Philip G. Schrag - Baby Jails: The Fight to End the Incarceration of Refugee Children in America
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- Book:Baby Jails: The Fight to End the Incarceration of Refugee Children in America
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For decades, advocates for refugee children and families have fought to end the U.S. governments practice of jailing children and families for months, or even years, until overburdened immigration courts could rule on their claims for asylum. Baby Jails is the history of that legal and political struggle. Philip G. Schrag, the director of Georgetown Universitys asylum law clinic, takes readers through thirty years of conflict over which refugee advocates resisted the detention of migrant children. The saga began during the Reagan administration when 15-year-old Jenny Lisette Flores languished in a Los Angeles motel that the government had turned into a makeshift jail by draining the swimming pool, barring the windows, and surrounding the building with barbed wire. What became known as the Flores Settlement Agreement was still at issue years later, when the Trump administration resorted to the forced separation of families after the courts would not allow long-term jailing of the children. Schrag provides recommendations for the reform of a system that has brought anguish and trauma to thousands of parents and children. Provocative and timely, Baby Jails exposes the ongoing struggle between the U.S. government and immigrant advocates over the duration and conditions of confinement of children who seek safety in America.
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A powerful work that uses a rich combination of litigation documents, personal interviews, noncitizens stories, and case law to trace the development of child and family detention in the United States.Pooja R. Dadhania, Assistant Professor, California Western School of Law
A novel and thorough historical account of an issue of enormous importance. Geoff rey Heeren, Associate Professor and Director, Immigration Clinic, Valparaiso University School of Law
The publisher and the University of California Press Foundation gratefully acknowledge the generous support of the Anne G. Lipow Endowment Fund in Social Justice and Human Rights.
The publisher and the University of California Press Foundation gratefully acknowledge the generous support of the Lawrence Grauman, Jr. Fund.
Philip G. Schrag
UNIVERSITY OF CALIFORNIA PRESS
University of California Press
Oakland, California
2020 by Philip G. Schrag
Cataloging-in-Publication Data is on file at the Library of Congress.
ISBN 978-0-520-29930-6 (cloth : alk. paper)
ISBN 978-0-520-29931-3 (pbk. : alk. paper)
ISBN 978-0-520-97109-7 (ebook)
Manufactured in the United States of America
28 27 26 25 24 23 22 21 20
10 9 8 7 6 5 4 3 2 1
To the courageous children and families who flee persecution and torture in their homelands to seek safety in the United States of America
As the many endnotes to this book reveal, a great deal has been written about the long effort to end the detention of migrant children, though this is the first book-length treatment of the subject. It explores the issues by combining journalistic accounts with research done by nonprofit organizations, close analysis of court records, and interviews with key participants. I am grateful to all of the lawyers, journalists, and other authors who have documented the many dozens of moving pieces and thereby made it possible to reconstruct the history of the struggle. Constructing the backbone of the book depended, however, on my interviews with many of the nonprofit and former government lawyers who played important roles in the conflict. They each volunteered hours of their time to explain the sequence of events and the work they did. In many cases, they also shared documents that are quoted or cited in this work. The individuals whose cooperation was essential to this narrative included Cheasty Anderson, Michelle Bran, Bridget Cambria, Robert Doggett, Carol Anne Donohoe, Leon Fresco, Lee Gelernt, Denise Gilman, Manoj Govindaiah, Laura Guerra-Cardus, Lindsay Harris, Barbara Hines, Robert Libal, Cristina Parker, and Peter Schey. Carlos Holgun and Jennifer Lee also contributed valuable background information.
I am grateful for additional help from Pooja Dadhania, Mary Ann DeRosa, Geoffrey Heeren, Lisa Lerman, Michael Meltsner, Karen Musalo, Mabel Shaw, and Anna Selden. I appreciate the constant support of my Georgetown colleagues Andrew Schoenholtz and David Koplow. This book was inspired in part by the excellent case study of the legal battle against compulsory sterilization, In Reckless Hands , by my colleague Victoria Nourse. A special shoutout goes to Naomi Schneider, my wonderful editor at the University of California Press, who held my hand at every stage of this process and gracefully allowed me to expand the projected length of the book and to accelerate its production when, during the writing of this manuscript, President Trump suddenly turned the Flores Settlement from a term known only to immigration specialists into a household phrase.
I am pleased to acknowledge these individuals and institutions for granting permission to use their copyrighted images. Those images may not be reproduced further without permission from the copyright holders.
The INS detention center at the Mardi Gras Motel, 1985: Lisa Hartouni.
Judge Robert J. Kelleher: Gary Miyatake/Toyo Photography.
Carlos Holgun: Peter Schey.
The seizure of Elin Gonzlez: AP Photo/Alan Diaz, copyright Associated Press.
Dianne Feinstein: courtesy of the office of Senator Dianne Feinstein.
Prof. Barbara Hines: courtesy of Barbara Hines.
A family cell in the L. Don Hutto Family Residential Center: AP Photo/ L.M. Otero, copyright Associated Press.
Judge Sam Sparks: The Federal Lawyer . The photograph first appeared in a profile of Judge Sparks in the May 2010 issue of The Federal Lawyer .
Vanita Gupta: Courtesy of The Leadership Conference on Civil and Human Rights.
Michelle Bran: courtesy of Womens Refugee Commission.
Children in CBP custody in 2014: AP Photo/Ross D. Franklin, copyright Associated Press.
Judge Dolly Gee: Gary Miyatake/Toyo Photography.
Leon Fresco: courtesy of the law firm of Holland & Knight.
Family separation editorial cartoon: used with the permission of Jeff Danziger, the Washington Post Writers Group, and the Cartoonist Group. All rights reserved.
Cover photo, migrant child: AP Photo/Gregory Bull, copyright Associated Press.
In January 2019, many federal agencies were shuttered for weeks, federal services were curtailed, and 800,000 federal workers were furloughed because President Donald J. Trump refused to approve a budget plan unless it included funding for a wall between the United States and Mexico. In the midst of the turmoil caused by the closure of vital federal agencies, Trump sent a letter to Congress outlining the two most pressing legal changes that he wanted legislators to enact in order to deter people, including asylum-seekers, from trying to come to the United States. These were, first, to terminate the Flores Settlement Agreement, and, second, to amend the Trafficking Victims Protection Reauthorization Act (TVPRA) that Congress had unanimously passed, and that President George W. Bush had signed, in 2008. The Flores agreement is a 1997 legal settlement under which the United States had agreed not to jail migrant children for more than a few days. The TVPRA reinforced the Flores agreement by preventing the Border Patrol from holding unaccompanied children in its custody for more than seventy-two hours and by providing procedural protections for those who applied for asylum.
The Flores agreement and the TVPRA had limited, but not entirely ended, the incarceration of migrant children. The TVPRA required that the government transfer unaccompanied children promptly to the custody of the Department of Health and Human Services, which then reunited them with parents or other family members in the United States or, failing that, housed them in shelters where they were usually well cared for. But the TVPRA did not apply to accompanied children, those who arrived in the United States with a parent or other adult.
The Obama administration hired private prison companies to build two large jails in Texas for the mothers and children in these families. A court interpreted the Flores settlement agreement to mean that the children could not be incarcerated in those jails for more than twenty days. But the Trump administration wants to be able to jail these asylum-seeking families for years, until the backlogged immigration courts can hear their claims. It has sought, successively, to persuade Congress to terminate the Flores agreement, to get a court to reinterpret it, to repeal it by regulation, and to circumvent it by making Central American families wait for their hearings in Mexico rather than allowing them to enter the United States.
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