Baby Jails: The Fight to End the Incarceration of Refugee Children in America

PRAISE FOR BABY JAILS

A powerful work that uses a rich combination of litigation documents, personal interviews, noncitizens’ stories, and case law to trace the development of child and family detention in the United States.—Pooja R. Dadhania, Assistant Professor, California Western School of Law

A novel and thorough historical account of an issue of enormous importance. —Geoff rey Heeren, Associate Professor and Director, Immigration Clinic, Valparaiso University School of Law

Baby Jails

The publisher and the University of California Press Foundation gratefully acknowledge the generous support of the Anne G. Lipow Endowment Fund in Social Justice and Human Rights.

The publisher and the University of California Press Foundation gratefully acknowledge the generous support of the Lawrence Grauman, Jr. Fund.

Baby Jails

THE FIGHT TO END THE INCARCERATION OF REFUGEE CHILDREN IN AMERICA

Philip G. Schrag

UNIVERSITY OF CALIFORNIA PRESS

University of California Press

Oakland, California

© 2020 by Philip G. Schrag

Cataloging-in-Publication Data is on file at the Library of Congress.

ISBN 978-0-520-29930-6 (cloth : alk. paper)

ISBN 978-0-520-29931-3 (pbk. : alk. paper)

ISBN 978-0-520-97109-7 (ebook)

Manufactured in the United States of America

28  27  26  25  24  23  22  21  20

10  9  8  7  6  5  4  3  2  1

To the courageous children and families who flee persecution and torture in their homelands to seek safety in the United States of America

Contents

List of Figures

Acknowledgments

Introduction

1. Jenny Flores, 1985–1988

2. Good Enough, 1988–1993

3. The Second Settlement, 1993–1997

4. Congress Intervenes, 1997–2002

5. Asylum, 1980–1997

6. Hutto, 2003–2007

7. The TVPRA, 2007–2008

8. Artesia, 2009–2014

9. Karnes and Dilley, 2014–2016

10. Litigation Proliferates, 2015–2016

11. Berks, 1998–2018

12. Trump, 2017–2019

Conclusion

Epilogue

Appendix: Important Laws and Lawsuits

Acronyms

Notes

Index

Figures

The INS detention center at the Mardi Gras Motel, 1985

Peter Schey in 2017

Judge Robert J. Kelleher

Carlos Holguín in 1987

The seizure of Elián González

Senator Dianne Feinstein

Barbara Hines, speaking at a protest

A family cell in the L. Don Hutto Family Residential Center

Judge Sam Sparks

Vanita Gupta

Michelle Brané, interviewing a refugee

Unaccompanied child and family units apprehensions, and totals of those apprehensions, by year

Children in CBP custody in 2014

Denise Gilman

Judge Dolly Gee

Leon Fresco

Robert Libal and Cristina Parker

Manoj Govindaiah

Laura Guerra-Cardus

Carol Ann Donohoe and Bridget Cambria

Family separation editorial cartoon, 2018

Inspector General’s photograph of CBP overcrowding at the McAllen, Texas, station, 2019

Acknowledgments

As the many endnotes to this book reveal, a great deal has been written about the long effort to end the detention of migrant children, though this is the first book-length treatment of the subject. It explores the issues by combining journalistic accounts with research done by nonprofit organizations, close analysis of court records, and interviews with key participants. I am grateful to all of the lawyers, journalists, and other authors who have documented the many dozens of moving pieces and thereby made it possible to reconstruct the history of the struggle. Constructing the backbone of the book depended, however, on my interviews with many of the nonprofit and former government lawyers who played important roles in the conflict. They each volunteered hours of their time to explain the sequence of events and the work they did. In many cases, they also shared documents that are quoted or cited in this work. The individuals whose cooperation was essential to this narrative included Cheasty Anderson, Michelle Brané, Bridget Cambria, Robert Doggett, Carol Anne Donohoe, Leon Fresco, Lee Gelernt, Denise Gilman, Manoj Govindaiah, Laura Guerra-Cardus, Lindsay Harris, Barbara Hines, Robert Libal, Cristina Parker, and Peter Schey. Carlos Holguín and Jennifer Lee also contributed valuable background information.

I am grateful for additional help from Pooja Dadhania, Mary Ann DeRosa, Geoffrey Heeren, Lisa Lerman, Michael Meltsner, Karen Musalo, Mabel Shaw, and Anna Selden. I appreciate the constant support of my Georgetown colleagues Andrew Schoenholtz and David Koplow. This book was inspired in part by the excellent case study of the legal battle against compulsory sterilization, In Reckless Hands, by my colleague Victoria Nourse. A special shoutout goes to Naomi Schneider, my wonderful editor at the University of California Press, who held my hand at every stage of this process and gracefully allowed me to expand the projected length of the book and to accelerate its production when, during the writing of this manuscript, President Trump suddenly turned the Flores Settlement from a term known only to immigration specialists into a household phrase.

•  •  •  •  •  

I am pleased to acknowledge these individuals and institutions for granting permission to use their copyrighted images. Those images may not be reproduced further without permission from the copyright holders.

The INS detention center at the Mardi Gras Motel, 1985: Lisa Hartouni.

Judge Robert J. Kelleher: Gary Miyatake/Toyo Photography.

Carlos Holguín: Peter Schey.

The seizure of Elián González: AP Photo/Alan Diaz, copyright Associated Press.

Dianne Feinstein: courtesy of the office of Senator Dianne Feinstein.

Prof. Barbara Hines: courtesy of Barbara Hines.

A family cell in the L. Don Hutto Family Residential Center: AP Photo/ L.M. Otero, copyright Associated Press.

Judge Sam Sparks: The Federal Lawyer. The photograph first appeared in a profile of Judge Sparks in the May 2010 issue of The Federal Lawyer.

Vanita Gupta: Courtesy of The Leadership Conference on Civil and Human Rights.

Michelle Brané: courtesy of Women’s Refugee Commission.

Children in CBP custody in 2014: AP Photo/Ross D. Franklin, copyright Associated Press.

Judge Dolly Gee: Gary Miyatake/Toyo Photography.

Leon Fresco: courtesy of the law firm of Holland & Knight.

Family separation editorial cartoon: used with the permission of Jeff Danziger, the Washington Post Writers Group, and the Cartoonist Group. All rights reserved.

Cover photo, migrant child: AP Photo/Gregory Bull, copyright Associated Press.

Introduction

In January 2019, many federal agencies were shuttered for weeks, federal services were curtailed, and 800,000 federal workers were furloughed because President Donald J. Trump refused to approve a budget plan unless it included funding for a wall between the United States and Mexico. In the midst of the turmoil caused by the closure of vital federal agencies, Trump sent a letter to Congress outlining the two most pressing legal changes that he wanted legislators to enact in order to deter people, including asylum-seekers, from trying to come to the United States.¹ These were, first, to terminate the Flores Settlement Agreement, and, second, to amend the Trafficking Victims Protection Reauthorization Act (TVPRA) that Congress had unanimously passed, and that President George W. Bush had signed, in 2008. The Flores agreement is a 1997 legal settlement under which the United States had agreed not to jail migrant children for more than a few days. The TVPRA reinforced the Flores agreement by preventing the Border Patrol from holding unaccompanied children in its custody for more than seventy-two hours and by providing procedural protections for those who applied for asylum.

The Flores agreement and the TVPRA had limited, but not entirely ended, the incarceration of migrant children. The TVPRA required that the government transfer unaccompanied children promptly to the custody of the Department of Health and Human Services, which then reunited them with parents or other family members in the United States or, failing that, housed them in shelters where they were usually well cared for. But the TVPRA did not apply to accompanied children, those who arrived in the United States with a parent or other adult.

The Obama administration hired private prison companies to build two large jails in Texas for the mothers and children in these families. A court interpreted the Flores settlement agreement to mean that the children could not be incarcerated in those jails for more than twenty days. But the Trump administration wants to be able to jail these asylum-seeking families for years,² until the backlogged immigration courts can hear their claims. It has sought, successively, to persuade Congress to terminate the Flores agreement, to get a court to reinterpret it, to repeal it by regulation, and to circumvent it by making Central American families wait for their hearings in Mexico rather than allowing them to enter the United States.

This book arose out of my brief volunteer experience in one of the family jails. In the fall of 2015, I left the comfort zone of my Georgetown University office for a few days to provide legal services to mothers and children confined in the immigration detention center in Dilley, Texas. The place I visited was no ordinary jail. The women and children had not been charged with crimes. Each of the mothers with whom I talked had fled dreadful violence in Central America. They had come north, making an arduous trip through Mexico, to seek the safety afforded by the United States and its asylum law. After crossing the Rio Grande, they were quickly apprehended by the Border Patrol. Initially, they were confined in the Border Patrol’s holding facilities in what they described as miserable conditions. Then they were put into the custody of Immigration and Customs Enforcement (ICE), which transported them to what was euphemistically called the South Texas Family Residential Center, a name suggesting some kind of resort. It was in fact a corporation’s private jail, operated under a contract with ICE.

Along with several other lawyers, I worked in a trailer set aside for conversations between the women and attorneys. While we talked, their children, most of whom seemed to be between three and eight years old, played with a few toys on the floor. It was hard for me to get my head around the idea of a jail full of toddlers, but there they were. The children also looked longingly at the vending machine that was stocked with candy for the legal representatives, but they were not allowed to have any. In fact, the lawyers had asked for the vending machine to be removed, but ICE had refused. The mothers reported that many of their children were ill. Conjunctivitis seemed rampant among the confined youngsters. The mothers also said that children who developed fevers or diarrhea had to wait for a long time to see a nurse or doctor, and then were most often told that the children should drink water. Many of the children seemed terrified of being in jail after their harrowing trips through Mexico, often at least partly on foot.

The role of the lawyers was to prepare the mothers for screening interviews conducted by asylum officers of the Department of Homeland Security (DHS). These interviews were called credible fear interviews, because to avoid deportation, the mother would have to show that she had a credible fear of persecution. Credible fear was a term of art, signifying the asylum officer’s determination of whether the mother had no case at all or whether she could seek asylum in immigration court. An asylum officer could find that a mother had credible fear if the officer thought that, in a court hearing months or years later, an immigration judge might well conclude that she was telling the truth about her experiences in her home country, and that she reasonably feared being persecuted, if deported, on account of one of the grounds identified as acceptable in U.S. law.

For example, a mother who persuaded an asylum officer that she did have credible fear of being persecuted because of her political opinions might be released from the jail, along with her children, so that the family could live with a friend or relative until an immigration court hearing took place. But if she could not persuade the officer that she had credible fear, her family would remain in jail until deportation, which could take place within days. In that case, there was one last chance. The day after the asylum officer interview, she could make a teleconference appeal to an immigration judge, who could either affirm or reverse the asylum officer’s finding that she lacked credible fear. Immigration law permitted a lawyer to prepare her for the asylum officer’s interview and the appeal, and to sit with her in front of the camera and the video screen, but it barred the lawyer from representing her.

Most of the mothers were very anxious about these legal proceedings, in which they had to relate—and relive—horrible experiences, including knifings and rapes. Their small children were equally unnerved by the process. One video hearing that I attended with a six-year-old child’s mother had to be postponed because the boy would not leave her side even for the mother’s half-hour court appearance. After the child screamed for forty-five minutes, a guard tore the child, still screaming, from his mother’s arms. The distraught mother had to go directly from that scene to the courtroom, where she would testify to a camera. There her fate was decided, on the spot, by a judge in Miami, Florida, more than a thousand miles away.

The mothers related experiences in El Salvador, Honduras, and Guatemala that are almost unimaginable in the extremity of the violence visited upon them. One of the women I advised, whom I will call Maria, had been eleven years old when her father, who was employed but very poor, refused to give a portion of what little money he had to the local gang. One night, Maria was sitting in their small house holding her two-year-old sister on her lap. There was a knock on the door. Her father called out to find out who it was. A male voice said that the group had come for its money. Maria’s mother rushed from the living room into the bedroom to collect the family’s meager savings. Her father tried to stop her, refusing on principle to pay extortion money. He wanted to bar the front door with furniture. Her mother insisted on paying, to avoid danger to the family. Her parents scuffled in the living room. Maria’s mother broke free and was carrying the money to the door when the gang members became impatient and fired several shots through it. She was killed instantly. A bullet hit Maria’s baby sister, but the wound was superficial, perhaps caused by a ricochet. Maria herself suffered a graze on her arm. Her father was also hit. He did not die right away, but he later perished from the wound because he could not afford medical care. Her aunt heard the shots and called the police. When the shooters heard the siren, they fled. Maria took care of her father until he died and then moved in with her grandmother. Years later, when she was an adult, a gang extorted money from her. She was raped and threatened with death. At that point, she fled to the United States with her youngest child, leaving three other children behind with her grandmother because she didn’t have enough money for them to make the trip.

Hundreds of volunteer lawyers were taking turns providing legal advice to the mothers in this facility. Along with its sister jail in Karnes City, Texas, and a very small facility in Berks County, Pennsylvania, Dilley was then one of the three facilities in the United States known to immigration lawyers as baby jails.³ Most of the lawyers who volunteered at Dilley traveled to Texas for a week at a time to counsel the detainees, prepare them for the screening interviews, and help them with their last-chance videoconference appeals.

Dilley started housing mothers and children only in 2014, but mothers and children fleeing for their lives to the United States have been detained for decades. Lawyers had been trying to prevent the incarceration of migrant children ever since 1985, when Peter Schey, a California lawyer, was asked to help Jenny Lisette Flores, a Salvadoran teenager. Jenny was languishing in a Los Angeles motel that the Immigration and Naturalization Service (INS) had converted to a jail by surrounding the building with barbed wire.

When Schey agreed to represent Flores, he could have had no inkling that her case would go to the United States Supreme Court or that it would still be going on thirty-five years after it began. Nor could he have predicted that the settlement he would eventually negotiate on behalf of migrant children would become a significant target for an American president intent on making it much more difficult for Salvadorans and other victims of violence abroad to obtain asylum in the United States.

This book is a history of the Flores case, its aftermath (including related legislation and litigation) and, more generally, of the efforts by lawyers, legislators, and others to end the detention of migrant children and to alleviate the conditions of their detention. These efforts often have been successful, at least for periods of time. Though the long-term trend of political and legal developments has favored the interests of the children, there were also many setbacks for the children, their parents, and their advocates. The federal government’s decades-long effort to keep immigrant children in jail, among other harsh measures to deter them from seeking asylum, has become extreme under the Trump administration. It first attempted to separate families (keeping the mothers in jail while sending the children to shelters or foster care) and then, after an inter-national outcry, it concluded that it would be better to keep entire families imprisoned for years. More than three decades after Jenny Flores became a plaintiff, the issue of what to do with migrant children, including those who have fled to the United States to escape persecution and violence, remained a controversial legal and political issue.

In 1980, Congress made asylum available to almost anyone in the United States or at its border who could prove that he or she had a well-founded fear of persecution on at least one of five specified grounds.⁴ Hundreds of thousands of people subsequently sought and won protection. Under the law, even those who entered the United States without visas can seek asylum, though people apprehended for entering the United States surreptitiously, or who ask for asylum at a border crossing, can be detained—jailed—until their cases are heard. Many immigration advocates oppose the jailing of adults pending their asylum hearings because it is very difficult for those confined in ICE facilities to obtain legal representation or to collect evidence to corroborate their claims. It is also very costly to house and feed migrants in ICE’s detention facilities. Special considerations apply to children, because the consensus among mental health professionals is that jailing children, even for relatively short periods of time, can cause permanent developmental and emotional damage. Children have fled to the United States from Central America at least since the early 1980s, sometimes by themselves and sometimes with an adult. Since 2005, and particularly since 2013, the numbers of such children have been substantial, presenting successive administrations with the problem of what to do with them until their claims could be adjudicated.

One way to avoid detaining children would be to station judges at the border to decide within days whether their claims for asylum were valid. But this would be unfair to the children and their relatives, because it is difficult to win an asylum case without a legal representative who can assemble corroborating evidence. It can take several months for an indigent migrant to find a lawyer who will provide free representation, after which the process of collecting evidence often takes many weeks. In the clinic that I co-direct at Georgetown Law, my students, working day and night on a single case, need about three months to obtain enough evidence to persuade an immigration judge of the validity of a client’s claim. If either the government or the client appeals the judge’s decision, the case can go on for as long as three years.⁵

A second possibility would be to release the children (and any accompanying relatives) to live in the community until their cases can be heard, perhaps monitoring them electronically or through periodic required visits to ICE officials to ensure that they will appear for their hearings. Monitored release is actually what the government does with many families, because it doesn’t have enough space in its family jails to house all of them, even for the twenty days permitted by a court order in the Flores case. A third option is to incarcerate the children (together with an accompanying parent) until the hearing; a fourth is to jail the parents until then, but to release the children, thereby separating families. The government has used all of these approaches—humanitarian release, long-term detention, and family separation—from time to time. Indeed, as this book shows, these three solutions to the problem of what to do with children awaiting hearings on their asylum claims have been the subjects of advocacy by numerous administration officials, legislators, judges, and immigrants’ advocates for more than three decades. The TVPRA requires that with rare exceptions, unaccompanied children should promptly be taken out of detention and placed in the least restrictive setting possible. The treatment of children who arrive with family members, on the other hand, remains the subject of fierce political contestation.

Chapters 1, 2, and 3 of this book relate the early history of the Flores case, which is remarkable in two respects. First, although the case hasn’t quite set the record for longevity, it is still alive after nearly thirty-five years. Second, after eight years of litigation, the case was decided by the United States Supreme Court. Usually, a case that goes to the Supreme Court ends shortly thereafter, because there can be no appeal from that court’s decision. In its decision in Flores, the Supreme Court decided that children did not have a constitutional right to be placed with a responsible adult who was unrelated to them, but it left open one aspect of the case. It assumed that the government was honoring an agreement it had signed regarding the conditions of confinement for migrant children, an assumption that turned out to be incorrect. Ms. Flores’s lawyers drove a truck through the small opening created by the government’s failure to honor its initial agreement. They first obtained a second settlement of that aspect of the case, four years after the Court’s decision. They then enforced the settlement through motions, beginning in 2015, that challenged the government’s policy of long-term detention of families with children. Chapter 1 tells the story of Jenny Flores’s incarceration, how the case began, and its initial, partial settlement in 1987. Chapter 2 explains the appellate history of the case, including the Supreme Court’s decision. Chapter 3 reveals how, even after the Supreme Court ruled against Ms. Flores, the case resulted in the second settlement, against which President Trump would rail more than twenty years later.

Chapter 4 concerns the first intervention by Congress, largely at the initiative of Senator Dianne Feinstein. In its 2002 Homeland Security Act, Congress began to address the issue of confinement of unaccompanied migrant children. It divested the Immigration and Naturalization Service of responsibility for their custody and transferred that duty to the Office of Refugee Resettlement in the Department of Health and Human Services. This change led to a much more humane system for the care of these children until their cases could be decided.

In Chapter 5, the book briefly explores the law of asylum and explains the alterations that Congress made in 1996 in the process for adjudicating asylum claims for migrants who arrived without visas. The 1996 amendments to the immigration law created the expedited removal procedure. This process for summarily deporting some asylum seekers was never imposed on unaccompanied children, but it was an important change for mothers and fathers who arrived with one or more children, adding an additional obstacle to their obtaining asylum.

Chapter 6 discusses the establishment of the nation’s first large family detention center during the administration of President George W. Bush, and of the lawsuit that sought to shut it down. The judge in that case declined to end family detention, but his orders did bring about substantial reforms in children’s treatment.

In Chapter 7, I explore how Congress revisited and expanded the rights of unaccompanied migrant children who seek asylum or other relief from deportation,⁶ extending them beyond the provisions of the 1997 Flores settlement. Through several provisions of the TVPRA, Congress limited the amount of time that those children could be kept in rough border facilities and provided that full hearings on their asylum claims should be conducted by DHS asylum officers, who receive specialized training in interviewing children, rather than by immigration judges.

During his first year in office, President Barack Obama closed the family detention center that the Bush administration had opened. Five years later, however, after the arrival of many more families and children seeking asylum because of gang violence and domestic violence in Guatemala, Honduras, and El Salvador, the Obama administration opened three new family detention centers, first in New Mexico and then, in 2014 and 2015, in Texas. Chapters 8, 9, and 10 reveal how the community of immigration advocates, assisted by an Internet that did not exist when the Flores case began, rallied to the defense of the incarcerated families, and how the settlement came back to life to prevent their long-term detention.

Chapter 11 concerns the small family detention center in Berks County, Pennsylvania. It had operated since 2001, but because of its size (only eighty-four beds) and the rapidity with which it released most of the children held there, it initially attracted little attention. That changed in 2015, when the government started sending families to Berks to avoid having to release them, pursuant to a court order in the Flores case, from imprisonment in Texas. At that point, litigation in Pennsylvania over state licensing of the Berks facility began to parallel ongoing litigation in Texas.

Chapter 12 surveys the policies of the Trump administration on detention of migrant children.⁷ The administration has sought to reverse nearly all of the reforms of the previous thirty years. As part of a broad anti-immigrant effort, it tried to deter migrants, including children and families with children, from coming to the United States to seek asylum. It called for repeal of the protective provisions of the 2008 law that Congress passed to assure humanitarian conditions for unaccompanied children awaiting hearings. It unsuccessfully sought reversal of the 2015 court decision that held that the Flores settlement applied to accompanied and unaccompanied migrant children. When that failed, the government embarked on a politically and legally disastrous program of criminally prosecuting mothers who brought their children to the United States. This had the effect of separating children from their parents. In many instances, the government failed to keep records of where the children were sent. When a court ordered that the children be returned to their parents, this failure made the order difficult to implement.

Unable to persuade Congress either to amend the 2008 law or to overturn the Flores settlement, the administration sought to overturn it unilaterally by issuing an administrative regulation, an initiative guaranteed to lead to many more years of litigation. Attorney General Jeff Sessions also issued an edict purporting to bar most victims of domestic violence or gang violence from asylum, prompting a lawsuit that enjoined DHS from implementing his decision. President Trump followed with a regulation withholding asylum from immigrants who cross the border without permission, even as his administration prevented more than a limited number of people from seeking asylum at legal border crossings. The administration also adopted a plan to force Central American families to remain in Mexico for months or years while waiting for immigration court hearings. It also threatened to impose crippling tariffs on Mexican goods unless Mexico curbed the number of migrants transiting through that country or signed a safe third country agreement with the United States. Under U.S. law, the existence of such an agreement could deny asylum to any non-Mexican refugee who passed through Mexico. Central American as well as other refugees would instead have to seek asylum in Mexico, even though Mexico lacks the resources to process or protect very many refugees. Mexico resisted signing such a pact. But the Trump administration pressured the government of Guatemala to agree to accept the transfer of all non-Guatemalan adults whose asylum claims the Trump administration does not want to consider.

A conclusion assesses the impact of the Flores case and the state of play in the continuing struggle between the government and immigrants’ advocates over the duration and conditions of confinement of children who seek safety in the United States. It includes my recommendations for reforming a system that over the years has caused anguish and trauma for parents and children alike in our nation’s baby jails.

1

Jenny Flores

1985–1988

HAROLD EZELL’S JAILS FOR CHILDREN

In 1985, fifteen-year-old Jenny Lisette Flores traveled alone from war-torn El Salvador to the United States, hoping to be reunited with her mother, who was living in California. Like many children who had fled the civil war in her country, she had no visa. The Immigration and Naturalization Service (INS) apprehended her and took her into custody shortly after she crossed from Mexico into California, but she could not be deported until she appeared before an immigration judge to determine whether she had any basis for being allowed to remain in the United States. The judge might find, for example, that she had a claim to U.S. citizenship based on the citizenship of one of her parents, or that she was eligible for asylum. Or the judge might decide that she had no valid claim and should be sent back to El Salvador. But months might pass before such a hearing took place. For children seeking asylum, it could even be several years before their cases were finally concluded, because either the child or the government could appeal a decision that it didn’t like.¹

At the time, in most regions of the country, when the INS apprehended an unaccompanied child traveler who had never received permission to enter the United States, it would release the child to a parent or legal guardian in the United States until an immigration court could decide whether the child was eligible for asylum or other relief from deportation. If no parent was present in the country, it could release the child to an other responsible party who would promise to bring the child to court when required.² Such a party could be a relative or a child welfare agency. But things were different in the INS’s Western Region, which included California.

The INS Regional Commissioner was Harold Ezell. He had been an executive for Wienerschnitzel International, a hot dog franchising company, before he joined the Reagan administration in the early 1980s.³ He believed that illegal immigration will destroy what we know as a free society in the next five to ten years ⁴ and was among the first to start the drumbeat against what he called an ‘invasion’ of illegal immigrants.⁵ He reportedly stated in a 1985 newspaper interview that some undocumented immigrants should be skinned and fried and then deported.⁶

Notwithstanding the child detention policy in effect elsewhere, in 1984 Ezell had adopted a stricter policy for the release of children apprehended in his region. He decided that in California and the other Western states, which happened to be the location of most of the nation’s unaccompanied child migrants, the INS would routinely release a child who was in deportation proceedings only to a parent or lawful guardian. His office would release the child to a different responsible adult only in unusual or extraordinary cases. ⁷ It didn’t consider Jenny’s case unusual or extraordinary. Therefore, Jenny could be detained for as long as it took for her to get a hearing before a judge.

Jenny’s mother would have been happy to be reunited with her, but she was herself undocumented, so she was afraid to report to any INS office or facility, such as the one where Jenny was being held, fearing that both she and her daughter would then be deported to El Salvador, where a civil war was raging. Her fear was reasonable, because INS officials acknowledged that undocumented adults who showed up to claim their children were subject to arrest and deportation. ⁸ In fact, undocumented mothers who went to INS jails to post bond⁹ for their children were sometimes put into deportation proceedings along with their offspring.¹⁰ Decades before the phrase made headlines, Jenny and others like her were subjected by immigration authorities to family separation.

The INS detention center at the Mardi Gras Motel, 1985.

But Jenny’s mother had an alternative. Jenny’s aunt and uncle lived in Los Angeles and were willing to look after Jenny.¹¹ The uncle was a U.S. citizen, and the aunt had a green card. Because Jenny had been captured in the Western Region, however, the INS would not release her to someone other than a parent.

Jenny was not in an ordinary jail. The INS had hired a private for-profit contractor, Behavioral Systems Southwest, to house detainees in Los Angeles.¹² That company had taken over the Mardi Gras Motel in Pasadena, drained the swimming pool, covered the front of the property with chain-link fence, and strung up concertina wire.¹³

Male and female adults and children inhabited this makeshift jail. The children mixed freely with the adult detainees. Jenny shared sleeping quarters with seven other children and five adult women, none of whom were related to her. Like her fellow detainees, she was given no educational instruction or recreation and no reading materials except some English-language magazines that she could not understand.¹⁴ Visitors were not allowed.

The children at several of the other INS jails in California and Texas fared even worse. They were strip-searched when they first arrived and when visited by anyone other than lawyers.¹⁵ At one detention center in Texas, girls were vaginally and rectally searched as well.¹⁶ At another large detention facility for immigrants in Southern California, the staff would bring minors into the gym every morning, erect a screen between boys and girls, and search everyone . . . [though they] never found anything in body cavities.¹⁷

When the INS first took Jenny into custody near the border, on May 15, 1985, she had refused to sign any documents without the advice of a lawyer. The INS officials told her that all Salvadorans were idiots and pubic hair. When she asked where she could remove the fingerprint ink from her hands, an official told her to wipe them on her face, and she complied; the official then laughed at her. Eventually she was transferred to the Mardi Gras Motel. A doctor who examined her after she had been there for two months concluded that the stress of her confinement had resulted in intermittent preoccupation with death, anorexia and depression.¹⁸

Jenny was one of about five thousand children detained by the INS each year in the late 1980s, most of whom did not have lawyers.¹⁹ Many of them were sixteen or seventeen years old, including teenaged boys who had fled from violence associated with military forces. One such youth was Francisco (not his real name). When he was eight years old, Sandanista soldiers in Nicaragua had killed Francisco’s father, older brother, grandfather and uncle. His mother sent him to Honduras, where he lived on the streets before fleeing to the United States at the age of seventeen. Another boy saw his parents and three sisters shot in a village square; he had walked from El Salvador to Texas to escape the same fate.²⁰

Some of the children in INS custody were much younger. In 1988, for example, the Border Patrol picked up three Honduran girls, ages seven, five, and four. The oldest one had a tattered slip of paper in her pocket with a Miami phone number that turned out to belong to the parents of the younger children.²¹

Jenny Flores was unusually lucky, however, because she was only three degrees of separation away from a lawyer who could make a difference. Imprisoned with her was Alma Cruz, the twelve-year-old daughter of Alma Aldana, a housekeeper for the actor Ed Asner, who had starred in The Mary Tyler Moore Show. Like Jenny, Alma Cruz was being held in the motel because Aldana, who was also undocumented, was afraid of claiming her.²² Asner knew that he could help to solve the girls’ problem by calling an attorney whom he knew well.

PETER SCHEY

A vocal critic of the Reagan administration, Asner had been active in promoting peace in Central America and had co-founded an organization known as Pax Americas to lobby for an end to the region’s civil wars.²³ He also had been involved in protests against the administration’s efforts to deport Central American refugees. In connection with one such protest, at which arrests were expected, Asner had consulted with Peter Schey, a lawyer who had founded the National Center for Immigrants’ Rights, which later became the Center for Human Rights and Constitutional Law. To help his housekeeper and her daughter, Asner called Schey.²⁴

Schey had dedicated his legal career to the defense of immigrants. His father, a Jewish opponent of the Nazis, had fled Europe in 1938, on one of the last planes from France to England. He had ended up in South Africa, where Peter was born in 1947. As a young teenager, Peter participated in protests against apartheid. In 1962, when opposition to apartheid had become too dangerous even for white activists, the family moved to San Francisco.²⁵

Schey was arrested in a protest against the Vietnam War while he was an undergraduate at Berkeley. He went on to study at the California Western School of Law in San Diego, where he received his law degree in 1973. While in law school, Schey enrolled in a legal aid clinic. In his first case, he discovered that the San Diego County hospital was notifying the Border Patrol when an undocumented pregnant woman wanted to give birth there. The Border Patrol would then deport the woman to prevent her baby from becoming a U.S. citizen. Schey threatened to sue the hospital. As a result, the hospital stopped cooperating with the Border Patrol.²⁶

After finishing law school, Schey began to represent immigrants, first in San Diego and then in Los Angeles. This work quickly became full-time. His first class action was a successful suit against the INS to force it to provide everyone who was in deportation proceedings with a list of free local legal services.²⁷ Over the years, he initiated other important class actions on behalf of Central American immigrants and refugees. In the late 1970s he brought a case against the Houston Independent School District, the largest school district in Texas, challenging its denial of secondary education to undocumented children. He argued that refusing to educate these children was a denial of the equal protection guaranteed by the United States Constitution. While the suit was pending, Schey discovered that state officials were getting federal funding for migrant children that they had expelled from school.²⁸ The case was consolidated with a similar suit in another district, and it went all the way to the Supreme Court.²⁹ In 1981, he was one of two lawyers who argued for the children in the Supreme Court. By a 5–4 vote, the justices agreed that the Constitution required states to allow undocumented children to attend public schools.³⁰

Peter Schey in 2017.

THE FLORES CASE BEGINS

After receiving Asner’s call, Schey went to the converted motel in which the children were incarcerated. He was horrified by the prison-like conditions. He quickly contacted the next of kin of several of the children in the motel, including Jenny, and offered to try to help all of them, without charge.

Jenny Flores had been jailed for nearly a month at that point. The government had set bond for her at $2000. If she did not raise the funds or agree to return to El Salvador, the government would detain her indefinitely.³¹ And officials had not told her about Ezell’s policy, which would keep her in jail even if she did raise the funds. Schey’s co-counsel, Carlos Holguín, the second-most experienced lawyer in Schey’s office, asked for the bond amount to be reduced, and a judge reduced it to $1500. Only then did an official reveal that even if she paid it, she would not be released until a parent or legal guardian picked her up, a condition that she could not meet.³²

On July 11, 1985, after taking statements from several of the children and their relatives, Holguín filed a federal lawsuit titled Jenny Lisette Flores v. Edwin Meese III, Meese being President Reagan’s Attorney General, whose Department of Justice included the INS.³³ Over the next thirty-five years, however, many subsequent attorneys general would be named as substitute defendants in what