A strident ruling out of the federal district court for the central district of California is resulting in major changes to Immigration and Customs Enforcement (ICE) policy concerning the detention of women and children. On August 21, 2015, Federal Judge Dolly Gee ruled that the ICE/DHS policy of housing detained women and children, spread between 3 national facilities (two in Texas, and one right here in Berks County – The Berks County Residential Center) is essentially unlawful for being inhumane and repugnant to the values of the United States. As a practical matter, the force of this ruling is likely to result in the closure of these 3 facilities as the business of each is primarily (if not entirely) about detaining woman-run family units.
Interestingly, the decision itself is not especially controversial, by any measure. Rather, what Judge Gee has effectuated is a clarification and strict enforcement of an almost 20 year old Class Action Settlement Agreement/Consent Decree (Flores v. Reno) that had already established many of the findings that Gee reiterated as a basis for the court’s ruling. What does shock the conscience is the fact that after almost 20 years, the changes mandated by the earlier Decree have largely been ignored by the Defendant parties charged with enforcement.
By way of a brief history, the class action law suit which resulted in the Consent Decree was first filed in 1985 and class-wide settlement was approved in 1997. See Flores v. Reno Settlement Agreement here. In February of 2015, class representative, Ms. Flores, on behalf of the class (which includes all minors presently in ICE custody) sued to enforce the Agreement. Plaintiff class prevailed; the government requested reconsideration but, in August, the court firmly rejected the government’s request. See Federal District Court Ruling here.
To give some specific examples of the realities of family-detention that prompted the Plaintiff class to motion for enforcement – women and children in immigration family detention are customarily held in deplorable conditions wherein families are placed with or in close proximity to members of jail populations, unnaturally separated from each other during the term of a detention; that government facilities are not appropriate places for detaining minor children and their parents, long-term; provisions for the transfer of such detainees from government facilities to licensed care-taker facilities, as first mandated by the 1997 Agreement, should be made within 3-5 days but is typically frustrated by ICE’s current “no release” policy. Further, and as recognized by the federal district court and again contrary to ’97 Agreement, ICE/DHS typically make little or no effort to place minor children with family members of legal status pending such child’s Immigration Court determination.
The initial Agreement gave no firm deadline for government compliance and it is clear this failure was fully exploited as neither INS nor (its predecessor) ICE/DHS have abided by any of the terms. The reality of what has happened (or, more accurately, not happened) since then speaks to Immigration Authorities’ inexplicable contempt for the Decree. Therefore, district court Judge Gee was adamant in setting a firm deadline this time around – October 23rd, 2015.
This has left the ICE administrators of the respective facilities, scrambling. The two Texas facilities (Karnes County Residential Center and South Texas Family Residential Center) are significantly larger than their Berks County counterpart which is presently equipped to house 96, and both Texas facilities are now attempting to privatize (and therefore circumvent the court ruling). Concerning the Berks County facility, the Pennsylvania Department of Human Services (DHS) seems resolute in giving full force to the ruling this time around, making up for the 20-years of the government’s blithe defiance – Last week, on Thursday October 22nd, DHS issued a letter to the Berks County facility, rejecting its request to expand to a maximum occupancy level of 192. Furthermore, in that same letter, DHS has also evidently threatened imminent closure of the facility for being out of compliance with the court ruling.
As with so many things litigated, there may yet be another twist or two to the story before the true fates of these family detention centers are set. At the moment, the government has appealed the decision to the 9th Circuit Court of Appeals. However, no stay on the district court ruling has been requested – meaning the holding is law and the compliance deadline has come and gone.