Brief: Immigration & Detention
March 1, 2019
A Catholic perspective:
The Texas Catholic Conference of Bishops supports laws which provide care for unaccompanied children (UAC) and alternatives to family detention.
The Gospel confirms God’s blessing upon families.[1] In imitation of Christ, Texas Catholics have long aided immigrants who are forced by violence or poverty to leave their homes, tending to both their material and spiritual needs.[2] We see and accompany many children and families who are fleeing violence and seeking safety; they need mercy and compassion, not derision or detention. Their emotional and spiritual wounds remain open without proper counseling and care.[3]
For these reasons, the U.S. bishops have consistently opposed family detention, noting that detainees are most frequently young mothers with children who should not be incarcerated as criminals.[4] Moreover, UAC should receive special care and protections to prevent their exploitation through human trafficking.
[1] Jn. 2:1-11; Lk. 15:11-32; Mk. 5:21–43, Mt. 8:14–17.
[2] USCCB, Strangers No Longer: Together on the Journey of Hope. § 41; Bishop Mark Seitz, Sorrow and Mourning Flee Away, 4, 12; CMS, Catholic Charities of the Rio Grande Valley. Catholic non-profits also provide immigration legal services in every major Texas city, from Houston to El Paso and Amarillo to Brownsville. Cf. Pope Pius XII, Exul Familia. 15, 20.
[3] Archbishop Gustavo Garcia-Siller, Official statement concerning immigration detention center in Dilley, TX. December 18, 2014.
[4] USCCB, Chairman decries opening of family detention center in Dilley, Texas. (December 16, 2014).
Law and policy:
UAC and families who present claims of asylum at the U.S. border are subject to conflicting federal court rulings and laws.
Court ruling: Under the 1999 Flores Settlement Agreement (FSA) between immigrant minors and the federal government, federal agencies are required to release all detained minors promptly unless detention is necessary to secure a minor’s appearance in court or to ensure safety.[5]
Law & agency policy: Federal law generally prohibits the detention of UAC and requires detention of accompanied minors in expedited removal.[6] Referring to this text, federal agencies maintain that the FSA should only apply to UAC and not accompanied minors.[7] Such a position would effectively prolong family detention.
To resolve this difference, the Department of Homeland Security (DHS) proposed new rules in September 2018.[8] If they are implemented, the FSA will terminate, thereby ending the difference between federal court rulings and law.[9] The proposed rules have negative effects for both family detention and UAC.
Family detention: Whereas the FSA requires family residential centers (FRCs) to be state-licensed, DHS’s proposed rules seek to establish third-party licensing.[10] DHS was seeking such licensing because no state licensing exists in Texas for an FRC to detain families; indeed, the Texas Family Code prohibits the secure detention of nonoffenders, including those held solely for deportation.[11] Nonetheless, Texas has sought to provide detention facilities a waiver, effectively allowing them to operate under the FSA’s licensing requirements.[12]
UAC: The FSA and federal law provide UAC special protections from assault and human trafficking. For example, detention with unrelated adults is prohibited and UAC may only be released to parents or guardians.[13] While DHS’s proposed rules maintain the release-to-parent requirement, they also allow for detention with unrelated adults.[14]
In sum, DHS’s actions would have negative effects upon both family detention and UAC. Texas’ licensing power provides the state with a means to ensure the health, safety, and welfare of children housed in FRCs. Such power should be used to its full extent. Yet the state has taken the remarkable position that a facility’s status as “secure” is immaterial; in the state’s eyes, detaining a child in a secure facility (i.e. a prison) has no bearing upon his or her health, safety, or welfare.[15]
Bill summaries:
- HB 67 requires the state to collect data about unaccompanied migrant children who reside in a facility licensed by the state. The TCCB supports this bill to provide an increased understanding of minors in the state's care.
- HB 855 requires a committee to review, analyze, and help improve licensing standards at facilities which house unaccompanied immigrant minors. The TCCB supports this bill because it would ensure adequate care for unaccompanied minors.
- HB 941 requires HHSC to develop a searchable database of child care facilities (including those housing UAC) so that Texans can learn about their state inspections, caregiver-to-child ratios, safety, and staff criminal background checks. The TCCB supports this bill which would increase transparency in the care provided to UAC.
[5] Flores Settlement Agreement (FSA), paragraph 14. However, the FSA does not require the release of parents. See: Flores v. Lynch 828 F.3d. 20-21 (9th Cir. 2016).
[6] 8 U.S.C. 1225(b)(1)(B)(iii)(IV); 83 Fed. Reg. at 45502; 8 U.S.C. 1232(b)(3); 83 Fed. Reg. at 45490.
[7] 83 Fed. Reg. at 45491, esp. note 4.
[9] FSA, paragraphs 9, 40; 83 Fed. Reg. at 45494. cf. 45490, 45491, 45495.
[10] FSA, paragraph 6; 83 Fed. Reg. at 45525.
[11] 83 Fed. Reg. at 45502-3; Texas Family Code, § 54.011(f).
[12] A state waiver would render DHS’s proposed third-party licensing unnecessary. This waiver was subject to a recently-resolved lawsuit. See: Texas Department of Family and Protective Services v. Grassroots Leadership 03-18-00261-CV. (December 2018)
[13] FSA, paragraph 11; 83 Fed. Reg. at 45502.
[14] 83 Fed. Reg. at 45525, 45529. DHS would allow for such detention in an “emergency.” The FSA defines “emergency,” but the FSA definition is vastly broadened by DHS’s proposed rules. See USCCB, Comments in Response to Proposed Rulemaking. (October 23, 2018) 9-10.
[15] 41 TexReg 1500 (February 26, 2016) Response 5; cf. 41 TexReg 1494, 1498; 26 TAC §748.7(b).