How states can improve America’s immigration system

by John Hudak and Christine Stenglein

There is no question that the United States is facing a humanitarian crisis at the southern border. As waves of immigrants and asylum seekers, largely from Central America, attempt to enter the U.S., hundreds of thousands are being detained by Border Patrol. The numbers have quickly exceeded the capacity of Border Patrol holding facilities and created a massive backlog, as those individuals wait to be transferred to Immigration and Customs Enforcement (ICE) or the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) custody. The result has been deplorable conditions in which facilities are filled far beyond capacity, with some individuals enduring weeks or more without basic necessities like access to showers or changes of clothes.

It is clear to any rational observer that America’s immigration system is broken and that the federal government’s response has been grossly insufficient. In protest, some governors and state legislators are working to prevent new detention facilities from being built in their jurisdictions. However, by enacting regulations to improve facility conditions, bolster transparency, protect whistleblowers, and draw attention to gaps in federal policy, state leaders have an opportunity to craft more humane immigration policies and processes and improve our immigration system from the ground up.

The crisis in America’s immigration system

Individuals who are detained while entering the United States are subject to a clear administrative process, or at least they are supposed to be subject to it. Dire economic and rule-of-law problems in the Northern Triangle countries of Central America, coupled with the Trump administration’s zero-tolerance immigration policy, have led to the current border crisis at a magnitude unseen in prior administrations. Disturbing images have increasingly confronted Americans in the news: jails crowded to standing-room conditions and children in mass detention. Now that anyone crossing the border without authorization is charged with a crime, families are separated, adults are moved into ICE detention, and children are moved into holding facilities until they can be transferred into the custody of ORR.

ero-tolerance at the border has significant consequences that span two different types of facilities, both of which operated largely out of public view until the last two years. The first is ICE detention, where adult detainees wait for their immigration court cases to be resolved. The second are ORR shelters, where children—both those who crossed the border unaccompanied by a family member and those separated from their caregivers under zero-tolerance—are sheltered until they can be placed in the custody of a sponsor. Typically, their sponsor is a family member residing in the United States.

A recent report from the inspector general of the Department of Homeland Security (DHS) highlights the challenge: There is limited space in ICE facilities nationwide to take on Border Patrol detainees after they have been processed. That has occurred in part because of increases in apprehensions at the border as well as concerted efforts to apprehend people in the interior of the country. This puts further pressure on Border Patrol to house a population of individuals beyond their initial capacity, and any response to expand space has been limited and insufficient.

This situation at the border has led to cries for reform and investigation. Elected officials, media organizations, and humanitarian groups have sought to examine the dire conditions in some of these facilities. Many have faced stiff rebuffs from the government, limiting or restricting access. When outsiders—and even the DHS inspector general—have been allowed in, the conditions, in some situations, have not met federal standards and have even been outright sub-human. In one inspection of ICE facilities, the DHS inspector general found expired food and discovered that detainees were not permitted to take showers. ProPublica reported on children in ORR shelters arriving from border holding facilities with chicken pox and tuberculosis. A DHS whistleblower recently wrote about ICE’s “regular use of solitary confinement, particularly for mentally ill and medically vulnerable detainees.”

These challenges in our immigration system are not simply restricted to overcrowded holding facilities run by Customs and Border Protection (CBP). Similar accounts have come from facilities holding detainees who have been transferred to ICE custody and to facilities holding unaccompanied minors under the supervision of ORR. These entities—most of which are state-licensed and privately run, or are administered by county or municipal governments—have fallen short of federal standards; have failed to meet standards set under state policies; and have documented incidents such as violent assaults, sexual assaults, and suicides. These conditions affect a range of individuals housed in the nation’s immigration system, a group that includes extraordinarily vulnerable populations such as victims of human trafficking, individuals seeking asylum, and unaccompanied minors.

The role of the states in immigration policy

The idea that states could be in the driver’s seat when it comes to reforming our immigration system may seem counterintuitive. Immigration enforcement is a federal government power, and while some states and municipalities have opted not to assist federal authorities in immigration enforcement—most commonly referred to as sanctuary states or cities—the primary power rests with the central government to set and administer immigration laws. However, like many areas of policy, the issue has grown larger than the capacity of the federal government to address on its own. Therefore, the relevant federal agencies have used contracting to be able to administer the system.

Through a system of contracting, the federal government, namely ICE or the Department of Health and Human Services (HHS), pay other entities to house detainees until their cases are processed and adjudicated. Often those contracts are signed with private companies or with state, county, or municipal governments—a practice known as intergovernmental service agreements. Under these contracts, private or local government facilities will be responsible for housing and maintaining detainees and the federal government pays a per-person per diem to cover costs and compensate those entities. These can become quite lucrative contracts for local governments and for private companies, often creating incentive structures not simply to take such contracts but to maximize revenue. Those incentives, combined with a public and private prison system in the United States that itself faces calls for major reform, has created living conditions that do not live up to acceptable standards.

The result has been a decadeslong problem in the United States that has intensified over the past few years. Immigration agencies have not been given the resources to meet their obligations, internal oversight has been lacking, transparency has been limited, accountability has been scarce, and even proposed solutions such as contracting have not solved these problems, but simply shifted them to another setting. In the end, humans suffer from these governmental shortcomings, and the current immigration crisis has thrust that challenge into the public eye—even if complete information has not been fully available to the public.

How, then, can states play a significant role? The solution rests in the contracting process that ICE and HHS rely on. The chart below shows the breakdown in the number of adult immigration detainees held under the authority of ICE (those transferred from CBP) and the type of facility in which they are held. As the chart shows, the vast majority of individuals—85%—are held in facilities that are not federal.

Both private facilities as well as county and municipal authorities are licensed and/or regulated by state governments. Those facilities are thus subject not only to the regulatory authority of the state, but state law enforcement, public health standards, etc. Other agencies also have jurisdiction to investigate and monitor these facilities. When an individual housed in one of these facilities—be that person a local-level offender or an ICE detainee—dies, is assaulted, is the victim of rape or other type of abuse, the state government has jurisdiction to investigate.

And although there have been high-profile incidents in which members of Congress or their staffers have been blocked from entering federal facilities, including most recently more than a dozen CBP and ICE facilities in Texas, those barriers do not necessarily exist for state-regulated entities. Yes, state and local officials could opt to bar elected officials from entering facilities, but federal officials’ ability to interfere is limited. And while it would be preferable to allow investigators, overseers, and media access to all types of facilities, states can and must take a more active role in the absence of that.

This summer, the Center for American Progress published a report stating that “localities in states ranging from Virginia to California are cutting ties with ICE detention facilities while state legislatures are passing bills to push back against immigrant detention statewide.” And while states and localities understandably have moral and ethical objections to the federal government’s current (and past) immigration enforcement practices, it begs the question: What are better alternatives to severing ties with ICE and ORR?

How can states improve American immigration policy?

Immediate investigations

As explained in the previous section, states have a role in immigration policy through contracting. This opens the door for them to play a major role in improving immigration policy. In states where ICE detainees or unaccompanied minors detained by HHS are held in private or local facilities, state regulatory officials, social workers, lawyers, public health officials, and others can enter the facilities to enact a large-scale evaluation of the conditions in which people are held. This will allow a better understanding of their experience during other stages of custody, documenting both the positive and negative aspects of their time since apprehension. In many cases, states are working to do this, but a broader, coordinated effort is necessary.

However, simply expecting state agencies to take on the additional work is insufficient. Leadership from governors, legislatures, and agency heads is necessary to demonstrate both a public desire for straightforward evaluations of the situation and to place additional resources behind the effort. Such action will motivate the types of investigations and oversight necessary to understand better the experience of a CBP detainee and his or her track through the immigration system, and it will also highlight the plight of others being held in the same facilities.

And while federal immigration officials may not want reporters, legislators, and other outside support staff entering their facilities, those same officials cannot stop detainees from discussing the details of their experience once they have been transferred to facilities that are non-federal. The information regarding those experiences is critical both for the treatment of detainees for physical or mental health symptoms and for oversight of the system more generally.

Appoint a czar or coordinator to compile an interagency report

Governors can also appoint a “czar” or have some other staffer designated as a policy coordinator overseeing the work of the agencies investigating both conditions in detention facilities and the health, welfare, and experience of those being detained. This will keep governors informed as to progress, avenues of inquiry, and findings in near real time. Moreover, it will help identify weaknesses or bureaucratic slack that are preventing those inquiries from being thorough or completed. Coordination from the governor’s office will help improve communication among agencies in ways that help eliminate redundancy and improve interagency cooperation.

The ultimate goal of a coordinator or czar will be to implement procedures to ensure that such monitoring and oversight continues into the future. In the medium term, this individual should be responsible for requiring standardized reporting from each agency with authority over the relevant issues. A coordinator can then use that standardized reporting to compile a broader interagency report on the treatment of detainees and the conditions within detainment facilities. Such a report will provide deep and detailed insight into the plight of those housed in our nation’s immigration system as well as offer a look at how individuals arrested for crimes within communities are housed and treated during their detention or incarceration.

Disseminating information among stakeholders

Given the crisis in America’s immigration system, there are individuals and groups that are searching for as much information as possible regarding possible mistreatment, substandard conditions, crimes, lack of oversight, etc. However, limited transparency at the federal level has hindered and continues to hinder this effort. Despite those challenges, numerous groups and elected officials work tirelessly daily to examine the record of immigration policy in the United States and more importantly, to do their best to assist individuals who are subject to some of the worst outcomes that immigration policy failures provoke.

And while many of these groups are working at the state level to assist individuals, particularly unaccompanied minors, that effort remains limited by resources, the scope of the problem, the number of facilities, and the fluid nature of detention and detention operations. Interested politicians, active and well-intentioned humanitarian organizations, and other nonprofits can only do so much. State governments are best positioned both to provide broader access for those interested groups, to coordinate efforts within and across states (more on this below), and then compile information and evidence in a systematic way.

By working with nonprofits and other interested groups, states can reduce their own costs in conducting oversight of the immigration system, further extending their reach in a comprehensive way. In June 2018, dozens of major groups in the United States from humanitarian organizations to civic groups to labor unions and others signed a letter to President Trump urging an end to family separation at the border. Interest is broad and active efforts from organizations like the Detention Watch Network, Project South, the National Immigrant Justice Center, and the ACLU have sought to understand more clearly the plight of individuals currently being detained.

Beyond this, a lack of transparency and oversight also means that the media is deprived of important information for both standard and investigative reporting. That barrier between relevant government information and journalists means that the public is not only less informed, but less aware of government failures. Coordinated efforts within and across states will assist media and broader public awareness in two ways. First, by allowing journalists to see, personally, what conditions are like in facilities housing ICE and ORR detainees and by allowing journalists to speak to detainees, those journalists will be better positioned to write accurate and detailed stories about the relevant policies and their effects on individuals. Second, by coordinating vast amounts of investigative and oversight information at the state level and making that information public, journalists will be able to distill it in ways that makes it easier and more time efficient for the public to consume.

Part of the challenge to making the necessary reforms of our nation’s immigration system is a lack of complete information being disseminated to the public. That lack of public information means that fewer people are fully informed and thus are ill-equipped to put pressure on democratic institutions to reform that system. The federal government, quite obviously, lacks an interest in comprehensive public disclosure, and so, states have not only an opportunity but an obligation to do what they can to assist.

Statutory and regulatory review and strengthening

Attorneys general must order a review of each state agency’s statutory authority over immigrant detention, both of adults in ICE custody and of children in ORR shelters. This process will shed light on which agencies are responsible for the adults and children being held in facilities in that state, how facilities are licensed and under what standards, and the capacity of current law to ensure the safety and well-being of detainees. This review will expose where state agencies are failing to maximize their authority to address a policy problem and identify where statutes can be strengthened to empower those agencies. States also need to understand whether contractors (including municipalities) or federal agencies have had an inappropriate degree of influence over the regulatory process, and whether simple expediency during record-high flows of migrants have created loopholes via emergency regulations.

In the case of Texas during the Obama administration, expediting the licensing process preserved lucrative contracts and ensured adequate ICE capacity to detain families, and in the process left persistent questions about detention conditions and human rights violations. Prior to the Trump administration’s implementation of zero tolerance, family detention was an ongoing controversy that centered on two facilities in southern Texas. The Texas Department of Family and Protective Services proposed to license two family detention centers as child care facilities via emergency rules, a process that allowed them to proceed without public comment. A judge later ruled that licensing under the emergency rule would have allowed reduced standards. Late last year, the lawsuit contesting the state’s ability to license the facilities was overturned, and the facilities remain open, although DHS officials have considered phasing out both family detention centers. State officials insisted that this form of licensing was an effort to preserve oversight by child welfare authorities, but emergency licensing categories merit increased scrutiny for whether they, in practice, maintain detention capacity at a human cost.

While the current administration separates children from their caregivers and diverts them into ORR custody as “unaccompanied” children, the state regulation of those shelters must be scrutinized. It’s more imperative than ever to examine whether state child welfare authorities have appropriate authority over children in ORR custody. An illustrative case comes from a ProPublica investigation of medical neglect by a shelter in New Jersey that housed immigrant children. They found that New Jersey law does not permit child welfare officials to inspect the shelters because they don’t receive state funding. Unlike the family detention centers in Texas, shelters in New Jersey aren’t licensed as child care facilities at all—instead they are licensed as emergency homeless shelters that can house families. Nevermind that the unaccompanied immigrant children’s parents are not present—the institutional custodianship of ORR is sufficient under New Jersey law to make their facilities compliant.

This creates a policy situation in which current statutory and regulatory environments do not provide sufficient or perhaps even the intended outcomes to reflect the needs of populations and the facilities in which they are held. Gubernatorial leadership can play a significant role in this space. By executive order, governors should order agencies to review their regulations and issue recommendations for reform that take into account the state’s responsibilities and capacity, rather than letting state policy be guided by the pressure to expediently adapt to the federal government’s requirements for immigrant detention. Those recommendations for reform should identify where agencies can accomplish such goals via their own regulatory processes, where unilateral gubernatorial authority can ameliorate a bureaucratic challenge, and where state legislatures must act to deal with statutory barriers to change.

Form an interstate working group

Arrangements between ORR and its contractors over the last two years have been opaque. The flow of unaccompanied children into its custody has created a growing industry of contractors to house and transport migrant children. Sometimes these facilities only come to light because a neighbor sees children being led into and leaving a local office building. It’s clear that not all states have been able to keep up with monitoring the changing immigration landscape as the flow across the border has changed to include more children and families, and this is a key area where they can learn from each other.

By coordinating among states via the National Governor’s Association, the National Association of Attorneys General, or other existing organizations that encourage the flow of information and expertise among states as peers, state officials can shift away from treating immigrant detention as only as a problem in their backyard and begin to shift the norms of the system as a whole. By sharing inspection and audit information, they can more effectively target oversight of both local companies and those that cross state lines. Institutions that seek to coordinate interstate information can also facilitate the flow of information to interested NGOs and media, as we recommend above happening via a czar at the intrastate level.

Conclusion

The solution to America’s immigration crisis would require a massive, coordinated effort among federal government institutions, state and local governments, and private entities. It would require assistance to Mexico and Central American countries that maintain environments so unlivable that citizens of those countries flee north for economic opportunity, freedom, security, and safety from violence. It is a complex problem with an even more complex set of solutions. Given the current composition of the United States Senate, there is a lack of political bravery and humanitarian fortitude to make the necessary changes to help.

All that said, something can be done. Because state governments play such a pivotal role overseeing and licensing the facilities that house the majority of ICE and HHS detainees, they, too, can play a critical role in bringing sunlight to the immigration system—both by regulating state licensed facilities and giving voice to those housed within their walls.

State-level action, in conjunction with media and interested NGOs, will be an incomplete solution to a large-scale problem. However, the alternative is the perpetuation of a less effective system that subjects hundreds of thousands of individuals to the potential of sub-standard conditions, health and safety risks, and an abrogation of due process rights. It also presents an interesting policy question regarding state- and local-level choices regarding facilities that house federal detainees.

Some states and localities have taken action by removing themselves from agreements with ICE or blocking new ORR facilities. Yes, moral objections to immigration enforcement can, at a state level, resolve by ensuring that those states do not participate in the system. However, the next question must be: What happens to those ICE and ORR detainees if states or localities begin turning away those individuals? Those detainees are not simply released into the population. The children in ORR custody are not simply reunited with their families. Instead, those individuals are placed elsewhere in an already overburdened system.

We surely do not pass judgment on jurisdictions so appalled by the current state of affairs that they opt not to participate. But at the same time, the conscience of those jurisdictions demonstrates the strength of their opportunity to improve the system. The risk of shuttering facilities, blocking new facilities or contracts, or refusing the expansion of the number of individuals housed within a given jurisdiction could mean that those individuals are housed in a jurisdiction with less concern for their well-being, with the morality of their treatment, and with less sensitivity toward their past experiences.

The ubiquitous coverage of detention and shelter conditions in the press has shown that most Americans were quite unaware that this network was in operation and that it’s been around much longer than President Trump has been in office. Rather than saying no, states could embrace the people caught up in zero-tolerance with the understanding that any facility housing them would be subject to significant oversight, improved treatment, and a government-NGO-media partnership to publicize their stories in ways that informs the public as to the current state of the system.

 

John Hudak is deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies for Brookings.  @JohnJHudak

 

Christine Stenglein is Research Analyst for Brookings. @c_stenglein

 

 

 

 

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