1. Update
  2. Immigrants & Refugees

Responding to the Threat of Increased Family Detention

By Hannah Graf Evans, September 12, 2018


In May, the administration started systematically separating children from their parents as families sought safety and asylum at the U.S.-Mexico border. Now, as the administration scrambles to reunite all children with their parents, they are moving toward a new policy: jail families together, indefinitely.

Family separation was avoidable. It happened because the Trump administration made a choice: criminally prosecute mothers and fathers traveling with children, jail the parents in facilities in which children cannot be held, and funnel their kids into a federal care system meant for truly unaccompanied children.

The administration implemented this “zero-tolerance” prosecution policy with no plan for reunification, no warning to the agency that cares for unaccompanied children, and did so after receiving warnings about the adverse impacts of family separation.

There is compelling evidence that detention has harmful, long-term impacts on children and survivors of trauma, but that isn’t stopping the administration from turning to family detention as its alternative to family separation. To expand family detention however, the administration must change existing child welfare protections.

The Flores Settlement Agreement

The 1997 Flores Settlement Agreement sets minimum detention standards for migrant children. Flores requires the government to prioritize a child’s welfare when it assumes custody to protect children from inappropriate and unsafe conditions. With rare exception, children must be released from custody without delay, preferably into the care of a parent or family member. If they cannot be released from custody, they must be held in the least restrictive and most appropriate setting, generally a facility licensed by a child welfare entity.

In 2015, a federal judge ruled that President Obama’s newly expanded practice of detaining Central American families together violated the child protection principles outlined in Flores. She ruled that children cannot be held in a restrictive, unlicensed facility for longer than 20 days. It required the administration to end the practice of long-term detention of migrant children, even with their parents.

Endangering Kids

The Trump administration wants to undo key parts of Flores to hold more children in detention centers. On Sept. 7, the administration filed a proposal to override aspects of Flores. It allows the Department of Homeland Security to self-license and inspect their own facilities to detain children past 20 days. This proposal will be challenged in the courts.

Meanwhile, some members of Congress are pushing to undermine these child welfare standards. A policy rider on a draft spending bill in the House amended Flores in similar ways as the proposed rule. A bill (S. 3093) in the Senate – with nearly 40 Republican cosponsors – would allow children to be detained indefinitely under the guise of solving family separation.

Make sure your members of Congress hear from you: Children should never be detained, with or without their parents.

Expanding Immigration Detention

At the same time, Immigration and Customs Enforcement (ICE) has asked Congress for more money to keep individuals and families behind bars. Congress is considering pouring billions into additional immigration detention. If Congress allocates this money, they will pave the way for even more people – including children – to be funneled into detention with devastating results.

Act Now

Ask Congress to reverse course. Urge them to:

  1. Reject attempts to incarcerate children, with or without their parents. Flores and child welfare protections should be strengthened, not avoided.
  2. Reject all additional spending on detention, even in a short-term spending bill.
  3. Invest in and direct the administration to use community-based alternatives to detention, such as the Family Case Management Program.

Use the resources below to act and contact your members of Congress today.

Action Alert Invest in Alternatives to Detention As a Solution to Family Separation 

Ending family separation does not mean that we must expand family detention.

Legislative Ask Stop Incarcerating Children and Separating Families 

Reject legislation that expands family detention. Instead, increase oversight of immigration and border enforcement, cut funding for deportation and detention, and invest in community-based alternatives to detention.

Hannah Graf Evans

  • Legislative Representative, Immigration and Refugee Policy

Hannah Graf Evans lobbies for compassionate immigration policies. Our immigration system should empower immigrants and the American communities to which they belong, lift up the voices of border communities, and ensure adequate protections for refugees, asylum-seekers and victims of trafficking. Hannah co-chairs the steering committee of the Interfaith Immigration Coalition, made up of over 45 faith-based organizations.