As border apprehensions approached one million people in FY 2019—the most in 12 years—U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) raids in the interior continued, and the harsh conditions inside detention facilities drew new attention as children died of treatable diseases and allegations of abuse escalated.But 2019 also saw an administration on the defensive, with an immigration court backlog slowing decisions on asylum and other cases even as the President tweeted about apprehending and deporting “millions.”Yet despite a government shutdown that forced a compromise on the border wall and losses in court, the White House continued to push hardline immigration policies.
Immigrant children continue to be separated from their families
During 2018, the administration initiated a "zero tolerance" policy, directing federal agents to detain everyone not entering the country at a port of entry and refer all entry-related offenses for criminal prosecution.As a result, at least 3,000 children were forcibly separated from their parents at the border in May and June of that year, causing widespread public outcry.When the administration announced the end of its family separation policy in June of 2018, it seemed that the story was done: children, many of whom were too young to speak, were no longer going to be taken from their parents.
But between June 2018 and June 2019—one year after the announced end of the policy—911 more children, more than half of them younger than 10 years old, were taken from their accompanying adults and detained in shelters or foster care.By December, that number had risen to more than 1,100.
Of the children taken from their families under the “zero tolerance” policy, as of September 2019, about 2,200 had been reunited with a parent and around 600 more released “under appropriate circumstances” (including having turned 18 while in custody), while 27 still had nowhere to go.But in November, a U.S. Department of Homeland Security (DHS) Office of Inspector General’s report concluded that because CBP and DHS had failed to implement adequate procedures to identify and track immigrant families through processing, they couldn’t confirm that all family separations had been identified—and therefore couldn’t confirm the number of families that had been reunified.The report also said that even prior to zero tolerance, the U.S. Border Patrol was prepared to separate upward of 26,000 children from their families between May and September 2018, even though it knew it did not have the technology to track them or reunite them with their parents.Instead, the agency “adopted various ad hoc methods” of recording separations, which resulted in frequent errors.In fact, some estimates place the total number of children separated from their families under the current administration at more than 5,000.
The Flores agreement, signed in 1997 as part of the settlement of a class-action suit over migrant children’s rights, governs the treatment of children who arrive in the United States without an adult or who have been separated from their accompanying adult or family member, requiring them to be held in safe, homelike environments with access to care.Since 2016—but especially since 2018’s family separation policy—the administration has sought ways around the agreement.The Flores agreement was designed to expire in five years, but automatically renews unless the government writes and publishes regulations superseding the rules in it.In 2019, the administration finally turned its hand to writing the proposed regulations, which require judicial approval.The regulations as written would replace settlement provisions requiring minors to be quickly released to a family member or placed in a safe, homelike environment with rules permitting them to be detained indefinitely so long as they are with family members.In September, Judge Dolly Gee of the Central District of California rejected them and said the original Flores agreement would stand.The Trump administration has appealed.
Immigrants continue to die in detention as reports persist about harsh conditions and abuse
More than half a million people apprehended by ICE or CBP were booked into ICE custody in FY 2019, an almost 30 percent increase from FY 2018.And of those booked, more are being detained for longer: the average daily population in immigration detention soared under the Trump administration from 34,000 in 2016 to approximately 55,000 people in custody in August—a more than 50 percent increase—before it declined slightly in the last months of the year.
Immigration custody is civil custody and is not supposed to be punitive, a fact that the DHS Office of Inspector General reiterated in a June report finding “egregious violations of detention standards” in ICE facilities.More than two dozen people have died in ICE custody since 2016.(This count doesn’t include immigrants who have died in the custody of other federal agencies involved in immigrant detention, such as CBP.)
ICE detains immigrants it apprehends in a network of around 200 facilities nationwide, although it is difficult to say exactly how many because the list changes frequently and some facilities may temporarily provide beds.What is clear, however, is that an increasing number of these facilities have been found to be out of compliance with the standards for civil detention, with unsafe food, inappropriate use of restraints and disciplinary segregation, and lack of access to recreation or even showers.A report from the Southern Poverty Law Center and Americans for Immigrant Justice released in December detailed substandard conditions in four ICE facilities in South Florida—including inadequate medical and mental health care, a lack of accommodations for and discrimination against people with disabilities, and overuse of solitary confinement.There were also complaints in 2019 that ICE force-fed a group of hunger strikers seeking to draw attention to unsanitary and abusive conditions; some were placed in solitary confinement as punishment for their protest.
Detention is particularly harmful for those with mental illnesses.Some estimates place the number of detainees with mental illnesses at between 6 percent and 11 percent—while others say it is as high as 30 percent.Yet Politico reported in July that only 21 of the more than 200 facilities offered in-person mental health services—however minimal.And advocates say that people with mental illnesses are being handled without sensitivity to their specialized needs.In June, the American Immigration Council and American Immigration Lawyers Association filed a complaint on behalf of people detained in Aurora, Colorado, that included concerns about people at risk of suicide being placed in solitary confinement and people with mental illnesses being denied access to therapy and medication.
Conditions were also troubling for LGBTQ detainees. In September, 14 human rights groups, including the Southern Poverty Law Center, the National Immigrant Justice Center, and the National Center for Transgender Equality, called for the release of all LGBTQ detainees and anyone with HIV in the custody of ICE, as well as an investigation into the treatment of LGBTQ people detained at facilities across the country, citing improper medical and mental health treatment.In June, Johana Medina León, an HIV-positive transgender woman from El Salvador who had been detained at the Otero County Processing Center—already the subject of several complaints about poor treatment of transgender women in its care—became the second transgender woman to die in ICE custody in New Mexico within the space of a year.(ICE claims it granted her parole when it sent her to the hospital, where she died.)
But even as concerning as these conditions in long-term ICE facilities were, it was CBP’s detention centers meant to hold people only for shorter durations that dominated the news in 2019, as reports of filthy conditions, outbreaks of illness, lack of food, and children being held without access to basic hygiene items like soap and toothbrushes came to light.A troubling report released in February by the U.S. Department of Health and Human Services listed more than 4,500 complaints about the sexual abuse of children in youth detention by CBP from October 2014 to July 2018—859 of which were recorded between March and July 2018, roughly during the “zero tolerance” family separation policy.A December investigation by USA Today detailed lack of access to medicine and health care—even for emergencies like broken bones and recent surgeries.
Basic preventive care was also lacking. ICE and the Office of Refugee Resettlement are supposed to administer flu vaccines to people held for extended periods of time in facilities they operate.But CBP has claimed that it is exempt from this requirement since it holds people only in short-term custody until they can be deported or transferred to longer term holding facilities.(For example, the agency is only permitted to hold children for 72 hours, although it has routinely violated this mandate in 2019.) In 2019, at least three children died from the flu while under CBP care.In December, volunteer doctors who approached CBP facilities offering to administer free flu vaccinations were turned away—or even arrested.
ICE accelerates interior raids as border apprehensions reach nearly one million
ICE, the U.S. Border Patrol, more than 5,000 members of the U.S. military, and even national park rangers patrolled the country’s southern border in 2019, apprehending nearly a million people, the largest number since 2007.On the other side of the border, Mexico—motivated by threats from the White House—added military patrols to stop groups of asylum-seekers.
Meanwhile, interior raids continued, with mixed results. In July, the White House announced that more than 2,100 people would be targeted for raids and deportation as part of “Operation Border Resolve,” an ICE action targeting undocumented families throughout the country.But of those identified and targeted for removal, just 18 were arrested.Some attributed the lower number to the advance notice that allowed some advocates to launch an education campaign advising undocumented immigrants about their rights and others to shield targeted families.
DHS raids proved unpopular with many jurisdictions, and the year also saw a substantial backlash against ICE. New York in April and New Jersey in May banned ICE agents from arresting undocumented immigrants in state courthouses without a warrant—and New Jersey also limited its collection of immigration information, a move designed to stymie federal agents who frequently request immigration data from local officials.In December, the Boston City Council expanded its sanctuary city policy with a similar rule prohibiting police officers from sharing information with ICE on civil enforcement matters.The move came after reports that police had been working with ICE to apprehend undocumented immigrants despite city policies blocking some avenues of cooperation.
As local involvement in ICE enforcement decreased, the agency shifted tactics. Using data analysis and careful surveillance, it began infiltrating regions dependent on agriculture and fishing to quietly apprehend and remove longtime community residents.And advocates say that the use of ruses such as impersonating police officers and potential employers has increased.
More jurisdictions are seeking to limit their involvement in ICE detention as well. In October, Nashville, Tennessee’s sheriff said he would end the city’s contract to house ICE detainees in its jails as tensions in the city escalated between ICE and locals.Tennessee’s anti-sanctuary city law went into effect in 2019, and the city and state have already clashed over it.In Evanston, Wyoming, a new private prison run by CoreCivic and intended to house people captured by ICE is the subject of heated debates as the city council, local residents, and protestors clash over its construction.And in California, which passed a law in October banning privately run immigration detention centers starting in January 2020, ICE solicited year-end bids for at least four detention facilities in what advocates called “a blatant attempt to circumvent the law.”
But sanctuary jurisdictions also faced opposition. In July, the Ninth Circuit Court of Appeals held that the government could give preferential treatment to cities that cooperate with ICE in awarding community policing (COPS) grants.(In October, however, that same court ruled that the administration had exceeded its authority by refusing to award Byrne JAG grants to cities that did not provide immigration agents access to jails and information on incarcerated people.) In June, Florida joined Tennessee and 10 other states in banning sanctuary cities, threatening local law enforcement with penalties for failing to fully cooperate with federal immigration authorities.And a Tucson, Arizona, ballot measure that would have restricted police officers’ ability to detain people based on immigration status was overwhelmingly rejected in November.
Trump diverts money for border wall, but courts—and Congress—object
The year saw the administration continuing its attempts to secure funding for its border wall.At the end of 2018, the U.S. government shut down for what would eventually be 35 days over the president’s demanded $5 billion to fund the wall.A deal was reached in late January, but the compromise bill did not contain enough funding for construction.In February, Trump declared a national emergency along the southern border, which he said allowed him to redirect taxpayer money from other accounts to build the wall.(His plan was to divert $2.5 billion from a Pentagon program for countering drug activities and $3.6 billion from military construction accounts.)Despite unusually bipartisan attempts by Congress to pass resolutions cancelling the emergency declaration, the president continues to veto the resolutions, and opponents have been unable to garner enough votes in the Senate to override his vetoes.
In December, a federal judge in the Fifth Circuit issued an injunction preventing the administration from repurposing military construction money; a decision reversed by the Fifth Circuit Court of Appeals a month later.Federal judges in the Ninth Circuit had prevented the use of Pentagon drug program money via a series of injunctions, but U.S. Supreme Court decisions in July and December allowed the government to use those funds to continue construction while the litigation was proceeding.Private landowners along the border also have filed numerous additional lawsuits to stop or slow construction.
In late October, construction began on the first new section of border wall, about eight miles of fencing in the Rio Grande Valley estimated to cost $167 million.Of the 500 miles of border wall promised by the end of 2020, just 100 miles have been erected—mostly replacements for existing sections of border barrier.
More jurisdictions are providing critical legal help to people facing deportation
By the end of FY 2019, there was a backlog of more than one million deportation cases pending in immigration court, nearly double the number pending at the end of fiscal year 2016.As immigration arrests and detention have soared, more communities across the country launched legal defense programs in 2019 to assist those facing deportation. Yet unlike in the U.S. criminal justice system, immigrants facing deportation do not have the right to government-provided counsel if they cannot afford a lawyer—even though the U.S. government is always represented by counsel. As a result, most people fighting for their lives in immigration court—including 70 percent of people in detention—must navigate the complexities of immigration law alone.But research has shown that immigrants who are represented are 3.5 times more likely to be released from detention on bond and up to 10 times more likely to establish a right to remain in the United States.Although a bill was introduced in the U.S. House of Representatives in July to provide representation for certain high-priority asylum seekers, it seems unlikely to ever leave committee.
But the movement for universal representation for immigrants facing deportation is growing. More than 35 communities in 18 states, including 18 communities in the Vera Institute of Justice’s Safety and Fairness for Everyone (SAFE) network, have funded deportation defense programs.In 2019, state and local jurisdictions continued to lead the way in allocating funding for immigrant legal services. In October, Oregon launched the first program in its state-funded legal defense effort for people facing deportation, allocating $2 million to the Equity Corps of Oregon.New York State included $10 million in its FY 2020 budget to support the expansion of universal representation in the state.And in May, Fairfax County, Virginia, established a legal representation fund for immigrants, earmarking $200,000 for a comprehensive universal representation pilot program.
But another battle over representation—whether children will be forced to represent themselves—is still being fought during the same year in which the administration deported its youngest-ever separated child, four-month-old Constantin Mutu.The Ninth Circuit Court of Appeals took the rare step of withdrawing a 2018 three-judge decision in C.J.LG. v. Sessions that children are not entitled to counsel in deportation proceedings so that the case could be reheard by all 11 judges in the circuit sitting en banc.In May, the full court ultimately avoided the question, ruling that because the judge in the initial immigration hearing had failed to notify the teenage plaintiff that he might be eligible for Special Immigrant Juvenile status, the question of whether he was entitled to counsel was moot.