Reform of Immigration Detention Policy – Don’t Forget the Kids

Posted on October 8th, 2009 by Katherine Franke

NapolitanoThe Department of Homeland Security announced this week that it was revamping its immigration detention policy by making it more human and treating people accused of immigration law violations less like criminals.   Speaking to the New York Times, Homeland Security Secretary Janet Napolitano said:

“The paradigm was wrong,” Ms. Napolitano said of the nation’s patchwork of rented jail space, which has more than tripled in size since 1995, largely through Immigration and Customs Enforcement contracts for cells more restrictive, and expensive, than required for a population that is largely not dangerous. Among those in detention on Sept. 1, 51 percent were considered felons, and of those, 11 percent had committed violent crimes.

“Serious felons deserve to be in the prison model,” Ms. Napolitano said, “but there are others. There are women. There are children.”

These and other nonviolent people should be sorted and detained or supervised in ways appropriate to their level of danger or flight risk, she said. Her goal, she said, is “to make immigration detention more cohesive, accountable and relevant to the entire spectrum of detainees we are dealing with.”

“There are women, and there are children.”   Of course, all people caught in the immigration surveillance immigration-9net ought to be treated humanely – regardless of their sex or age.  But the system Napolitano seeks to reform has had particularly harsh consequences for what immigration officials call “unaccompanied” children.  According to Columbia Law student Carrie Acus Love who has studied this problem, “Children make up a third of all immigrants to the United States each year.  Many arrive as refugees fleeing war, violence, persecution, or torture in their home countries.  Others come seeking economic opportunities or a better way of life. They range in age from infants to teenagers, they often have very little education, and few speak English.  Some enter the country alone, while others arrive accompanied by a parent or other adult family member.”

detention2Love has written a very good article addressing the particular needs of “unaccompanied” minors caught in the immigration system, and makes concrete reform proposals: Balancing Discretion: Securing the Rights of Accompanied Children in Immigration Detention.  I’ve sent a copy to Secretary Napolitano.  Let’s hope she reads it.  The abstract of the article is:

This article explores the treatment of “accompanied” children-those who are detained as part of a family unit-within the U.S. immigration detention system. Investigations of the T. Don Hutto Residential Center in Williamson County, Texas, and the Berks County Shelter Care Facility in Leesport, Pennsylvania, suggest that the human rights of children being detained in these facilities are routinely violated. Further, the violations do not represent unique departures from the norm, but stem from routine practices and policies instituted at a systemic level.

This article argues that the underlying detention framework’s excessive reliance on administrative discretion has created openings for these human rights abuses. The over reliance on discretion permeates decision-making in four areas of the detention framework: (1) the detention standards, (2) administrative agency management, (3) detention facility actions, and (4) facility staff members’ conduct. This article acknowledges that some amount of administrative discretion is inevitable to give an agency the flexibility it needs to fulfill its congressional mandate. With regard to the detention of accompanied immigrant children, however, the current framework has not reached the correct balance. Instead, it has conferred upon the agency a dangerously inflated amount of discretion. Only by appropriately cabining agency discretion-through comprehensive legislation and congressionally mandated regulations- will the U.S. be able to ensure that the rights of the immigrant children in its custody are protected.


  1. "Gender ‘ Sexuality Law Blog » Blog Archive » Reform of Immigration …" #immigration

  2. "Gender ‘ Sexuality Law Blog » Blog Archive » Reform of Immigration …" #immigration

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