Bills
| 3.23.22

Should Homeland Security Ban the Separation of Children From Families in Migrant Detention Facilities? (H.R. 2203)

Do you support or oppose this bill?

What is H.R. 2203?

(Updated December 16, 2021)

This bill — the Homeland Security Improvement Act — would provide additional oversight of the Dept. of Homeland Security (DHS) on border and immigration issues and ban family separation, except in very limited circumstances. It would establish a commission at DHS to develop policy recommendations, evaluate policies, and improve agent and officer safety. The commission would be made up of border state representatives. 

In addition to the commission, this bill would also establish an Office of the Ombudsman for Border and Immigration Related Concerns at DHS. The ombudsman would be responsible for responding to grievances against DHS; conducting DHS facility inspections; proposing changes to administrative practices to mitigate problems with CBP, ICE and USCIS; and perform other accountability functions within DHS.

This bill would also require ICE and CBP officers to attend education and training on topics such as community policing practices, lawful use of force, de-escalation tactics and the history and ethics of asylum law.

DHS would also be required to perform an assessment of ports of entry and report its findings. The report would cover: 1) staffing levels and additional need at such ports, 2) average delays, and 3) the feasibility of implementing body cameras at such ports.

CBP and ICE would be required to deliver annual reports on: 

  • Their staffing needs;
  • Their work’s impact(s) on trade and commerce; and
  • Assessments of border security strategy.

The Government Accountability Office (GAO) would be required to report regarding use of force policies at CBP & ICE and the potential implementation of body cameras for the agencies’ agents. It would also be required to develop a separate report on the feasibility of establishing an independent immigration court. That report would assess: 1) the impact such a change would have on the immigration case backlog; 2) barriers to such a court’s creation; and 3) a recommendation to Congress on whether to implement the court.

The DHS and Health and Human Services (HHS) Secretaries would be required to create a tracking system interface for separated families.

Family separation could only occur if either 1) a state court terminates a parent’s or legal guardian’s rights and declares that it’d be in the child’s best interests to be removed or 2) an official from the state or county child welfare agency with expertise in child trauma and development makes a best interests determination that it’d be best for the child to re removed from the parent, legal guardian or family member because the child is in danger. 

In general, a designated agency would be prohibited from removing a child from a parent, legal guardian or family member solely for the policy goal of deterring migration to the U.S. or promoting compliance with civil immigration laws. A person who knowingly separates a child from their parent could be fined up to $10,000.

Argument in favor

The disturbing volume of reports detailing migrants’ mistreatment in government detention facilities, as well as the 24 deaths that have been reported thus far, clearly demonstrate the need for greater oversight of the government’s policies with regard to unauthorized migrants’ detention.

Argument opposed

There are already multiple oversight and accountability procedures in place to ensure the safe operation of ICE and CBP facilities. Instead of asking Homeland Security for more reports, Congress should provide funding to address the border crisis to improve conditions at detention facilities and address the factors fueling the surge in illegal immigration.

Impact

DHS officers; CBP officers; DHS and CBP officers’ treatment of unauthorized immigrants; DHS; CBP; ICE; migrant crisis; unauthorized immigrants; migrant detention facilities; conditions at migrant detention facilities; DHS Secretary; and HHS Secretary.

Cost of H.R. 2203

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Veronica Escobar (D-TX) introduced this bill — her first as a new member of Congress — to ensure that the Dept. of Homeland Security (DHS) addresses border issues in a responsible and humane manner. In a press release upon introducing this bill, she said: 

“We have seen billions of dollars in funding go to the Department of Homeland Security to be spent on enforcement, but there has not been a similar push for accountability and oversight. In safe communities like El Paso, the most successful law enforcement leaders are those who participate in transparency and community engagement. At a time when many leaders in the Department have ‘acting’ in their titles, this bill will ensure the Department of Homeland Security begins to engage with border communities across the country to create effective and conscientious policy. I look forward to working with my colleagues to advance this crucial piece of legislation.”

MomsRising supports this bill. In a call to action on its website, the organization says: 

“There are parents across the nation holding their scared children tight right now, children who are terrified of what tomorrow could bring. It’s not an imaginary “monster under the bed” terrifying these kids; it’s the real life monsters created by the Trump Administration that are coming after immigrant families, including intentionally separating children from their parents… We need to tell Congress that it’s time to stand up for immigrant children and families and pass two monster slaying pieces of legislation — the Homeland Security Improvement Act (HR 2203) and the Humanitarian Standards for Individuals in Customs and Border Protection Custody Act (HR 3239)! These bills together are a meaningful step in combating family separation and ensuring the humane treatment of migrant children and families. If passed, these pieces of legislation would give much needed relief and protection to families most vulnerable to the Trump Administration’s cruel, anti-immigrant policies.”

Miles Immigration Law, PLLC, an immigrant-centered immigration law practice, supports this bill. In a post on its website, it argues this bill “would provide accountability and greater oversight over ICE and CBP, and the reallocation of resources on the border to process the legal claims of asylum seekers rather than illegally turning them away or expanding detention.”

Sam Williams, a 2018 Republican write-in candidate who sought election to the seat Rep. Escobar now holds, argues that this bill “does nothing to solve the border crisis.” In a post on his campaign website, he writes: 

“The Homeland Security Improvement Act does nothing to improve overall security of our borders. What it does do is create more bureaucracy and limit the power of those charged with enforcing immigration laws… [Those sponsoring this bill] consider the rights of those that are not United States Citizens and have broken United States law should be afforded the same right afforded United States Citizens. I must say that I can’t find where the United States Constitution says anything about people entering the United States Illegally are afforded the same rights as Citizens or Legal residents. The United States does afford basic human right to people coming into our country illegally and go beyond what any other country would do… HR 2203 doesn’t address a solution to the current illegal immigration crisis on the southern border [—]what it does do is make it more difficult to enforce our immigration laws. It would also over task the training requirements of Border Patrol Agents that are already over tasked and cost millions more in taxpayer dollars by adding another layer of government oversight thus increasing the bureaucracy already plaguing the United States Government.”

Writing for the minority after this bill’s committee passage, Rep. Mike Rogers (R-AL) wrote: 

“The majority is rushing [this bill] to the House floor at the urging of the Speaker. This partisan bill is riddled with absurd policy provisions that undermine border security, endanger the lives of children, malign law enforcement officers, and threaten the safety of our communities. Worst of all, the bill does nothing to address the root cause of the border crisis: our broken immigration system. [CBP and ICE] have repeatedly informed the Committee and the public that criminals are telling migrants in Central America to use children as ‘’visas’ because an accom- panying child will help expedite the migrant’s release into the interior of the United States. This propaganda encourages smuggling and trafficking of migrant children. Rather than providing law enforcement the tools to end the scourge of child smuggling, [this bill] appallingly exacerbates the problem. The bill appears to undermine the ability of trained federal law enforcement officers to remove minors from suspected human traffickers, smugglers, and other harmful criminals. Under section 205 of the bill, only state courts or welfare agencies are authorized to remove a child parent or family member (defined in the bill to include cousins). The bill does not contemplate that the parent or family member may be fraudulently posing as a parent or legal guardian of the minor when in fact they are a smuggler… This bill] doubles down on catch and release policies that under- mine the safety of our communities. The bill expressly authorizes CBP the option to release migrants in their custody after 72 hours regardless of whether they’ve been screened to determine criminal history. Mass releases created by this provision could overwhelm border communities and fully degrade DHS’ ability to maintain order along the southwest border. It will also empower smuggler propaganda and fuel more waves of migrants to attempt dangerous border crossings. Compounding the problem, [this bill] terminates the Migrant Protection Protocol (MPP) with Mexico. This important program… has helped alleviate dangerous overcrowding at our ports of entry and provided migrants with a fair and orderly process to request asylum. The bill goes even further by forcing CBP to grant entry to every single migrant that presents at U.S. ports of entry regardless of facility capacity. [This bill] deliberately slows DHS border security and enforcement operations on and near the border by requiring federal, state, and local law enforcement officers to comply with a dozen new administrative requirements for routine traffic stops or encounters.”

On a procedural note, Rep. Rogers also expressed frustration with the Democratic majority’s decision to ignore House rules on providing bill text to committee members in advance of a vote: 

“In an effort to quickly ram H.R. 2203 through the Committee, the majority violated rules which require Members be provided the legislation 48 hours in advance of its consideration. A new amend- ment in the nature of a substitute to H.R. 2203 was not provided to Members of the Committee until late in the afternoon on July 16th, just a few hours before the markup on the morning of July 17th. This new amendment heavily modified every substantive provision of the bill and added several new provisions. Ranking Member Rogers raised a point of order against the amendment’s consideration and Chairman Thompson sustained that point of order. Chairman Thompson then invoked House rules to force consideration of the amendment.” 

This bill passed the House Homeland Security Committee by a party-line 16-13 vote with the support of 28 Democratic cosponsors. 


Of Note: Apprehensions at the Southern border of unauthorized immigrants and asylum-seekers have spiked in the last year, with May 2019 marking the highest monthly total since 2006 at 132,880 apprehensions. Of those detained, the proportion of family units and unaccompanied minors are at all-time highs, burdening a detention system designed for single males who historically made up the vast majority of those apprehended at the Southern border. After it became apparent that DHS accounts funding detention facilities would run out of money before the end of the fiscal year, Congress passed a bipartisan $4.59 billion emergency funding package to provide for additional facilities to prevent overcrowding, provide basic necessities and healthcare to detained migrants, and speed up the processing of immigration cases. President Trump signed it into law on June 30th.

As of July 2019, over 50,000 migrants are being detained in ICE facilities and another approximately 20,000 are being held in CBP centers while their immigration case is processed and they await deportation or release into the U.S. Over 11,000 children are in the custody of HHS, which holds unaccompanied children for an average of 45 days. Many migrants are coming from the violence-torn Northern Triangle countries of El Salvador, Guatemala and Honduras. 

As of June 9, 2019, 24 immigrants — including seven children — had died in U.S. custody. According to Democrats on the House Oversight Committee, at least 30 children haven’t been reunited with their parents.

Allegations of overcrowding, poor conditions, human rights violations, inadequate health services, usage of slave labor and abuse of solitary confinement have been levied against many of these facilities by advocates, detainees, and human rights watchdog groups. In mid-July 2019, the House Oversight Committee held a hearing with the DHS Inspector General, whose office issued a July 2, 2019 report detailing “dangerous overcrowding” at CBP detention facilities.

There have been numerous allegations of abuse of migrants as the Trump administration cracks down on illegal immigration to the U.S. In May 2019, ProPublica reported at least 214 allegations of abuse of migrant children over the period 2009-2014, and only one case of Homeland Security disciplining someone in connection with these allegations. 

In response to the ongoing allegations of migrant abuse, the immigration advocacy group United We Dream launched an online tracker detailing “rampant human rights abuses” by ICE and CBP. Its interactive website, the “ICE And CBP Abuse Tracker,” contains over eight months’ worth of news coverage of the agencies’ activities. In addition to sharing stories about ICE’s and CBP’s roles in enforcing the Trump administration’s immigrant crackdown, the website also shares ways for U.S. residents to take action and get involved “in the fight to defund ICE and CBP.”

Reports of adults and children being held for days, weeks or even months in cramped cells without access to soap, toothpaste or places to wash their hands or shower have emerged. Some reports of children sleeping on concrete floors, and of adults having to stand for days due to lack of space have also reported. At an Arizona CBP facility, a 15-year-old girl from Honduras reported that an officer groped her during a patdown in front of other migrants and officers. It’s also been reported that babies are having to drink from unwashed bottles, that there aren’t enough diapers and that babies are being subjected to “extreme cold temperatures” with “lights on 24 hours a day,” according to a pediatrician who has treated migrant children. There have also been outbreaks of flu, lice, chicken pox and scabies in migrant detention facilities.

The ACLU argues that the Trump administration’s detention and deportation policies violate a number of constitutional protections and threaten civil liberties: 

“Many of ICE’s removal tactics take away even the right to a fair hearing in court, as the government rushes to judgment and tries to ram people through a rubber-stamp system that ignores individual circumstances. These enforcement programs pose a variety of threats to civil liberties: They implicate the Fourth Amendment’s protection against unreasonable searches and seizures, the constitutional guarantee of due process, and the constitutional guarantee of equal protection and freedom from discrimination based on race, ethnicity, and national origin. ICE’s enforcement practices also impose heavy social costs, tearing American families apart and undermining community trust in law enforcement.”

In the 1980s and 1990s, lawsuits against the government for mistreatment of unaccompanied children, including the case of 15-year-old Jenny Lisette Flores from El Salvador, culminated in the 1997 Flores settlement, which prohibits U.S. immigration and border enforcement agencies from detaining unaccompanied minors for more than 20 days. Additionally, the settlement specified that unaccompanied minors in U.S. agency custody would be provided with 1) access to food and drinking water, 2) medical assistance in the event of emergencies, 3) toilets and sinks, 4) adequate temperature control and ventilation, 5) adequate supervision to protect them from others. It also specified that minors would be separated from unrelated adults whenever possible; and allowed contact with family members who were arrested with them. With the 2008 Trafficking Victims Protection Reauthorization Act’s (TVPRA) passage, Flores took full effect. 

In 2015, a federal judge enhanced Flores by ruling that its requirements apply to both unaccompanied minors and children who are with their parents. In 2018, the Justice Dept. tried to get the same judge to modify the agreement to allow for indefinite detention, but the request was denied. The Trump administration has also argued in court that the Flores agreement doesn’t require CBP to provide basic toiletries, such as toothbrushes and soap, to detained children. In arguments before the Ninth Circuit Court of Appeals in San Francisco, Justice Dept. attorney Sarah Fabian argued that the government is legally allowed to make children sleep on concrete floors in cold and overcrowded cells, and that it isn’t required to provide soap and toothbrushes. The three-judge panel disagreed with the administration’s claim and suggested in their comments that the current treatment of migrant children violates the Flores agreement. U.S. Circuit Judge William asked Fabian: 

“Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket? I find it inconceivable that the government would say that that is safe and sanitary.” 

Senior U.S. Circuit Judge A. Wallace Tashima, who was held in a U.S. internment camp for Japanese-Americans during World War II, added: 

“It’s within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that? Do you agree to that?”

In July 2019, ProPublica reported on the existence of a private Facebook group, “I’m 10-15,” wherein CBP agents “joked about the deaths of migrants, discussed throwing burritos at Latino members of Congress visiting a detention facility in Texas on Monday and posted a vulgar illustration depicting Rep. Alexandria Ocasio-Cortez engaged in oral sex with a detained migrant.” David Martinez, a sociologist at the University of Arizona in Tucson who studies the border, says of the Facebook group’s contents: “These comments and memes are extremely troubling. They’re clearly xenophobic and sexist.” Martinez adds that the postings reflect “a pervasive culture of cruelty aimed at immigrants within CBP” and concluded, “This isn’t just a few rogue agents or ‘bad apples.’”

Leah Chavla, an international human rights lawyer and policy adviser at the Women's Refugee Commission, has previously noted that CBP has its own guidelines in place governing the conditions and resources it has to provide to children and other migrants in the agency’s custody. However, these guidelines aren’t binding. With this in mind, Chavla has previously said that “[i]t’s important to have a critical look at what’s going on and how the guidelines can be made binding.”

As part of Congress’ oversight power, members of Congress are allowed to visit ICE facilities to inspect their operations. For facilities with unaccompanied minors, Congresspeople are allowed drop-in visits. This requirement was established through legislation that Congress passed in 2018. 

In addition to congressional oversight, there is also a little-known policy called “stakeholder procedures,” established in 2011, that allows the public to monitor conditions in ICE detention centers. This “Access Directive” outlines a process by which individuals or groups can tour ICE facilities if they send a request to the overseeing ICE field officer, along with several proposed dates, at least two weeks in advance. 

However, in March 2017, Community Initiatives for Visiting Immigrants in Confinement (CIVIC), told Rewire News that ICE had rejected six of its requests for access over a two-month period. It, along with the ACLU and over 400 groups and individuals, wrote a letter to ICE in March 2017 urging the agency to ensure public access to and oversight of immigrant detention.

In response to CIVIC’s letter, then-ICE Acting Director, Thomas Homan, said the agency “appreciates the work of CIVIC and other community-based visitation programs” and has a “strong desire” to continue to facilitate their access to immigration detention facilities.

Currently, inspections of ICE jails are conducted by a private company, Nakamoto Group, as well as ICE’s Office of Detention Oversight (ODO), neither of which investigates all of the country’s ICE facilities in any given year. On average, Nakamoto inspects an average of 100 facilities each year and ODO inspected an average of 28 facilities in fiscal years 2015, 2016 and 2017. In addition to these inspections, there’s supposed to be a “continuous” monitoring program, but that also doesn’t occur at every ICE facility. 


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / Phototreat)