NOI 2: How Long Should We Keep Immigrant Children in Jail?

Today we're going to talk about the Flores Settlement Agreement, family separation, and the detention of immigrant families.

Jacob Tingen: Hello and welcome to the second episode of Nation of Immigrants! I’m excited to be talking to you again and today we’re going to talk about the issue of detention of immigrants, particularly children and family units as they cross the US Mexico border and frequently get captured by customs and border patrol or ICE officials, and then get placed to detention. How long should it be, should they be there? What are the rules? What’s actually happening in these detention centers? Let’s get started. Welcome again to Nation of Immigrants.

Speaker 2: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Speaker 2: A podcast about us immigration law with your host Jacob Tingen.

Jacob Tingen: Thanks again for coming to watch. Definitely appreciate everyone who is listening and following along on these conversations. I’m excited today again to be talking about detention of immigrants, but I just first wanted to make a quick little plug for this t-shirt. We sell these shirts on our website at Anytime I wear the lawyer up shirt, I get comments about it. So if you’re a lawyer, you know a lawyer, or you just want to have the shirt, look us up. They are available. You can have one just like it. And for many of our clients, we’ll often give them away. It’s kind of been a fun thing that we do.

Jacob Tingen: All right. Well, so back to our topic at hand. Nation of Immigrants, we’re talking about detention of immigrant families. Detention policies really splashed headlines last summer when the Trump administration used a set of laws to try to justify family separation. It’s unfortunate that families were separated in the manner that they were. I knew as soon as I heard about it that there are going to be some kids who never see their parents again and some parents who never see their kids again. I just knew that that would be the case, given my dealings with our immigration system and how unfortunate is that people kind of kind of get lost in the shuffle of government paperwork. That’s a reality.

Jacob Tingen: I have read and recently heard that even though they’ve reunited the vast majority of families, there are still children who aren’t reunited with their families. I’ll share one story about family separation and then I’ll move on to our topic of the day, even though this is related. I remember watching a story about an immigration attorney who went to a border facility detention center, and said, “I want to speak with the following children.” She gave a list to an ICE agent.

Jacob Tingen: The ICE agent went into the jail where people were detained and came back out and and said, “Well, this person isn’t back there.” The attorney said, “What do you mean they’re not back there? They’re supposed to be there. They have to be here at this detention center.” The ICE agent or the immigration agent said, “Well, what I do is I go back and I call their name and if they don’t answer, I mean, they’re not there.” The attorney said, “What are you talking about? This is a two year old. Go back and look again.” And so it’s that kind of just nonchalance about human lives that is disturbing when we talk about the detention of families or separation of families for long periods of time. That’s what causes problems.

Jacob Tingen: Well, so recently in the news, there’s been talk of a new rule that the Trump administration is trying to put out. Yeah. They unveiled a new regulation today that would allow them to indefinitely detain immigrant families. Now, I do want to talk about catch and release at some point, and what that means, and why we do release some immigrants upon their entry to the country. But first I want to talk about why this regulation is being created, what its purpose is doing. You know, why are we doing this? Why is the Trump administration trying to do this?

Jacob Tingen: It all starts back with the Flores settlement agreement. Now, this is a case that initiated in 1985, and it’s unfortunately about a girl by the last name of Flores. She was about 15 years old coming from El Salvador fleeing to the US. She was detained, held in a detention center for adults with both male and female detainees, adult female and male detainees, even though she was only 15. she was strip searched and was told she would only be released into the custody of her parents.

Jacob Tingen: Now in the aftermath of this and a variety of other situations that were similar, because this became a class action, the Flores settlement agreement kind of arose from all of this. What the Flores settlement agreement says is that, well, basically the government settled with, with the class action, with the parties involved. It said that children who are detained, immigrant children who are detained, need to be held in inhumane and reasonable conditions. The idea is is that the settlement agreement wouldn’t be the law forever, but rather that the government would promulgate a new set of rules and regulations to ensure that children are well cared for while they’re in immigration detention. And that in the meantime, the terms of the Flores settlement agreement are in effect, which include things like contacting an adult and having them released to that adults custody within 20 days or to too inappropriate supervisory agency or organization. Okay?

Jacob Tingen: In addition to that requirement to be released as soon as possible, they needed to be held inside reasonable conditions within the jails. Now because children have to be detained for a short period of time pursuant to the Flores settlement agreement. Well, so family groups would come in, they’d come in with children, and then because there were children there, they would be released very, very shortly thereafter. What the Trump administration would do is they’d say, “Well, the parent who’s bringing the child has done so and it has violated criminal law, and so we’re going to arrest them and put them into an adult detention center because that’s what we have to do. They’re criminally detained, and now the children are unaccompanied and we’ll just put them into a separate facility only for children.” That’s why they separated the family so that they wouldn’t have to release people pursuant to this agreement and have them all released into the United States within 20 days. That that was an issue. At least that’s the justification for family separation.

Jacob Tingen: Well, of course that didn’t fly very well, but even since the family separation policy ended, family separations do continue today in certain cases. But you know, at that time it was being applied to every single family unit last summer, so ever since the policy of applying it to every single unit ended, there are still family separations that occur. We hear about them, but there are exigent circumstances in theory and they’re the kind of cases that we look at closely when we hear about them.

Jacob Tingen: Additionally, one of the things we’ve learned as we talk to people about prison conditions is that we’ve learned that it’s a good idea to talk to every single one of our clients about how they were treated. We’ve had clients that while they were detained have been kicked, denied food and water, denied appropriate sleeping conditions, and this matters.

Jacob Tingen: Just to kind of highlight this issue and to make sure that you know that this isn’t just anecdotal, this is happening on a wide scale, I want to bring up this Flores settlement agreement because this litigation is ongoing until the government can present a set of rules that appropriately cares for the children. In 2017, a US district judge, Dolly Gee, found the children who are in the custody of us customs and border patrol, border protection, were sleep deprived because of inadequate conditions. They weren’t getting a food and water, and then they also didn’t have appropriate hygiene supplies. Now, the government appealed this decision and said, “Whoa, whoa, whoa, whoa, whoa. We understand that the children need to be safe, but we’re not responsible for their hygiene. We don’t need to provide them soap and toothbrushes.”

Jacob Tingen: They appealed, and unfortunately in the ninth circuit, they do do oral argument, they record traditionally in a lot of the circuit courts of appeals. But on the ninth circuit, there’s also video, and they captured this on video, a government attorney arguing that the government did not need to provide soap and toothbrushes. Now, you’ll be happy to know that on August 15th a three judge panel determined that yes, the government does need to provide soap and toothbrushes to children that are detained, which should not have been litigated in the first place, but basically just reinforces the need for children to be protected while they’re detained by immigration. It just kind of highlights the need to continue to talk about this issue and to continue to protect children.

Jacob Tingen: Now, I want to address a little bit. I do know that some people will say, “Well, why are these parents bringing their children when they know it’s so dangerous, when they know that this can happen to their kids?” We’re going to save this for another day. I’m going to talk about asylum and why people come across our border and into our country in the way that they’re coming. Frankly, I think once you understand a little more about why it’s happening, your heart will go out to these people and you’ll realize that they’re not out to violate our laws, they’re out to survive. That’s a reality for many, many, many, many people.

Jacob Tingen: Of course, there are going to be people out there who are coming just to improve their economic outlook in life, which by the way, should not be a crime. But additionally, there are many, many, many people fleeing for their lives. We will talk about this. But when it comes to protecting children and their interests, this is the kind of thing that everybody should be able to get behind.

Jacob Tingen: Well, let’s talk about this new regulation that the government wants to come out with. Basically, the Flores settlement agreement says, “Hey, if you come up with a better idea, it can go into effective 45 days.” Now, it’s subject to the judge’s approval in this ongoing litigation on the Flores case, but what Trump is trying to do, or that the Trump administration is trying to do, is to create a regulation that would take place of the Flores settlement agreement and allow them to detain family groups all together.

Jacob Tingen: Now, the purpose of the regulation is to keep these families detained for as long as it takes for them to run through our immigration process, through our immigration court system. Now, I will tell you their regulation says it would only be for a period of three months. It would be a relaxed jail, yet still a jail. You know. It would be family friendly with top notch food, but it’s still a jail.

Jacob Tingen: I just think that that’s important. We need to remember, no matter how nice it is, it’s a jail. If it looks like a jail and acts like a jail, let’s call it a jail. So they want to keep families in jail for as long as it takes for them to go through the immigration court process. They’re saying, “Oh, and of course we’re going to get these people through in three months.” I don’t trust that, for a wide variety of reasons, among which, how can you predict how it’s going to take? Because there are a lot of processing, and timelines, and dates for things that are in our nation’s laws for how long things should take to be processed, but they frequently take much longer. Then just concerns about due process, which is this constitutional legal principle that everybody should get their day in court and that their rights should be protected. That might take longer than three months for many of these families. And if we’re truly believing in the constitution and in our rights, then anybody should be concerned that we’re just going to keep people in jail for as long as it takes to figure out what’s going on with their immigration case and whether or not they should be granted asylum or not.

Jacob Tingen: Now keep in mind, I’m not opposed to people having a hearing, people having a determination before they get released into this country, and like I said, we’ll talk about catcher release on another day. We’ll talk about the credible fear review process and why it exists and why that’s a good solution. It’s the one we already use. There’s no need to keep these families detained in the way that we do.

Jacob Tingen: Other questions that come up, I’m sure if you’ve heard the news is, “Well, what about people not showing up to their court hearings?” That’s the government’s fault and we’ll talk about that on another day as well. There are a lot of things here that get really detailed and that I could talk about for hours, and we will eventually in this podcast, that’s what it’s for. But I am going to start here by saying this rule, this new kind of regulation proposal work. “Oh no, no, no, no. Well now we’re going to keep families together so that we can deport them quicker as a family.” I just don’t buy it. It’s not going to work in the way that they expect, that we would expect. What would end up happening if this rule went into effect is that families would languish for months and possibly even years in a detention center, and that’s just not what America is about. We don’t want large camps filled with families that are waiting for a trial date.

Jacob Tingen: Now, I can tell you my experience in the immigration court. I have cases with individual hearing dates in 2023, 2024. Typically when somebody is detained, they get a hearing a lot more quickly than that. They’ll get a hearing in three to four months, but it’s not unusual to have a client who’s detained and who won’t get a hearing for six, seven, eight, nine months. And many times when I have a client that’s detained, they’ll express concern about being there as long as they are, they’ll want to get out. Then frequently when we talk with immigrants about their conditions in jail and what they’ve been through, they’ll say that they’ll make comments, or ask for food and water, or ask for other kinds of benefits, not benefits. They’re in a jail. Not benefits, but just things you would expect like soap and toothbrushes and be denied and told, “Well, look, if you can’t hack it, why don’t you just sign this deportation order?”

Jacob Tingen: This is inappropriate behavior, and as a country we can do better and be better. I don’t believe that this is what America is about for many of us. I think that, well, I know that this is not the promise of America that people come to our country for.

Jacob Tingen: So how long should we detain immigrant children and families? That’s a question that we’re debating. That’s why we’re talking about it, but you need to know the reality. Over the next couple of podcast episodes, we’re going to talk about issues related to catch and release. We’re going to talk about credible fear interviews. We’re going to talk about why people come. But we should also talk about what we do when people get here. That’s why we decided to start today with this discussion.

Jacob Tingen: I hope you’ve enjoyed Nation of Immigrants. You can follow us on Facebook, YouTube, Twitter, and yeah, thank you again for listening. We’ll be on iTunes also with our podcast. Find the tee shirts online. We’ll probably have a Nation of Immigrants tee shirts available soon too, and thanks again for listening.

Speaker 2: Thank you for listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Speaker 2: Subscribe to the podcast on iTunes, watch the live stream on YouTube and Facebook, or visit to learn more.

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