Families as Geopolitical Vulnerabilities

While unaccompanied children present immigration officials and courts with con­tradictions between children’s vulnerability and agency, families are privileged in immigration law and enforcement.

While admission categories both limit and privilege certain forms of family unity, enforcement practices produce a more complex legal terrain for families migrating or seeking asylum in the United States. Families have traditionally been released with Notices to Appear (NTAs) before an immigration judge, but in March of 2001, the US Immigration and Naturalization Service (INS) contracted with Berks County, Pennsylvania, to detain families in a recently vacated elderly care facility. Housing 84 people, the Berks County facility opened as an extension of an existing juvenile detention program which was in compliance with the Flores agreement (Women's Commission 2007). Then INS claimed to have opened Berks to allow the agency time to establish families' identity, but for asylum-seeking families, this process sometimes dragged on for years (Women's Commission 2007). In 2003, the Office of Detention and Removal Operations (DRO) stated plans to expand its capacity to detain families and other vulnerable populations, citing its reliance on substandard and prison­like facilities as its primary impediment (US Immigration and Customs Enforce­ment 2003).

Following the attacks of 11 September 2001, the INS suspended all refugee resettlement, and the REAL ID Act implemented new security screenings and evidentiary requirements for both refugees and asylum-seekers (Cianciarulo

2007). All noncitizens seeking entry - humanitarian or otherwise - to the United States were viewed with suspicion, and beginning in 2003, the new Department of Homeland Security scoured immigration enforcement policies for vulnerabilities. In this context, ICE argued that releasing families represented a “loophole” that enabled adults who would otherwise be subject to mandatory detention to be released from custody:

By expanding Expedited Removal to cover illegal alien families, DHS is closing down a loophole that has been exploited by human smugglers and helping stop future illegal immigration...

Seeking exploitable opportunities for release, DHS came to understand families' special status - implicitly based on children's special status - as a vulnerability in border security. Emphasizing smugglers' criminality over the children being traf­ficked, ICE evoked the intentionality of adult illegal immigration, which framed family detention as both a crime prevention strategy and a corrective to family separation. More importantly, DHS collapses smuggling with “future illegal immi­gration,” criminalizing family migration in general and obscuring the legal grounds (such as asylum) for families' presence in the United States. In this context, ICE opened the T. Don Hutto Correctional Facility as a “Family Residential Facility” in May of 2006. The expansion multiplied family “bed space” sixfold, from 84 to 596 beds, in an effort to hold all families of questionable immigration or asylum status.

7.1 Bunikyte et al. v. Chertoff et al.

Built by the Corrections Corporation of America (CCA) in 1995, the T. Don Hutto Family Residential Facility operated as a medium-security prison for prisoners from Oregon, a federal pretrial detention center and a US Marshalls' detention center. In 2006, Williamson County, Texas, and ICE entered into an Intergovern­mental Service Agreement (IGSA) authorizing the detention of “alien families” at Hutto, and Williamson County subsequently changed its contract with CCA to accommodate the detainees.

Hutto retained the double fencing, concertina wire, automatically closing and locking doors, cell blocks, regimented daily schedules, surveillance, discipline, and supervision of its previous life as a prison. CCA staff issued families with uniforms, prohibited them from bringing “contraband” (drawings, crayons, toys) into their cells, and offered little medical or mental health care. Muslim women were not allowed to wear their own headscarves, and the facility’s schedule often prevented daily prayers. CCA staff performed headcounts two to three times per day, in which families were required to stay in their cells until two staff members counted and recounted every detainee. This amounted to 11-12 h of confinement per day, preventing outdoor recreation and exercise, not to mention freedom of movement. The cells included a bunk bed, crib (if necessary), and open toilet. Children received 1 h of education per day, and many became ill from the food.

A cement facility with little natural light, the rooms were cold in the winter and humid in the summer, and toilets frequently backed up. Trained as correctional officers, CCA staff threatened confinement and separation as disciplinary tools and received no retraining to address the needs of asylum-seekers, migrants, children, and families (American Civil Liberties Union 2007; Bunikyte et al. v. Chertoff et al. Complaint for Declaratory and Injunctive Relief).

7.2 Children's Rights as Family Rights

So far this chapter has reviewed the context of children’s and families’ legal status, the rationale for family detention policy, and the conditions of confinement families faced. While it is specific to Hutto, the text of Bunikyte’s litigation shows how plaintiffs’ attorneys, ICE, the federal judge, and the plaintiffs’ parents figured children's and families' legal status in different ways. In April of 2007, the American Civil Liberties Union, University of Texas Immigration Law Clinic, and private law firm LaBoeuf, Lamb, Greene, and MacRae LLP sued the Depart­ment of Homeland Security for noncompliance with Flores on behalf of 26 children detained at Hutto. Based on the conditions described above, the lawsuit charged ICE with violating its obligations under Flores on 17 counts and sought “to enforce the Flores Settlement on Saule’s behalf, to secure her release, and to ensure that she is not separated from her mother and her sister” (Bunikyte et al. v. Chertoff et al., Complaint for Declaratory and Injunctive Relief, 1,4).

In addition to guaranteeing detained children “home-like” conditions and social services, Flores mandated a preference for both release and family unity. A presettlement Supreme Court ruling stated, “the parties to [Reno v. Flores] agree that the [Immigration and Naturalization] Service must assure itself that someone will care for those minors pending resolution of their deportation proceedings. That is easily done when the juvenile's parents have also been detained and the family can be released together” (Reno v. Flores 1993). Figuring the plaintiffs as both rights-bearers and relational subjects, the attorneys argued that children's rights included family release.

As the judge pointed out in the initial hearing, ICE could have complied with Flores by releasing the children to other family members and keeping parents in detention, a veiled threat that resulted in plaintiffs filing restraining orders to prevent separation (Bunikyte v. Chertoff et al., Motion for Temporary Restraining Order to Prevent Separation from her Mother, 2-3). In response to this legal - and potentially spatial - splicing of the family, the plaintiffs asserted that children’s rights to family unity did not transfer rights from children to parents:

[H]er individual claims under the Settlement are directly affected by her ability to remain in close proximity to her mother - an outcome that is clearly favored by the general policy favoring release to a parent under Flores. (Bunikyte v. Chertoff et al. Plaintiff’s Reply in Support of her Motion for a Preliminary Injunction Ordering her Immediate Release from Hutto With Her Mother, 2-3)

Children have a right to spaces with parents in them, therefore, but parents have no legal right to the same. This configuration of child-based family rights did not technically endow noncitizen parents with their own rights, but covered families under an umbrella of children’s protections, without challenging the exclusionary immigration regimes that confine adults more broadly. The plaintiffs’ difficulties in developing even the most generous application of children’s rights to families highlight the contradictions between rights afforded the child, who is always already in relation to a series of caregivers, and the suspension of legal protections for their immediate caregivers.

7.3 The Right to Care

While the plaintiffs were children, the litigation revolved around parents’ testimo­nies of the disintegration of relations of care and psychological examinations of the detained plaintiffs. Primarily asylum-seeking families, the plaintiffs’ complaints included details of their parents’ rape, torture, and persecution. Their testimonies bore complex and contradictory tales of breakdowns and refusal, of the embodied effects of carceral detention, and of their rejection of that same criminality. Articulated through the spaces of everyday parenthood - bedrooms, bathrooms, kitchens, and schools - parents’ testimonies revolved around the interdependencies necessary for social reproduction:

In this jail, Majid and I cannot be good parents. We cannot provide Kevin with the basic things that he needs. We cannot give our sick child inhalers for his asthma or cream for his eczema or food for his health. We cannot give him a pen to write with or any books to read. We cannot teach him about the outside world or let him run around the way young boys should. We are totally helpless as parents and depend on the guards for everything. They control our every movement and activity, from the time we eat to the time we see each

other. We cannot even turn off the light at night when we want to go to sleep. (Yourdkhani

v. Chertoff et al. Declaration of Masomeh Alibegi, 2)

Hutto's disciplinary order disrupted the energetics of care - the eating, playing, bathing, and napping - that defined their role as parents. The testimonies allude to a litany of questions from children and parents' increasing frustration at their inabil­ity to satisfy them. These narratives belied, in minute detail, ICE's claims about the “residential” character of the facility, by showing how the normal relations of care and parental authority, which implicitly define “the home,” were disrupted by the guards.

The spatiality of familial care was, therefore, regulated at a bodily scale. The everyday metabolism of care, through which the plaintiffs' mothers defined their identities as mothers, was undone by the carceral ordering of space, time, and authority within Hutto.

I can't talk to anyone because I only speak Creole. I have to rely on Sherona to translate from Creole to Spanish and then whoever else is around to translate from Spanish into English if I need to ask for something. I am dependent on my daughter in a way I would not be if were not in jail and it is inappropriate for a mother to have to rely on her daughter this way, it is like making her into the mother and me into the child and she is only thirteen years old. (Verdeiu v. Chertoff et al., Declaration of Sherona Verdeiu, 3)

These accounts of inverted familial authority evince a frustrated motherhood, in which care and authority are mutually constitutive. Thus, these parents understood the restrictions placed on parental authority as destruction of the family itself. Parents' dependency on guards and surveillance practices formed the basis of a counter-narrative of impotent parental authority, articulated through distorted rela­tions of dependency between parents and children, the annihilation of private space, and emotional unease. Mothers reported anxiety, sadness, exhaustion, crying, sleeplessness, and illness, these physical weaknesses being evidence of their impo­tence as parents.

These testimonies narrated a relationality of parenthood and childhood and of mutual interdependence that far exceeded the legal mechanisms through which the case proceeded. It is not simply that these families viewed children's rights as linked to the narrations of care but that they demanded more spatial autonomy than “the law” could provide, in and through these relations of care. Monopolizing access to food, clothing, blankets, toys, and books, CCA staff overlaid carceral relations of authority over “the architecture of the family unit” which undermined the relations of (inter)dependence between parents and children. Thus, the norma­tive distribution of rights and responsibilities within families is reconfigured so that CCA operated as an in loco parentis, infantilizing parents with respect to their children. Parents' narratives of frustrated care figured, therefore, a range of actors with variegated obligations under immigration law and a wider political economy of deferred responsibility than could be accounted for in the lawsuit's “official” legal argumentation.

7.4 ICE Discretionary Power: Displacing Custody

ICE’s defense counsel argued, however, that Flores did not apply because the children were detained with their parents and that parents were their practical guardians while in detention. For ICE, the illegal status of parents displaced children’s rights, confining children to the status of household property (Thronson 2002). The defense argued, therefore, that the plaintiffs’ only case was “abuse of discretion,” which the defense then argued was an invalid complaint since Congress has endowed the agency with the authority to detain the parents:

...it’s not in the American Civil Liberties Union’s discretion to determine how the government is going to operate its immigration program. It’s the Court’s decision, of course, of whether or not the government is abusing its discretion, and in this case, I would suggest that the government was not. (ICE attorney Victor Lawrence, Emptage et al. v. Torres et al. Transcript of the Injunction for Equitable Relief, 236)

ICE’s legal approach attempted to displace children’s rights to “home-like environments” under Flores on the basis of their parents’ illegal status. Emphasiz­ing the criminality of the migrant-subject, ICE sought to shift the case to discussion of territorial sovereignty and security, over which ICE had established authority and federal courts did not.

Approaching family detention in the context of enforcement-led immigration policy, ICE emphasized the agency, autonomy, and intentionality of parents, especially parents’ intentional breaking of immigration law: “of course, they’d rather be free, but they did break the law. They did break the law and they came to the United States illegally, and the government has the right to detain them” (ICE attorney Victor Lawrence, Emptage et al. v. Torres et al. Transcript of the Injunc­tion for Equitable Relief, 23). ICE’s argument had three important effects. First, by emphasizing parents’ intentionality, the defense erased children’s rights under Flores, effectively arguing that Flores did not apply to children accompanied by undocumented parents. From this perspective, the only way for children to access their entitlements under Flores would be to separate them from their parents in ICE custody. Secondly, ICE argued that families were legally considered accompanied adults. Third, charging parents with custodial responsibility within Hutto trans­ferred responsibility for the care/harm of children from ICE to the parents. Their argument consolidated rights in ICE’s executive discretion and responsibility for the rule of law, childhood development, and everyday care in the parents, for whom there are few legal frameworks to challenge ICE’s discretion.

ICE’s legal arguments emphasized the plenary power over immigration law, a position that relies upon a criminalized (adult) migrant-subject. Emphasizing terri­torial vulnerability, ICE inscribed responsibility for border security onto each individual migrant crossing the border, regardless of the context of their individual migration. The defense’s argument thereby mapped a geopolitics of vulnerability that figures the United States as the sole victim of violence. Understood exclusively in terms of their illegal entry, the parents faced a legal terrain of all-responsibility- no-rights, and the corollary displacement of children’s rights allowed them no agency and therefore no rights. This coupling of hyper-vulnerable American terri­tory with the hyper-responsibilization of individual adult migrants prioritized universalized “public interest” over the claims of specific children.

7.5 Calculating Irreparable Harm

Where the plaintiffs sought to use children’s rights as an umbrella over the entire family, the defense’s argument telescoped any family rights into a discussion of parental illegality. The judge was unconvinced, however, by ICE’s argument that the agency’s discretion to detain annulled the application of Flores to the Hutto facility, but worried that the plaintiffs’ arguments transferred children’s rights to the parents that would eviscerate their responsibilities for legal border crossing. The judge posed an opposition, therefore, between the rights of children (to release and family unity) and ICE’s discretion and by extension the plenary doctrine of immigration. Ultimately, the judge agreed that ICE retained discretion over the detention of parents, despite the Flores settlement and Reno v. Flores’ clear preference for releasing families. Thejudge thereby affirmed children’s subordinate position in immigration law and enforcement, reproduced the culpability and criminalization of parents, and voided the possibility of family-based legal claims in enforcement matters.

But even without granting parents rights through their children’s claims to the Flores agreement, the judge had the authority to release the families. To grant preliminary injunction - in this case the immediate release of the families from Hutto - the plaintiffs needed to meet four criteria: (1) substantial likelihood that Hutto violated Flores, (2) substantial threat that the children would suffer irrepa­rable injury if not released from Hutto, (3) the threatened injury to the children outweighed any damage that release would cause ICE, and (4) release would not disserve the public interest (Bunikyte et al. v. Chertoff et al. Order April 9, 2007, p. 11).

Because of the overwhelming evidence from parents’ testimonies that Hutto violated the Flores Settlement, the judge readily agreed that the conditions at Hutto violated Flores’ stipulations on conditions of confinement. The remaining criteria demanded, however, a calculus of harm between detained children, ICE, and a universalized “public interest” (see also Bhabha 2000). First, the judge refused to undermine ICE’s discretion to detain noncitizens in violation of immigration laws. Coming to this conclusion, he argued, invalidated the plaintiffs’ claims to irrepa­rable harm because “the detentions themselves were entirely lawful” (Bunikyte et al. v. Chertoff et al. Order, 36). That is, “irreparable harm” could only be established by challenging the legality of ICE’s discretion, which is the basis for the plenary doctrine in immigration law. Defining law and irreparable harm as mutually exclusive worked, further, to cleanse the federal court of its own respon­sibility for children’s harm, mystifying the violence authorized in and through the law.

Second, agreeing with ICE’s defense, the judge minimized the harm to the detained children by emphasizing their small number and normalizing the trauma incurred during migration. He did not dispute the fact that detention would harm children but that detention was the only harm done to them in the process of traveling to the United States:

I am not convinced that there is irreparable injury to the children. I am convinced that there could be injury psychologically to the children. These children come extremely vulnerable because of the circumstances of their being here, not being where they’re secure, not being where they know where they are.... But I don’t think there’s any doubt that living in the conditions that I’ve heard today before the changes certainly didn’t improve the psycho­logical aspect of a young child or adolescent’s life. Now, oddly enough, it may have been a lot better than they were when they - before they were captured. May have been better than it was before they got to this country. But that doesn’t excuse the way we act in this country. (Emphasis added, Judge Sam Sparks, Emptage et al. v. Torres et al. Transcript of the Injunction for Equitable Relief 221, 238)

The harm caused by detention is not irreparable, first, because it is legal and, second, because it cannot be quantified separately from pre-detention trauma. This calculus of harm generalized parents’ abuses across a dangerous “elsewhere” beyond US borders, despite the fact that ICE has detained families from over 40 countries. Framing the United States as the space of law and order, parents’ asylum claims serve as proof of American “exceptional excellence” and the source of childhood trauma (Puar 2007). It is precisely this exceptionality that justifies ICE’s discretionary power at the border, as these zones of illiberal rule both legitimize and maintain the presumably liberal and democratic space of the United States. This dichotomized figuration pathologizes transboundary migration, again displacing responsibility for the effects of detention onto the parents’ choice to migrate.

7.6 Negotiating a Settlement

After the judge ruled that Flores did not establish the right to family release and that detention could not be proven to cause irreparable harm, the parties settled. Where early arguments in the case focused on the distribution of entitlements between family members, the settlement negotiations focused on transforming the spatio­temporal ordering at Hutto from “prison-like” to “home-like” conditions. The settlement included a litany of changes to the physical infrastructure, relationships between guards and detainees, and access to services. Further, the settlement required ICE to review parole, bond, and release decisions for each family on a monthly basis, so that families would not be detained indefinitely. Compliance with the settlement was evaluated semiannually by a federal magistrate, until June of 2009. Ironically, the “benefits” afforded to children under the settlement accrued to not just the plaintiffs but to their parents and to the families detained at Hutto thereafter. Parents could not share children’s rights to release under Flores, but could share their rights to “home-like facilities,” so long as they remained confined from the “legal” population. The right to certain conditions diverges from the spatiality of rights to release; like oil and water, parents' and children's rights can share surfaces, but cannot mix.

8