In a major setback for the Obama Administration’s practice of imprisoning entire migrant families, a Texas court decided that the Texas Department of Family and Protective Services issued licenses to two facilities in violation of state law. Grassroots Leadership, Inc. v. Texas Dept. of Family and Protective Services, No. D-1-GN-15-004336 slip op. (Tx. Dist. Ct. Dec. 2, 2016). Advocates challenged the legality of the state licensing structure under which two private prison corporations, GEO Group and the Corrections Corporation of America (now known as CoreCivic), operated secure facilities on behalf of ICE. The GEO Group operates the Karnes County Residential Facility where approximately 1,100 migrants are held, roughly half under 18-years-old. CCA/CoreCivic operates the 2,400-bed South Texas Family Residential Center in Dilley.
The Texas court’s three-page order leaves little doubt about its position. The state licensing standards, the court declared, “contravenes Texas Human Resources Code § 42.002(4) and runs counter to the general objectives of the Texas Human Resources Code and is, therefore, invalid.” Id. at 3. Texas Human Resources Code § 42.002(4) defines a “general residential operation” as “a child-care facility that provides care for more than 12 children for 24 hours a day, including facilities known as children’s homes, halfway houses, residential treatment centers, emergency shelters, and therapeutic camps.” By explicitly concluding that the state licensing regime violates § 42.002(4), the court strongly suggested that secure facilities cannot be construed as child-care centers. Because the Texas Human Resources Code authorizes regulation of child-care centers only, the Texas Department of Family and Protective Services exceeded its statutory powers.
For years, advocates have described the Dilley and Karnes facilities as “baby jails” because migrants are constantly watched, access is limited, and movement within the secure perimeter is controlled. Friday’s judicial order certainly doesn’t adopt that language, but it does make it clear that the court was not convinced that these are child-care facilities. In a press release over the weekend, Bob Libal, executive director of Grassroots Leadership, the lead plaintiff, said, “The conditions at Karnes and Dilley are equivalent to prisons, not childcare facilities. We are glad the court heard our concerns about the damage that family detention does to mothers and their children and how lowering standards to issue licenses to these facilities only exacerbates that harm.”
In response to Friday’s order, over the weekend ICE released approximately 460 mothers and children from Dilley and Karnes. In a press release, the Refugee and Immigrant Center for Education and Legal Services (RAICES) announced: “The majority of families were released without travel plans, forcing RAICES staff and volunteers to work until 4:00 AM on Saturday night to communicate with families and arrange travel. RAICES has opened additional shelter space at a local church and convent in San Antonio to accommodate the overflow from our shelter.”
I fully expect Texas to appeal the court’s order. GEO and CCA/CoreCivic both intervened in the lawsuit; they can also be expected to appeal. In whatever fashion the appeal unfolds, this litigation illustrates the important role that state law plays in regulating the lives of migrants. Having failed to convince the Obama Administration to abandon its family imprisonment practice, advocates turned to state licensing standards as an alternative means of attack. If President-elect Trump follows through on his promises of throwing immigration law enforcement practices into overdrive, state law will only become more important for advocates seeking some type of respite for migrants.
If allowed to stand, Friday’s order is a substantial setback for the Obama Administration’s deep-seated practice of imprisoning women and children. The Administration has made much of its desire to imprison these migrants as a way of deterring others from leaving Central America to seek refuge in the United States. As far as I know, President-elect Trump has not commented directly on family immigration prisons. His frequent demonization of migrants generally, however, suggests that there is little room to expect his administration would depart from the Obama Administration’s harsh approach to children and mothers who venture north without the federal government’s permission.
Whether adopted by Obama or Trump, imprisoning families is morally problematic. Now a court has declared that it is also illegal. We’ll see what the final word is.