Skip to content

Request to Shut Down Unlawful Berks County Children Jail and To Revoke Unlawfully Issued License

Below is a request we sent out today to Pennsylvania State Authorities to shut down the Berks County Residential Center (“BCRC”)

BCRC is a secure detention facility under Pennsylvanian law, which also states that children under the age of 10 cannot be detained in a secure detention facility.

Given that BCRC does in fact detain children as young as 14 days old, it is violating Pennsylvania law and must be shut down.

Below is our request:

March 23, 2015

Dear Ms. Perry:

I am an attorney in New York who has represented various children who have previously been detained at the Berks County Residential Center (“BCRC”) located in Leesport, Pennsylvania.

As you know, Pennsylvania Code § 3800 governs the standards for licensing and regulation over child residential centers.

On October 31, 2014, Pennsylvania’s Office of Children, Youth, and Families (“OCYF”) issued a Certificate of Compliance for the BCRC as “Child Residential and Day Treatment Facilities pursuant to PA  § 3800, renewing its license until February 21, 2016.

However, OCYF had no authority to issue a certificate of compliance for BCRC because the latter is a “secure detention facility” under PA Code § 3800.5, which is “…any 24-hour living setting to one or more children…from which voluntary egress is prohibited” through one of the following mechanisms:

(i)   Egress from the building, or a portion of the building, is prohibited through internal locks within the building or exterior locks.

(ii)   Egress from the premises is prohibited through secure fencing around the perimeter of the building.”

In BCRC children are prohibited from leaving because of locks and guards prohibit their egress.

Even a mother who desperately wants to protect her 14 day old baby–and thus, a baby without any immunities to viruses and bacteria–from contracting a potentially deadly infection by leaving is physically barred from doing so.

As such, the license issued by OCYF to the operators of BCRC–the Berks County Commissioners–is unlawful because BCRC does not comply with the licensing requirements for a secure detention facility for children as set forth by PA Code § 3800.283.

PA Code § 3800.283(7) prohibits the placement of children 9 years of age and younger in a secure detention facility. Subsection 8 further states that: “A child may not remain in the facility longer than is absolutely necessary.”

PA Code  § 6237(e) further clarifies that the only time a child under the age of 10 can be detained is if that child is a “dependent child.” If detained, that child must then be placed in a shelter care facility, which is far less restrictive than a secure detention facility.

A dependent child includes children under the age of 10 who have been abandoned by their parents or guardians; have no parents; or have committed a delinquent act.

None of the children detained in BCRC are “dependent children.” Further, even children under 10 who are classified as dependent would be barred from placement in BCRC because it is a secure detention facility.

The Standards for Governing The Use of Secure Detention Under The Juvenile Act, PA § 200, contains additional robust protections against the detaining children whenever possible.

For example, even children 10 years and older cannot be placed in a secure detention facility unless that child has also alleged or been found to be delinquent. See PA Code § 200.1(a)

When a child is eligible for secure detention, subsection b of the same code states that detention is not mandatory and “forms of control short of secure detention…shall be given preference.”

BCRC is detaining non-delinquent children–including babies just a few days old–for one sole purpose: to permit Immigration and Customs Enforcement (“ICE”) to deport them and their parents.

Since June of 2014, BCRC has been detaining children for several months and in some instances up to one year.

It is substantially less than “absolutely necessary” for the Berks County Commissioners to detain children under the age of 10 in a secure detention facility for as long as it takes to deport them.

In fact, detention of children in BCRC is directly against their best interests because it harms their physical and mental health. OCYF’s licensing of BCRC is an act directly against the best interests of the children it is bound by law to protect.

Given that the BCRC is in direct violation of PA Code § 3800(7)-(8); PA Code § 200.1(a)-(b), and that it violates the entire legal and regulatory framework for child welfare in Pennsylvania by detaining children directly against their best interests, BCRC’s license must be revoked and BCRC must be shut down immediately.

Thank you for your prompt attention to this matter. If you should have any questions, please call me at 631-647-9701.

Very Truly Yours,

Bryan S. Johnson, Esq.

CC:

Pennsylvania Office of Attorney General

Attorney General Kathleen Kane

16th Floor, Strawberry Square

Harrisburg, PA 17120

Commissioners Office

Berks County Services Center

633 Court Street, 13th Floor

Reading, PA 19601

Request to Texas to Shut Down Unlawful Dilley Children Jail

Below is a request we recently sent to Texas State authorities to shut down the secure detention facility for children known as the South Texas Family Residential Center (“STFRC.”)

In researching the law, it became clear that Texas prohibits the placement of children under the age of 10 in secure detention facilities. STFRC detains children ranging from a few months old and up.

STFRC is subject to the jurisdiction of child welfare authorities in Texas. Therefore, Texas authorities are obligated to shut down the STFRC.

We also intend to write similar requests to shut down the Karnes  County and Berks County Residential Centers.

Dear Sir/Madam:

I am an attorney who represents a mother and a child who were detained at the South Texas Family Residential Center (“STFRC”) located at 1925 West Highway 85, Dilley, Texas 78017, which is owned and operated by Corrections Corporation of America (“CCA.”)

CCA is contracted by Immigration and Customs Enforcement (“ICE”) to detain children as young as just a few months old to 17 years of age.

I respectfully request that the Texas Juvenile Justice Department (“TJJP”) and the Texas Department of Family and Protective Services (“DFPS”) immediately close the South Texas Family Residential Center because it is not licensed or certified to provide care and custody of children by Texas State authorities, or any other authority.

The STFRC is a secure detention facility, which is defined as “any public or private residential facility that: A. includes construction fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in the facility.; and (B) is used for the temporary placement of any juvenile who is accused of having committed an offense, any nonoffender (emphasis added.)” See Texas Family Code § 51.02(14).

Pursuant to Texas Family Code § 51.03(e-1)(1), children under 10 years of age are prohibited from being placed in a secure detention facility.

STFRC is a secure detention facility because the facility is constructed to severely restrict the movements and activities of the children and adults held there. For example, guards and locked doors in the facility prohibit residents from leaving its premises.

Further, CCA and ICE control every aspect of a child’s life in its custody, including what a child eats; what, if any, medical care a child receives; what, if any, recreational activities the child partakes in; what hours the child is permitted to sleep; or what education the child is provided.

The fact that children in STFRC are accompanied by at least one parent does not negate the fact that CCA and ICE are the primary caregivers for the children in their custody.

A mother is completely stripped of her authority to make decisions in the care of her child. If a mother, for example, believes her child is depressed due to being detained, she is barred from making the clear decision that is in the child’s best interests—to have the child released from detention.

The South Texas Family Residential Facility Also Violates Section 4000 of the Texas Child Protective Services Handbook And 42  U.S.C. § 675

Although the STFRF is a secure detention facility, it also violates child protective services rules for the care and custody of children under the age of 10 in residential centers, which is any “facility that is licensed to provide foster care for 13 or more children at a time.”

Unless exceptional circumstances are present, residential centers are not recommended for placement of children. In fact, CPS “does not place children under five in group-care facilities unless doing so represents the only way to meet a particular child’s special needs.”

The Texas Family Code and CPS guidelines prohibit the placement of young children in severely restrictive settings because it is harmful to their physical and mental health. As evidence of this, all States in the United States prohibit the detention of children under a certain age in secure detention facilities.

Even when a child is placed in a more restrictive setting, such as a group home, federal law requires that “each child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available… consistent with the best interest and special needs of the child…” See 42 U.S.C. 675 of the Social Security Act.

Given that STFRC is in violation of Texas Family Code § 51.03(e-1)(1),  Section 4000 of the CPS Handbook and 42 U.S.C. § 675, the State of Texas must close down the facility immediately. CCA and ICE cannot obtain licensing or certification for STFRC because its purpose—to detain children under the age of 10 directly and to detain all children against their best interests—is in clear violation of both Texas State Law and Federal Law on the custody and care of children.

Indefinite, Long-Term Detention of Children in an Unlicensed, Secure Detention Facility For Purposes of Deportation From The United States Is Harmful to The Physical and Mental Health of Children

The case of our client Bernice illustrates why the operation of STFRC is so harmful to the children detained there.

Bernice, a young mother, was detained with her 4-year-old daughter in STFRC since late December of 2014 until March of 2015.

Bernice was eligible for release upon payment of a $5000 bond issued by an immigration judge in mid-February. She did not have the funds to pay for the $5000 bond.

When she requested a redetermination of the bond with ICE, she hoped the bond would be lowered so that she could be released from detention with her young daughter.

When she learned that ICE would not lower her bond, she attempted suicide. Her daughter was then and placed in temporary foster care near San Antonio, Texas, and ICE transferred the mother to an adult detention center in Laredo, Texas.

The 4 year old girl’s best interests were severely compromised due to ICE detaining her and her mom for a prolonged period of time. Her mother would never have attempted suicide if it were not for the desperation she felt for herself and her daughter. She could have lost her mother forever.

The doctor at the hospital told Bernice that she was mentally healthy and that her attempted suicide was a result of a temporary shock.

The fact that ICE controls the custody determination of children detained in the facility does not make it exempt from Texas State Law. STFRC must comply with the laws of the State where it operates.

ICE cannot operate STFRC because it is prohibited by Texas law.

Thank you for your prompt attention to this matter. If you should have any questions, please contact me at 631-647-9701.

Very Truly Yours,

Bryan S. Johnson, Esq.

Letters from Victims of President Obama’s Child Prisons.

As we have made clear in the past, the accounts our clients have given demonstrate that the U.S. government is committing serious crimes against several hundred children and mothers in its children jails located in Texas and Pennsylvania.

Recently, ENDDetention released a list of 13 letters from Mothers who have been detained for several months in the Karnes County Jail.

The letters contain evidence of crimes against children. Below are the relevant excerpts from mothers desperate at the harm their children are suffering in our jails.

I need help because I am worried; my son…is 12 years old. He’s in bad health he is at risk for diabetes and I can’t give him the diet he needs while in here. The doctor also told me he needs to drink a lot of water. However, there is a lot of chlorine in the water….I have few resources; I don’t have the money to be able to buy him purified water which they sell at the commissary…He no longer wants the horrid food they give us in here. He doesn’t eat anymore.

I’m worried, because my daughter is losing weight, because she doesn’t eat...I’m worried, because she could get sick…Please help us. I have already been in detention for seven months. My daughter is desperate, and so am I. The water has bleach in it, and I don’t have money to buy water from the store.

I am here with My son, who is 10 years old…They don’t give us medicine when we are sick. When we go to the doctor we have to wait for two hours or more, and when we are seen [by the doctor], they tell us to only drink a lot of water. They never have medicine for headaches, stomachache, body ache, fever and cough. There is not good attention here [at Karnes].

I can’t stand to be here anymore. I am desperate, I don’t like the food anymore, and I don’t want to be here. My son’s first birthday was here.

We have been in detention at the Karnes County Residential Center for six months. I need you to help me please, we suffer so much here, and my children do not like the food.

We are very sick. I do not like the physicians. They do not tell us the types of medicines they give us. Things happen here that worry us mothers and our children.

We have been detained for 7 months in the Karnes County Residential Center. And my children can no longer tolerate being detained. They do not like the food. It has already been a lot of time.

My children don’t eat because the food is terrible, the water when we drink makes our stomachs hurt and we get bloated. When I take some of my children to the doctor, it takes a long time for them to see the children, after an hour and a half they see us and tell the mother, “give him water”. If a child goes with diarrhea, they give him 2 bananas, and that is all. My son, 3 years old, has a problem with his eyes, he has been there months and they tell me, wash his eyes with warm water and apply a paste they gave me, but it does not work… My children ask me: “What is wrong mama, why don’t we leave?” I ask that you help us. We are not a threat for this country, all I want is refuge in this country for my children and for me.

Also we are afraid because of the Abuse of Power on the Part of I.C.E. They try to cover up everything that is happening here inside. For example:

A pregnant mother had left from here. A young boy was sexually abused and the worst is that we don’t know if they deported him or sent him to another center.

We have been here for 7 months. The children don’t want to eat. They are desperate. We need help, that someone outside fight for us so we can be freed.

I have been here since August 6, 2014, and whenever my daughter has a fever or feels sick for any reason at all, the only thing the doctors prescribe is water and apple juice. The food is always badly prepared and makes our stomach hurt. The worst thing is that a woman was raped by a GEO official and is pregnant. A Guatemalan guy was also raped in his own room. I myself was a victim of one of these officials who promised marriage to me.

In the beginning you eat the food, but later you don’t anymore, because it’s always the same. For example, for breakfast they give you eggs and bread and cereal, and most of us kids don’t eat the meal.

When someone is really sick, or feels bad, and goes to the doctor, they just give you an acetaminophen, or if not that, they tell you to drink enough water, but most of the time, they ignore you. Almost all of the babies get sick with colds or infections. Then the only thing they tell you is to run hot water in the shower, and they’ll breathe in the steam (supposedly that’s a treatment), but it’s more likely they are taking in a parasite, and get even sicker. A baby has to have a temperature of 104 before they will give you [cough] syrup or acetaminophen.

Children are literally wasting away in the President’s baby jails. These are serious crimes that are ongoing. It is time that President Obama be held accountable for being responsible for the harm these children have and continue to suffer because of his brutal creation of jails that are unfit–indeed, unlicensed–to care for children.

Executive Action backfires: Undocumented Immigrants Now At More Risk of Deportation

Federal Judge Hanen ordered a halt to all aspects of the November 20, 2014 “Deferred Action” memo, which included a clear order not to remove individuals who may be eligible for DAPA or expanded DACA.

The Obama administration has since been disingenuously insisting that the other November 20, 2014 “Priorities” memo will protect individuals eligible for DAPA from deportation.

The President’s claim that ICE officers who remove DAPA-eligible individuals will face consequences is false.

Here is why:

As a stand-alone directive, the “Priorities” memo specifically authorizes the removal of individuals who will be eligible for DAPA.

On page 5, subsection B, Johnson writes:

“Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein.”

It gets worse.

Patrick Taurel, writing for the American Immigration Counsel, wrote that “virtually every person who qualifies for either DACA or DAPA will not fall within the enforcement priorities and should not be priorities for deportation as long as the new enforcement policy is in effect.”

However, there are now no guidelines whatsoever on what factors should be taken into account by ICE in deciding whether to exercise prosecutorial discretion.

The Death of the Morton Memo

Prior to November 20, 2014, the controlling guidelines for prosecutorial discretion were laid out in a June 17, 2011 memorandum written by John Morton, the former director of ICE.

Morton included a list of  20 factors that DHS officials should weigh in deciding whether to detain or deport someone. Important factors included whether one was the immediate relative of a U.S. citizen or lawful permanent resident; a person’s ties to the community; the person’s ties to their home country; a person’s age, with particular consideration given to whether one is elderly or a minor; and a person’s length of time in the United States.

Johnson’s “Priorities” Memo rescinded the Morton Memo, which means that ICE officers now have no specific guidance on what to factors to consider in making prosecutorial discretion decisions.

Disappearance of a Prosecutorial Discretion Guideline

The “Priorities” memo is not designed to guide officers on prosecutorial discretion. In fact, Johnson’s version relies heavily on its predecessor, the March 3, 2011 “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens.” (“Priority 2″) memorandum.

The titles are identical and Morton cautioned that “additional guidance on Prosecutorial Discretion is forthcoming.”

When the executive actions were announced on November 20, 2014, the Obama administration erased the Morton memo and failed to include a replacement.

Given that it was a certainty that the “Deferred Action” memo would be challenged and potentially halted, the President should have issued an updated and more robust version of the June, 17 2011 Morton Memo on who should be protected from deportation.

It is not too late. The President must issue new and clear guidelines ordering ICE officials to immediately cease the expenditure of resources on removing individuals who may be eligible for DAPA and DACA

As Johnson and Obama have correctly pointed out, Judge Hanen’s order does not affect DHS’s ability to set and implement enforcement priorities. An instruction not to spend resources on removing individuals who fulfill certain requirements has nothing to do with the whether one is granted Deferred Action.

Otherwise, the fate of millions hinges on whether ICE field office directors believe their removal “would serve an important federal interest.”

If President Obama does not act to concretely stop the deportations of DAPA and DACA-eligible individuals, the Deporter-In-Chief will have executed his most cynical exploitation of immigrants to date: using the promise of Executive Action to gin up Latino anger at Republicans all the while continuing to destroy families with record deportations.

Judge Ordered DHS To Continue To Deport DAPA Eligible Individuals

In a recent interview with MSNBC host Jose Diaz-Balart, President Obama was asked how he would ensure that individuals who would be eligible for Deferred Action would not be deported in light of Judge Hanen’s February 16, 2015 injunction of DAPA and expanded Daca.

Obama responded: 

José, look, the bottom line is, is that if somebody is working for ICE and there is a policy and they don’t follow the policy, there are going to be consequences to it.  So I can’t speak to a specific problem.  What I can talk about is what’s true in the government, generally.

In the U.S. military, when you get an order, you’re expected to follow it.  It doesn’t mean that everybody follows the order. If they don’t, they’ve got a problem.  And the same is going to be true with respect to the policies that we’re putting forward.

The President is either not being honest or he did not read Judge Hanen’s order, which enjoined ICE from “implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program as set out in…Jeh Johnson’s memorandum dated November 20, 2014.”

Judge Hanen’s order is unequivocal: every aspect of the November 20, 2014 memorandum is frozen, including the critical part that instructed CBP and ICE to refrain from removing individuals who appeared eligible for DAPA or expanded DACA.

In other words, Judge Hanen ordered ICE and CBP to continue to remove individuals who are DAPA eligible if they do not fall under existing prosecutorial guidelines.

President Obama must issue a new order or memorandum to prevent DAPA eligible individuals from being removed from the United States.

Obama’s Rocket Docket For Unaccompanied Children Is Illegal

Last week, a federal judge ordered a preliminary injunction against the Obama administration’s policy of locking up all Central American mothers and children in order to send a message to other migrants that they should not come to the U.S.

A similar injunction may be possible to stop the Obama administration’s “rocket docket” policy of expediting the removal proceedings of all unaccompanied minors who entered the U.S. after 2014.

The rocket docket’s purpose is to send a message to future unaccompanied minors that they will be removed from the United States. The consequences of this policy are already apparent: more children are being ordered removed.

The reason more are being removed is basically two-fold: 1. Children are given less time to find an attorney to represent them; and 2. There are not enough attorneys–both private and non-profit–to accommodate  the volume of cases being pushed through the court at such an unprecedented pace.

As attorneys that are representing hundreds of children on the rocket docket in New York city, I have witnessed first hand how it has weakened the due process protections for all unaccompanied children, whether they have an attorney or not.

For those that do have attorneys, the latter are being pushed to the limit given the time constraints the rocket docket has created. We are not given substantial time to prepare cases for asylum, for example, and are unable to represent as many individuals as we would be able to if the cases were not being rushed so much.

The numbers back this up.

In FY2014, out of the 1208 uac cases decided who had an attorney, 16 % and 15 % resulted in a removal order and voluntary departure, respectively.

In FY2013, before the surge, of the 3710 cases decided who had an attorney, 9 % and 11 % resulted in a removal order and voluntary departure, respectively.

It gets worse. In FY 2014, of the 4778 cases decided without an attorney, 88 % and 2 % resulted in removal orders and VD orders, respectively.

For FY 2013, of the 4623 unrepresented uacs, 74 % and 4 % resulted in a removal order and VD.

The clincher is how many children are being left without an attorney at all in since the surge began. In FY2014, only 20 % of the 42857 pending cases had an attorney.

In FY2013, 46 % of  the 13,373 pending cases had an attorney.

The surge docket’s purpose is identical to the blanket detention policy: to send a message to future unaccompanied children from Central America that they will be deported if they come to the United States unlawfully.

The 2008 Trafficking Protection Law makes it clear that Congress intended to offer more procedural and substantive safeguards to unaccompanied minors from non-contiguous countries than anyone else in removal proceedings. 

8 USC 1232(a)(2)(D) of the TVPRA states that all unaccompanied children with exception to Mexicans and Canadians, must be placed in removal proceedings and provided access to counsel in accordance with subsection (c)(5).

(c)(5) is what renders the priority docket unlawful because it orders HHS to do all in its power to provide representation for all unaccompanied minors who were ever in HHS custody. Here is (c)(5)

 “The Secretary of Health and Human Services shall ensure, to the greatest extent practicable and consistent with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), that all unaccompanied alien children who are or have been in the custody of the Secretary or the Secretary of Homeland Security, and who are not described in subsection (a)(2)(A), have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking. To the greatest extent practicable, the Secretary of Health and Human Services shall make every effort to utilize the services of pro bono counsel who agree to provide representation to such children without charge.”

The rocket docket flies directly in the face of DHS and HHS’s statutory obligations because it’s purpose is the opposite: to prevent children from having counsel so that they can be deported from the United States.

Obama’s Executive Actions: Paid For With The Blood of Central American Children Refugees

karnes-action-oct-2014-kids

Deferred Action for the millions of individuals who will qualify under President Obama’s series of Executive Actions may have never been announced if it were not for the tens of thousands of children and young mothers who fled war zones of Guatemala, Honduras, and El Salvador in 2014.

In order to legally justify Executive Action, President Obama’s lawyers advised him that he could not ““‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc));”

At the same time, the Supreme Court of the United States has long recognized that the Executive Branch has broad discretion in whether to enforce the immigration law with respect to individuals in unlawfully present in the United States.

For the President to exercise discretion, he must be able to show there are more important priorities for enforcement of the immigration laws than the individual or individuals who are the beneficiaries of discretion.

Otherwise, the President would in effect be re-writing the laws and his actions could be construed as  abdicating  his responsibility to carry out his duties as the executive.

In DHS Secretary Jeh Johnson’s November 20, 2014 Deferred Action Memorandum, the importance of prioritization as a means to enable prosecution discretion was emphasized at in the very first paragraph:

“Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. “

The expansion of Deferred Action to several million undocumented individuals appeared to be huge victory for the immigrant community. But there was a caveat: Every person who unlawfully came into the U.S. after January 1, 2014 would be showered with the full might of DHS’s detention and deportation machine.

The New World: Where Deporting Children Is More Important Than Deporting Adults

Starting November 20, 2014, anyone who unlawfully entered the United States after January 1, 2014 is among the highest priority for removal from the United States.

Although Jeh Johnson states that these individuals “must be prioritized unless they qualify for asylum or another form of relief under our laws”, the reality is that the Obama administration is prioritizing everyone  in this category regardless of whether they qualify for relief under U.S. law.

Starting in August of 2014, DHS and the Immigration Courts created a special court to rush the removal proceedings of unaccompanied children as well as family units who unlawfully entered the United States after January 1, 2014.

Although close to 90% of unaccompanied minors in this special court are eligible for permanent relief such as Special Immigrant Juvenile Status or asylum, the Obama administration has decided that they should be removed anyway, and that they be removed now.

The Rocket Docket 

We represent close to 300 unaccompanied minor immigrants, many of whom are in the special immigration court.

We represent these children almost every day at the immigration court in Manhattan.

There are 3 judges in the New York court tasked with exclusively hearing the cases of unaccompanied minors and family units. The thousands of cases on these judges calendars were suddenly in effect administratively closed upon the motion of President Obama.

Additionally, most of the immigration countries in the country have been sent on special tours to serve as a judge for detained individuals near the U.S./Mexico border.

Just within the last couple of weeks, we were informed of what happened to the suspended cases: they were scheduled for the year 2019.

Adults who did not enter with children are having their deportations deferred to make room for the acceleration of deporting all children and family units who came to the United States unlawfully after January 1, 2014.

Government data makes it clear that an unaccompanied minor without legal representation has a approximately an 80 percent chance ordered removed from the United States. With legal representation, close to 80 percent were able to remain in the United States.

The end result is that over half of the children and family units who are eligible to remain in the United States may be ordered removed because there is not enough legal representation, both private and non-profit, available to meet the demand of representing tens of thousands of individuals within just a matter of months.

However, current U.S. law makes it impossible for President Obama to realistically deport even a small percentage of the tens of thousands of unaccompanied Central American children who entered the U.S. in 2014.

The “Rocket Docket” is a ruse because the purported goal is not achievable regardless of how much resources are spent on enforcement.

In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act, which greatly expanded procedural and substantive protections for minor immigrant children unlawfully in the United States.

Because of the change in law, the vast majority of the children that came both unaccompanied and accompanied in 2014 are eligible to remain in the United States as special immigrant juveniles or as asylees.

Moreover, DHS cannot expeditiously remove any unaccompanied children arriving from Central America because it must transfer every child to the custody of Health and Human Services (“HHS”) within 72 hours of apprehension. Once a child is in HHS custody, tHHS  must attempt to reunify the child with his or her parents or closest relatives living within the United States and give the child a right to a hearing before an immigration judge.

In other words, it is virtually impossible for the Obama administration to remove even a small fraction of the unaccompanied children who entered the United States in the year 2014.

Even if the Obama administration obtained a removal order for every child in immigration court in 2014, it would be practically impossible for ICE to enforce the immigration judge’s orders because conducting massive raids where children are arrested and ripped away from family would be a public relations catastrophe and a recipe for unspeakable child abuse.

So why is the Obama administration spending so many resources on deporting a class of individuals Congress has, through procedural and substantive changes in the law, declared to be undeportable?  To create a poor pretext for the legal justification behind the expansion of deferred action to millions of individuals.

When a child or baby comes with an adult, the Obama administration has not only been willing to spend millions of dollars, but also willing to criminally harm thousands of children and babies by locking them up in dangerous jails.

The Imprisonment of Babies

In October of 2014, top Senate Democrats, including Patrick Leahy, Harry Reid, Dick Durbin, and Charles Schumer, wrote a letter to President Obama expressing grave concerns regarding his decision to expand  and make family detention permanent. The Senators wrote that they believed the use of the Artesia facility and the refurbishing of Karnes County Detention Center was to be temporary.

The Senators emphasized that the construction of the new mega-jail–the biggest immigration detention in the country with a capacity of 2400 bed–in Dilley Texas made it look like the practice of locking up young children and their mothers would now be a permanent fixture in the United States.

The following excerpt summarizes the Senators’ position: 

We are troubled by your apparent decision to make permanent and greatly expand the policy of family detention against the backdrop of these problems.

We are also troubled by the decisions that are helping drive the demand for additional family detention beds, particularly the administration’s current practice of seeking expedited review and detention for all mothers and children arriving from Honduras, El Salvador, and Guatemala, regardless of their individual circumstances and asylum claims.

Indeed, the Senators had good reason to believe that the use of family detention was to be a temporary measure to address the unprecedented increase in mothers with children fleeing Central America for the United States.

In a July 31, 2014 press release, Jeh Johnson stated that Karnes and Artesia would  “…provide temporary facilities for adults with children while they undergo removal proceedings…”

But all along it appears that the Obama administration had turned the purported Central American immigration crisis in its favor as a launching board to legally justify an unprecedented expansion of deferred action for undocumented immigrants in the United States.

On September 22, 2014, ICE announced the birth of the South Texas ICE Detention Center located in Dilley, Texas.

The facility would ultimately be able to house up to 2400 human beings, all of whom would be adults accompanied by their minor children.

In December of 2014, Jeh Johnson spoke outside of the Dilley facility to announce its opening and ensured that the New York Times was present to hear his boss’s new priorities: refugee women and children would be the highest priority for detention and removal from the United States.

Mr. Johnson also ensured that the public knew that family detention would require the expenditure of significant resources: $296.00 a day for each individual. At its full capacity, the detention center would cost over $700,000.00 per day and nearly $260 million annually.

Only days later, ICE secured the expansion of the Karnes Jail from 600 to 1200 bed.  Karnes would cost approximately $355,000.00 a day and almost $130 million annually to operate at full capacity.

Therefore, the cost of family detention alone could run up to $400 million a year.

DHS’s 2015 budget elucidates how the Obama administration is buttressing the legal foundation to its executive action by a radical shift of resources from its regular detention and deportation business to that of the attacking the family unit.

For 2015, the actual number of detention beds was reduced by just over 10 percent from 34,000.00 down to 30,539.00. Yet at the same time the amount of beds for children and their mothers rocketed upwards from 100 to 3700 in less than a year.

Over 12 percent of the detention beds available to ICE in 2015 are dedicated to locking up babies, children, and their mothers. A year earlier, only 0.29 percent of ICE’s beds were allocated for the same purpose.

The cost of detention is only one part of the budget that is being reshuffled to detain babies and their children fleeing war zones in Central America.

Prioritizing Detention and Deportation Of Individuals Congress Intended To Protect

Over half of the children and their mothers from Central America who have fled to the United States in 2014 will be eligible to remain in the United States permanently under United States law through asylum and special immigrant juvenile status.

Yet the Obama administration has declared war on all of these individuals regardless of whether they are eligible to remain here permanently under our laws.

The justification behind the series of executive actions announced on November 20, 2014 is an abdication of the President’s statutory obligations. Against the intent of Congress–through its expansive legislation that aims to protect asylum seekers and children who have been abused, neglected, or abandoned–President Obama has unilaterally declared that this vulnerable group of people should be prioritized for detention and removal over that of individuals that Congress has not intended to protect through any form of legislation: specifically undocumented individuals with U.S. citizen or LPR children unlawfully in the United States.

The Just and Lawful Approach To Executive Action

Executive Action can still be done lawfully, but it requires a different justification.

The June 15, 2011 Prosecutorial Discretion memorandum (“Morton Memo”) was supposed to protect roughly the same individuals who stand to benefit from the expansion of deferred action: individuals with substantial equities in the United States with no criminal records.

However, the Morton Memo was for the most part a failure because the guidelines were not enforceable when applied to enforcement bureaucrats actions in the real world. Many of our clients were clearly eligible for prosecutorial discretion yet were denied because of  erratic enforcement in the field.

As such, enforcement resources were not being spent on ICE’s so-called higher priorities of individuals who were convicted of serious crimes or who posed a serious risk to the public safety.

The only mechanism that would truly enable ICE to ensure the effective expenditure of resources to remove high priorities for removal is a deferred action program, which eliminates the waste of money spent on that was spent on individuals who were not listed priorities for removal.

Given that Executive Action as it is currently written unlawfully justifies its the prioritization of resources to detain and remove individuals that Congress intended to protect from deportation, President Obama should immediately 1. End the practice of detaining babies, children and their mothers; and 2. End the special expedited deportation courts for unaccompanied minors from Central America.

Follow

Get every new post delivered to your Inbox.

Join 37 other followers