President Donald Trump’s administration’s adoption of a zero-tolerance approach to immigration policy in mid-2018 and the practice of family separation as a deterrence to illegal immigration has received significant public and legal attention. During the summer of 2019, detention centers received numerous visits by journalists and legislators as well as inspections from the Department of Homeland Security (DHS) Office of Inspector General which reported on the conditions of migrant detention centers and the well-being of inhabitants. In August 2019, the Trump administration tried replacing the Flores Settlement Agreement (FSA) which requires detained minors to be housed in state-licensed facilities for a finite time period. In March 2020, following a Centers for Disease Control (CDC) order, Customs and Border Protection (CBP) reportedly turned away 2,175 unaccompanied minors between March and June alone, saying it was to prevent the spread of COVID-19. More recently, on June 26 a U.S. District Judge ruled that the Trump administration must release child migrants detained for more than 20 days by July 17 which was later pushed back to July 27.
The July 2019 report from the Office of Inspector General (OIG) revealed that between October 2018 and May 2019 there was a 62% increase in the number of unaccompanied migrant children held in detention. In 2019, a record number of 69,550 migrant children were held in U.S. detention centers, more than any other country. According to a joint investigation by the Associated Press and the PBS series FRONTLINE, 42% of the migrant children held in 2019 were held in detention centers for longer periods of time than in previous years.
The Trafficking Victims Protection Reauthorization Act states that migrant children must be transferred to the Office of Refugee Resettlement within the Department of Health and Human Services no later than 72 hours of being under Customs and Border Control custody. The OIG report calculated that 31% of migrant children at these facilities had been held longer than the maximum of 72 hours.
Below is a chart comparing the number of unaccompanied children placed under the care of the Office of Refugee Resettlement during the past five years.
Unaccompanied children placed with ORR
Below is a chart comparing the length of detention in days for migrant children within the first four months of each fiscal year for the past three years.
Detention in days
||Length in Detention
Additionally, the ORR reports that in 2018 the program cost of taking care of unaccompanied children was $1.3 billion. This breaks down to about $250-$750 per child to house depending on the facility.
Policy and Litigation
The Flores Settlement Agreement (FSA) is a 1997 court agreement which limits the time migrant children can be held in detention to 20 days, sets the standards for detention centers and the treatment and release of migrant children, and establishes state licensing authority over detention centers.
In September 2018, the Trump administration proposed a rule seeking to terminate the FSA.
The DHS Office of Inspector General report, July 2, 2019, found overcrowding and prolonged detention in certain facilities, and that individuals, child and adult alike, were often wearing the same clothes they arrived in days or weeks prior, had limited access to showers or other forms of hygiene, dietary restrictions were being ignored, and more.
On July 9, 2019, the administration faced a lawsuit from 19 states and the District of Colombia, arguing it was inconsistent with the Flores settlement, violated state licensing requirements and put children at risk. The regulation was struck down in court with the decision citing the proposed regulation would violate the 1997 terms of agreement. The court ruled detention centers must provide minors with food, clean water, and basic hygiene.
In August 2019, the Trump administration issued a final rule to replace the Flores Settlement Agreement, eliminating the existing standards, protections and limitation on how long migrant families can be detained, and establishing alternative federally-run family residential centers in place of state-licensed facilities. This regulation was permanently enjoined by a federal judge in September of 2019 due to its inconsistency with and failure to meet the requirements set by the Flores Settlement Agreement.
More recently, it was revealed that while migrant children cannot be held for more than 20 days, DHS has been housing migrant children in hotels. Shortly after the Associated Press reported on the use of hotels to house migrant children, the children were removed from the hotels with no details on where they were being transferred. Opponents say the use of hotels in housing migrant unaccompanied children violates the federal anti-trafficking law that requires these children to be transferred to the Department of Health and Human Services in no longer than 72 hours. The ACLU has since filed a lawsuit to “stop the expulsion of children detained in hotel rooms by the Trump Administration under an emergency declaration citing the coronavirus”.
CBP has reportedly turned away asylum seekers, including unaccompanied minors, without hearing their claims, citing the need to prevent the spread of COVID-19 following the CDC order. In June, a CBP spokesperson told ProPublica that between March and June 2, 2,175 unaccompanied minors have been removed as a result of this order. Opponents claim these increased deportations of unaccompanied minors violate the Victims of Trafficking and Violence Protection Act of 2000 that allows unaccompanied children under the age of 18 to make an immigration claim and be transferred to the Office of Refugee Resettlement.
Additionally, in June 2020 citing the spread of COVID-19 in detention facilities, U.S. District Judge Dolly Gee ordered the Trump administration to release migrant children by a deadline of July 17, later extended to July 27. A D.C. federal judge ruled against the release, citing alternative safeguards for detainees’ health.
Several states, including California, Illinois, New York, and Nevada, have adopted bans on private detention centers. The ban in California (AB-32) was enacted citing the for-profit model of the detention facilities in opposition to California values. The ban resulted in the closure of four private detention facilities operated by ICE in the state.
- The District of Colombia has taken action through passing and extending the Standby Guardianship Law enabling “a parent, legal guardian, or legal custodian who is, or may be subject to an adverse immigration action, to make short-term plans for a child without terminating or limiting that person’s parental or custodial rights” D.C. Act 23-111.
- D.C. introduced a resolution (R 440) condemning the treatment of migrant children detained in federal detention facilities.
- The Pennsylvania State House of Representatives introduced a similar resolution, HR 512.
- Illinois adopted a resolution HR0343 in 2019 urging the state to divest from for-profit companies that contract to shelter migrant children.
Prepared by: Felicity Sanchez, NCSL Immigrant Policy Project summer fellow, 2020.
NCSL publications and state laws
- Unaccompanied Minors and the Flores Settlement Agreement: What to Know, NCSL Blog, Oct. 30, 2019
- Child Migration and Family Separation, NCSL, Dec. 11, 2018
- California AB-32, Oct. 11, 2019
- IL HR 0343, May 30, 2019
- D.C. Act 23-111, July 31, 2019
- PA HR 512, Sept. 24, 2019
Federal government and court actions
- CDC March 20, 2020 Order
- Flores v. Barr, August 15, 2019
- Flores v. Barr Decision, Sept. 27, 2019
- Flores Settlement Agreement, Jan. 1, 1997
- Management Alert – DHS Needs to Address Dangerous Overcrowding and Prolonged Detention of Children and Adults in the Rio Grande Valley, DHS Office of Inspector General, July 2, 2019
- Southwest Border Migration FY2020, U.S. Customs and Border Protection, August 6, 2020
- Texas Civil Rights Project v. Wolf, July 42, 2020
- Trafficking Victims Protection Reauthorization Act, Dec. 28, 2008
- Victims of Trafficking and Violence Protection Act of 2000, Oct. 28, 2000