Why Is the Obama Administration Keeping Toddlers Behind Bars?

Why Is the Obama Administration Keeping Toddlers Behind Bars?

Why Is the Obama Administration Keeping Toddlers Behind Bars?

Twenty-two women stuck in a legal limbo with their children are on a hunger strike in Pennsylvania.


Twenty-two mothers who have been interned with their children for up to a year in a for-profit immigration detention facility entered the ninth day of a hunger strike on Wednesday. Neither the mothers nor their children have committed any crimes, nor have they been charged with any. They have no idea when they will be released. Advocates and attorneys representing the women tell The Nation that their children are suffering, they feel that they’ve been lost in the system and their desire for freedom has become desperate.

The women and their children are housed six to a room at the Berks County Family Detention Center in Leesport, Pennsylvania. They share a bathroom with a short curtain but no door. They’re awoken at 6:30 every morning for the first of several mandatory check-ins. During the night, a guard shines a flashlight into their eyes every 15 minutes. Most of them are badly sleep deprived. Many of their kids are showing symptoms of early childhood trauma and other developmental problems; some have stopped growing. The youngest detainee at Berks is 2 years old, and has spent around half of his life in detention. Like the other children, he isn’t allowed to sleep in his mother’s bed at night.

They’re refugees who fled brutal violence in Central America and are now caught in a legal limbo. They were denied asylum after a cursory interview at the border and are subject to deportation. But attorneys representing them say that the screenings they went through at the border were legally flawed. The Obama administration claims that they have no right to appeal the decisions—a stark departure from longstanding legal precedent. They’re now being detained, indefinitely, while a legal challenge works its way through federal courts.

There’s no reason to hold them while that process plays out; according to a 2009 study by Human Rights First, asylum seekers under supervised release almost always show up for their hearings. Most are never put into the detention system in the first place; advocates say those who ended up at Berks were the tragic winners of a “wheel of misfortune.”

An independent psychological evaluation provided to The Nation by an attorney representing several of the detainees found that one typical 6-year-old boy at Berks “is suffering from PTSD, as evidenced by symptoms of anxious avoidance, hyperarousal, dysregulation, loss of appetite, and constant fear and worry.”

PTSD was caused by a number of traumatic experiences when he was living in El Salvador, which has been exacerbated by a number of distressing experiences that have occurred during his prolonged detention in the United States.… As his stay in detention has lengthened, his symptoms have escalated and become chronic in nature, as a direct result of his experiences there and the lack of appropriate mental health intervention.

Last year, a study of detained families—and those recently released from detention—in Texas found that similar problems were widespread. The researchers wrote that the stress of being locked up can have long-term adverse effects on both the physical and mental health of detainees, and that “children are at particular risk for developing long-term problems.”

The Nation spoke with a woman by phone from Berks whom we’ll call “Anna” (her lawyer asked that we omit any identifying information to avoid retaliation for speaking out about her situation). The young mother, a domestic worker in her early 20s, said that she made the arduous journey to the United States from a poor Central American country with her young son after “las maras” threatened to kill them.

Las maras are powerful criminal organizations that have wreaked havoc in Guatemala, Honduras, and El Salvador. They began as lethal street gangs that emerged among marginalized immigrant communities in the United States. Their members were then deported en masse to their home countries, where they’ve overwhelmed their governments’ ability to control them. Experts say they now represent a sort of ersatz government, controlling where and when people work and instituting curfews, dress codes, etc. “Violence is used by the gangs to control the population, and they target women and children because they can,” says Bridget Cambria, an attorney representing a 6-year-old boy who remains in detention despite the fact that his application for asylum has been approved. “If you’re fleeing not only because you’re in fear for your own life but also because you’re afraid for your children’s lives, you’ll sacrifice everything.”

Anna and her son have been locked up for around a year—she was first detained in a privately operated facility in Texas before being transferred to Berks. “My child often asks me how long we’re going to be here,” she says. “I don’t know what to tell him. I can’t stand being confined anymore. There are a lot of kids here, and the care that they get is horrible.”

Anna says that her son has an injury that causes him sharp pain when he walks, as well as some dental issues, but her repeated requests for treatment have gone unanswered. “They just tell us to wait,” she said. “They always tell us to wait.” She says that the women’s hunger strike is ultimately about their children’s suffering: “A lot of them don’t eat, they don’t sleep, and we just can’t take it anymore. All we want is our freedom.”

* * *

According to the Obama administration, the Berks mothers and children don’t exist; it claims that migrant children aren’t being detained for more than brief periods. Last year, a US district court ruled that the Obama administration was in violation of a 1997 judicial order known as Flores, which bars the government from detaining migrant children for more than a short period unless they pose a flight risk or a threat to national security.

Federal District Court Judge Dolly Gee found that there were “widespread deplorable conditions” at the Immigration and Customs Enforcement (ICE) agency’s family-detention centers, and ruled that ICE had “wholly failed” to provide “safe and sanitary” conditions for the children it locked up. She ruled that the government had to release the families as quickly as possible, and could only hold them for a period of up to 20 days, on average. On August 3, Homeland Security head Jeh Johnson told reporters that the administration was in fact complying with the order, and that turned out to be the straw that broke the camel’s back for the Berks mothers.

“When they heard Jeh Johnson’s statement, that was a catalyst,” says CarolAnne Donohoe, an attorney representing around two-thirds of the hunger strikers. “Several of the mothers and their children are now going on a year of detention, and I think facing that milestone made them think, we need to act. So these women are saying, ‘We exist. You can deny our existence, but we’re here. And we’ve been here for up to a year.’”

For the first four days of the hunger strike, ICE officials insisted that all the detainees at Berks were eating. In subsequent days, they acknowledged first that two of the women were striking, and then four; as of August 16, officials considered 16 of the 22 women to be hunger strikers.

The Madres Berks (as they call themselves) are caught in a constitutional standoff between the Obama administration and civil-rights lawyers. According to the ACLU, they were given a brief screening at the border known as a “credible fear hearing,” which is meant to determine if they have reason to fear for their safety if their application for asylum isn’t granted. In most cases, they had no access to counsel during these perfunctory interviews. According to The New York Times, “Court records show that asylum seekers have a very low chance of success without lawyers.”

All of the women were found to be credible, but were nevertheless denied asylum. The issue, according to Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, is that the women at Berks were denied asylum based on legally flawed screenings. “Either the wrong legal standard was applied, or there weren’t the proper procedural protections in place, or something else went wrong, legally, in their interviews,” he said.

The ACLU filed cases in federal court on behalf of around 30 people, including the Madres Berks, who they say were incorrectly denied asylum status at the border. The lawyers haven’t demanded that the courts release the detainees, they simply petitioned for a neutral court to hear their claims under a writ of habeas corpus.

Habeas corpus is the right to have your case reviewed by a court. It’s a fundamental liberty that is not only enshrined in the US Constitution but dates back to Magna Carta in the 13th century. Yet lawyers representing the government argued that the women weren’t eligible for habeas corpus relief because they were newly arrived immigrants with no real attachment to the United States. Civil-liberties advocates say this is a novel and extremely dangerous argument. According to an amicus brief filed in the case by 15 prominent legal scholars, “The Supreme Court has held that the Constitution ‘unquestionably’ requires judicial review in immigration cases, including where the government seeks to remove a noncitizen who has entered the country.”

“The reason this is such a big deal is that there’s never been a time in the history of the United States when someone who is already on US soil couldn’t obtain a habeas corpus hearing,” Gelernt told The Nation. “The whole history of habeas corpus has applied to both citizens and noncitizens. So this would be the first time in the history of the country that the government denies that right. If the government prevails, no asylum seeker who loses one of these screenings, no matter how erroneous the screening was, or how many procedural defects there were, would be able to go into federal court and get a neutral review of the process.”

The test case could take another year, or more, to be resolved. Meanwhile, all four attorneys interviewed for this story believe that the women are being punished for challenging the administration’s removal policy. “What we are beginning to conclude is that these women and young children are now being detained for months and months because they had the audacity to file a test case on whether their asylum hearings were legal,” says Gelernt. Bridget Cambria agrees that the government is “being punitive.”

The Madres Berks are also caught in a for-profit detention system that affects many more people than a few dozen asylum-seekers challenging their orders of removal. There are tens of thousands of nonviolent immigration offenders stuck in detention centers while awaiting a hearing.

Berks County Family Detention Center is the smallest of three facilities that house immigrant families with children. It’s run by the county for a reported $1.3 million annual profit, a significant sum in an economically depressed area. According to the Detention Watch Network, Berks is also one of a small number of publicly run facilities that has a contract with ICE that guarantees that the agency will maintain a minimum level of occupancy.

The other two are larger facilities managed by America’s leading private prison companies. The South Texas Family Residential Center in Dilley, Texas—“Dilley,” for short—is run by the Corrections Corporation of America, and the Karnes County Residential Center is managed by the Geo Group.

The three facilities are interconnected. “The for-profit facilities in Texas were immediately met with legal challenges,” says Adanjesus Marin, director of Make the Road PA, a local community group working to bring attention to the women’s plight. “When they started to get heavy criticism, they used the existence of Berks to justify what they were doing. They said, ‘Pennsylvania allows this and licensed it, therefore we’re not doing anything atrocious, we just haven’t gotten the proper licenses yet.’”

Dilley and Karnes are still locked in a legal battle to get licensed in Texas. Berks was licensed by Pennsylvania as a facility for juvenile delinquents and dependent children, but the state revoked its license earlier this year. A judge ruled that it could remain open pending an appeal by the county.

Berks had been “a temporary facility for families and children who were being placed—they’d be there for like a week or two and then they’d be released,” Cambria says. “But in 2014, it became a permanent detention center. And the reason that they can hold them longer here is that, unlike Dilley and Karnes, Berks supposedly has a license, even if it’s been stripped by the state.”

“Around the 20-day mark, if they haven’t been released from Dilley or Karnes, for whatever reason, they transfer [the detainees] to Berks so that it appears that they’re complying [with court orders],” says CarolAnne Donohoe. “Berks has become this no-man’s land where that 20-day period doesn’t apply.”

In 2009, the Obama administration stopped detaining immigrant families, but it resumed the practice when a wave of refugees from Central America made headlines in 2014. Officials believed that detaining and/or deporting would-be asylees would prove a powerful deterrent for others who might be considering making the perilous journey to the United States.

But, Lindsay Harris, a legal scholar at the University of the District of Columbia who toured Berks in February, says the policy has demonstrated no deterrent effect whatsoever. “They say they fear the floodgates opening, but there’s something that they’re missing,” she told The Nation. “The floodgates are already open. Repeatedly, these mothers have been pressured to give up their claims and go home, and they haven’t. They’ve chosen to remain in detention because what they face back home is so much worse.”

* * *

The Madres Berks and their children have spent up to a year caught between a rock and a hard place, and they may remain stuck there for months or years to come. The government has informed them that they can give up their claims and return home at any time, but they have good reason not to do so: According to an investigation by The Guardian, as many as 83 people sent back to Central America by the US government were murdered between January of 2014 and October of 2015.

CarolAnne Donohoe tells The Nation that the women are losing about a pound per day, are experiencing dizziness and headaches, but are staying strong. She says that the women “receive threats almost daily that their children will be taken away if they continue this,” but they aren’t intimidated. “They know their power.”

Bridget Cambria says, “The facility is now bringing in yummy food to tempt them. They bring coffee and place it in the social areas. They’re bringing in beef soup, brownies and pastries, and the staff eats the stuff in front them, commenting on how delicious it is. The ladies are not falling for it. They say that, if anything, they are glad this sacrifice is bringing better food for their children.”

One of the women got news on Wednesday that her asylum application had been accepted after her third interview and that she should be released in the next couple of days. According to Cambria, “After hugging her daughter, laughing and crying, she said she would continue the strike in support of her compañeras.”

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