surge now that migrants know they won’t be detained long.
“Moving families through as quick as they can is just another enticement,” he told The Times.
Even with the new 20-day limit, he said, there is still a reason to hold families as long as possible, particularly during the pandemic.
“Within that 20 days, they’re able to get a full medical evaluation, children that needed vaccinations were getting vaccinations, there are pediatricians and doctors on site,” he said.
Mr. Homan rejected complaints that the detention facilities were inhumane. He said the centers have the highest standards in the industry.
Jessica Vaughan, policy studies director at the Center for Immigration Studies, which supports strict immigration enforcement, said she toured the Berks facility several years ago and was told some families didn’t want to leave at the end of their 20 days because of what the centers had to offer: free housing, meals, clothing, doctors, education for the children and plenty of entertainment options.