RECOMMENDATIONS ON

FAMILY SEPARATION CRISIS

Immigrant Family Separation, Detention Centers, & the
Zero-Tolerance Policy

July 24, 2018

MALC Working Group

Representative Mary González, Chair
Representative Diego Bernal | Representative Jessica Farrar | Representative Gina Hinojosa |
Representative Tracy King | Representative Lina Ortega | Representative Eddie Rodriguez |
Representative Ramon Romero | Representative Armando Walle

MALC Executive Board

State Representative Rafael Anchia, Chair
State Representative Mary Gonzalez, Vice Chair
State Representative Armando Martinez, Secretary
State Representative Justin Rodriguez, Treasurer
State Representative Ana Hernandez, General Counsel
State Representative Eddie Rodriguez, Policy Chair
 EXECUTIVE SUMMARY

According to recent reports, over 2,300 migrant children were separated from their parents
and/or family at the U.S./Mexico border between April and June 2018 as a result of the
Department of Justice’s zero-tolerance policy.1 The zero-tolerance policy implemented in April
2018 directed the criminal prosecution of all migrants entering the United States illegally
whether or not the individual was seeking asylum or refugee status.2

The Mexican American Legislative Caucus organized a working group of advocates,

representatives from state agencies, members of the Texas House, as well as capitol staff
members to assess recommendations and assist state officials in providing impacted migrant
families with appropriate care and determining the role of the state of Texas in the reunification
process of children and families. During the MALC public hearing and following work group
meetings with immigration experts, health and child welfare advocates, child-facility operators,
and state agency officials, it was determined that:

● Family separation and placement in detention centers inflicts trauma and has negative
mental and physical health impacts on children and families. Studies show that even short
periods of detention can cause trauma and negatively impact a child throughout their
lifetime.3 Therefore, an increased presence of both trauma-informed care and counselor
care at facilities is needed immediately.
● Under current state law, the Texas Health and Human Services Commission (HHSC) and
the Department of Family and Protective Services (DFPS) have authority to provide
oversight and investigate cases of abuse and neglect. While both agencies are currently
conducting those operations, there is evidence that increased oversight and enforcement
is needed. The state must prioritize the safety of children in state-licensed facilities by
increasing the number of site visits, allowing for unannounced visits, and increasing
minimum health standards within facilities.
● Direct care organizations that assist in legal representation and provide well-being
services for children are experiencing massive government roadblocks to provide services
and gain access to information. We recommend that state agencies cooperate with
organizations providing legal representation, and encourage their assistance in creating a
more transparent process between state and federal agencies. Further, we recommend that
the state improves their reporting methods and data collection on the immigrant children
held in facilities licensed in Texas, including but not limited to, gender, age, disability
status, and country of origin.
● Currently, immigrants seeking asylum or refugee status are not guaranteed legal
representation. ​Furthermore, basic due process for asylum seekers as guaranteed by the
U.S. Constitution is being denied under the current policy. ​Given that the crisis has

1
NPR, “What We Know: Family Separation and ‘Zero-Tolerance’ at the Border”
https://www.npr.org/2018/06/19/621065383/what-we-know-family-separation-and-zero-tolerance-at-the-border
2
U.S. Department of Justice Memorandum, April 6, 2018
https://www.justice.gov/opa/press-release/file/1049751/download
3
​Texas Pediatrics Society, ​Re: PROPOSED RULE, CHAPTER 748,
https://txpeds.org/sites/txpeds.org/files/documents/newsletters/tps-comments-on-dfps-detention-center-licensing.pdf
1
 plunged thousands of children into immigration court without their parents, the state of
Texas has a responsibility to assist minors with their right to legal representation.
Legislators can do this by ensuring that appropriate funding is allocated to pro-bono legal
agencies.

The Mexican American Legislative Caucus strongly opposes the separation of children from
their parents or families who are seeking refugee status as a result of violence or extreme poverty
and who pose no danger or security threat to the United States. We strongly urge the federal
government to immediately reunify children with their families, remove barriers for non-profit
organizations to assist with reunifications, expedite the removal of children from any detention
or jail-like settings, and repeal the zero-tolerance policy implemented by the Department of
Justice earlier this year.

BACKGROUND

The zero-tolerance policy implemented by the Trump Administration removed prosecutorial

discretion by directing U.S. Attorney’s Offices along the southwest border to criminally
prosecute all immigrants seeking illegal entrance to the United States. According to a statement
released by Attorney General Jeff Sessions, the zero-tolerance policy was in response to a spike
over the last year in border crossings from Central America.4

A move to voluntarily prosecute all immigrant adults in criminal court rather than immigration
court led to migrant children being separated from their parents or family, given that children
cannot be detained or held in criminal settings.5 Therefore, while the parent or family member is
processed in criminal proceedings, the children are held in separate detention centers without
adult family or guaranteed access to legal representation. In many circumstances, the immigrant
child and parent are unaware of the whereabouts or status of the other.

Furthermore, there is evidence that the administration’s policy is denying asylum seekers basic
due process rights guaranteed by the U.S. Constitution.

Immigration advocates and legal organizations sounded an alarm in May 2018 after seeing a
surge of unaccompanied minors being detained in detention facilities throughout Texas. Over the
last two months, the news of thousands of children being separated from their parents, some only
a few months old, sparked outrage at the policy.

President Trump issued an executive order on June 20, 2018 ending the administration’s practice
of separating families at the border. However, the executive order left in place the zero-tolerance
policy and was unclear on how the administration would handle cases in the future. Additionally,

4
​“Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry.” ​The United States Department of
Justice​, 6 Apr. 2018,
www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry
5
NYT, “Breaking Up Immigrant Families: A Look at the Latest Border Tactic,”
https://www.nytimes.com/2018/05/12/us/immigrants-family-separation.html
2
within his executive order, President Trump requested to allow for long-term detainment of
migrant children, an action currently restricted under the Flores Agreement. This agreement,
settled in 1997, states that children can only be held in immigration detention for up to 20 days.
The Trump administration’s new executive order sought to suspend the Flores Agreement in
order to allow for family detention, citing this as the only solution to avoiding family separation.
Judge Dolly Gee rejected this request, stating "that Defendants’[U.S. Department of Justice]
Application is a cynical attempt, on an ex parte basis, to shift responsibility to the Judiciary for
over 20 years of Congressional inaction and ill-considered Executive action that have led to the
current stalemate.” Judge Gee went on in the order to state that, “the children who are the
beneficiaries of the Flores Agreement’s protections and who are now in Defendants’[U.S.
Department of Justice] custody are blameless. They are subject to the decisions made by adults
over whom they have no control.” 6

As a result, there is a new set of legal issues regarding family reunification and courtroom
proceedings for thousands of children split up from their parents. According to the El Paso
Times, only 57 children were reunited by the July 10 deadline.7 The New York Times has
reported that “records linking children to their parents have disappeared, and in some cases have
been destroyed, according to two officials of the Department of Homeland Security, leaving the
authorities struggling to identify connections between family members.”8

TEXAS STATUS

In June of 2018, HHSC

indicated that over 5,100
unaccompanied children were
being held in child detention
centers located in Texas, which
was an increase of 920 children
from the previous month. There
are 37 facilities licensed by
HHSC that contract with the
Office of Refugee Resettlement
to hold unaccompanied children,
which excludes the temporary
facility located at the Tornillo
Port of Entry in El Paso. Of the
37 facilities licensed to hold

6
​Jenny L. Flores, et al. v. Jefferson B. Sessions, III, et al., United States District Court Central District of California,
July 9, 2018 https://www.aila.org/File/Related/14111359ac.pdf
7
El Paso Times, Trump administration reunites 57 immigrant children with parents after missing court-imposed
deadline​,
https://www.elpasotimes.com/story/news/nation/2018/07/12/immigrant-children-reunited-parents/778253002/
8
NYT, “Trump Administration in Chaotic Scramble to Reunify Migrant Families,”
https://www.nytimes.com/2018/07/05/us/migrant-children-chaos-family-separation.html
3
children, HHSC approved 16 variances that allow licensed facilities to operate above their
originally approved capacity. 9

In addition to the child detention centers, Texas has one of the highest concentrations of
long-term immigration detention centers in the country. As of 2016, approximately 1,800
immigrant mothers and children were being detained by Immigration and Customs Enforcement
(ICE) in Texas.10 The family detention centers in the cities of Dilley and Karnes are run by
private prison corporations, CoreCivic (formerly known as Corrections Corporation of America)
and GEO Group, respectively.

Note: The numbers provided by Texas HHSC are provided in a monthly report; however, the
numbers may change daily depending on reunification or release to family members.

ISSUES AND RECOMMENDATIONS

Examine the direct impact of family separation and detainment on children. Determine
how the state can provide or facilitate services to ensure a safe and quality environment for
children and families.

There is widespread consensus and concern from medical professionals regarding the negative
health effects of family separation and detainment on children. Various doctors and health
organizations have cited examples of difficulty adjusting to routine, behavioral issues, onset of
urinary incontinence, crying, self isolation, sleep troubles, and loss of appetite. The inherent
trauma on children from detention is recognized whether the child is separated from their family
or held in a family detention center.

The Texas Pediatrics Society (TPS) released a statement that “...children should not be subjected
to prolonged detention and every child should receive developmentally appropriate daily care,
medical care, and mental health care which is compassionate and responsive to their needs.”
After a recent tour of a family detention center, TPS determined that basic standards were not
being met.11 This leads to concern that childhood detention centers are experiencing the same
insufficient conditions. We agree with experts and advocates that it is extremely harmful for
children to be held in detention or jail-like settings for any period of time. The current
immigration policy is putting more children at risk of detention for longer than 20 days, in
violation of the Flores Agreement, and is jeopardizing the long-term well-being of the children.12

9
ORR Capacity Information as of June 2018
https://drive.google.com/file/d/0B8wyI1LqxMayZlh1dTRBMmhjblBkNmw5d1BlTW1uWW95T01n/view?usp=sha
ring
10
Texas Observer, “‘She Lives in Fear,’ Not in El Salvador, but in Texas Detention”
https://www.texasobserver.org/sexual-abuse-karnes-immigrant-detention/
11
Texas Pediatrics Society, ​Re: PROPOSED RULE, CHAPTER 748,
https://txpeds.org/sites/txpeds.org/files/documents/newsletters/tps-comments-on-dfps-detention-center-licensing.pdf
12
Vox, “Flores agreement: ​Trump’s executive order to end family separation might run afoul of a 1997 court
ruling,”
4
In order to minimize and mitigate the myriad of negative impacts that detainment and family
separation have on children, we make the following recommendations:

● It is critical that the state reject any policy, such as the licensing of family detention
centers, that may indefinitely prolong the detention of children. GEO, the private prison
company that operates the Karnes family detention center, stated that “presently, the
center operates as a short-term processing facility and this licensing process will allow
for longer lengths of stay.” 13
● All facilities operating in Texas must rectify the insufficient minimum standards for
contact in place. For example, federal facilities currently require two calls per week
between separated parents and children, with 10 minutes per call.14 Immigration and
childcare advocates have reported instances in which facility operators do not ensure this
contact occurs. We recommend, at a minimum, that federal and state agencies be held
accountable for this minimum standard being met. However, it is recommended that these
facilities strive to exceed federal minimum standards for contact and delivery of services.
This means more calls between parents and children, and allowing for and coordinating
face-to-face contact for families whenever feasible.
● For children held in facilities longer than a few days, the medical care standards must be
improved with consultation from pediatricians including mental and physical health
evaluations, as well as follow-up appointments. The state must collaborate with the
federal government to secure resources, even in pro-bono volunteer capacity. This would
include allowing licensed individuals to provide resources within facilities such as child
therapists, licensed pediatricians, etc.
● Require that all facilities operating in Texas conduct a trauma-informed care training for
all medical professionals and staff working in facilities detaining immigrant children and
families.

Evaluate what information the state collects on the immigrant child population being held
in facilities located in Texas. Establish whether additional data and accountability
measures are necessary to streamline delivery of services and reunification of families.

The influx of immigrant children being held in detention centers, and specifically, immigrant
children who were separated from their parents, is further straining a complex and confusing
immigration system. According to widespread reports and advocates who work on direct services
to this population, the current accountability system and process for reunification was not
prepared for the influx of children, and remains ill-prepared to take on the urgent task of
reuniting families. Multiple federal agencies and state agencies, including HHSC and DFPS, are
charged with aspects of ensuring the quality of care for the immigrant children and families.
However, there is often confusion and a lack of continuity in data collection, reporting, and

https://www.vox.com/2018/6/20/17484546/executive-order-family-separation-flores-settlement-agreement-immigrat
io
13
Donahue, David, ​GEO Group Fourth Quarter 2015 Earnings Conference Call
https://www.sec.gov/Archives/edgar/data/923796/000119312516473567/d46403dex992.htm
14
​https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-3#3.3.10
5
contract monitoring. In our efforts to ensure the state is transparent and that the safety and care of
children detained in Texas are prioritized, we make the following recommendations:

● Increase the number of site visits from HHSC, including unannounced visits, to certify
that standards are maintained. Furthermore, as these facilities are required to be licensed
by the state, allow visits from members of the Texas Legislature.
● Enhance the state’s reporting mechanisms and encourage increased data collection,
including the number of children housed in these facilities, their country of origin, their
port of entry, their average length of stay, and the amount of contact each child receives
with his/her parent or family.
● In order to be certain that reports and allegations of abuse and assault are investigated
fully and responded to, DFPS and HHSC must refine their allegation response processes,
and provide improved communication with the immigrant children and families located
in the facilities. A complicated process creates roadblocks for reporting of potential abuse
and neglect.
● Require child-facility operators or DFPS to maintain its responsibility for the welfare of a
child who was in their custody even in the case of a child running away from a facility. In
a system where multiple agencies are involved in the licensing of facilities and ensuring
the safety of immigrant children in the facilities, it has come to our attention that if a
child voluntarily leaves a facility it is unclear whether responsibility for the child is
terminated. Specifically, Southwest Key, the largest child-facility operator in the country,
released a statement in which they stated that they cannot require a child to remain in
their facility if the child does not want to. In the case of a child running away, a facility
operator is required to notify law enforcement, but no longer follows the whereabouts or
status of the child unless the child is returned to the facility. 15 It is our concern that
responsibility for the welfare of the child seems to cease if a child voluntarily leaves the
facility.

Analyze the current amount of unrepresented immigrants in court cases and determine a
requirement for the state to supply legal representation for all immigrants crossing the
border.

● State representatives must put pressure on ORR to enter into more contracts with local
legal resources organizations, such as RAICES, so that immigrants are granted legal
representation. State-licensed facilities often contract with legal agencies in the area, and
a requirement must be put into place to facilitate these contracts between immigration
facilities and local legal representation agencies within a certain number of days of the
facilities opening.
● Submit a legislative appropriations request to the Texas Legislature in order to
appropriate funds to the Texas Access to Justice Foundation. In immigration proceedings,

15
CNN, “Teenage Boy Reported Missing From Texas Facility that Cares for Migrants, Police Say”
https://www.cnn.com/2018/06/24/us/boy-missing-from-texas-facility-southwest-key/index.html

6
 children and adults have a right to an attorney “at no expense to the Government.”16
Thus, these immigrants often rely on securing pro-bono attorneys, or they risk having to
represent themselves in court. To prevent this from happening, the state must ensure that
appropriate funding is being given to pro-bono legal agencies in providing services to
immigrants.

Clarify requirements for reporting at the state level despite whether DFPS or HHSC
license the facilities.

● Apply continued pressure for state oversight in cases of abuse and neglect within
facilities. According to DFPS, they have the responsibility to investigate entities that
operate in the state, thus, the legislature must ensure that DFPS can and will investigate
all immigration facilities within Texas.
● In order to guarantee adequate standards for children and families in facilities, it is
necessary that all facilities operating in Texas meet or surpass the minimum standards set
in state statute. Currently, facilities on federal property are exempt from state regulations
based on HHSC’s interpretation of Chapter 42 of the Human Resources Code. This

​“​8 U.S. Code § 1362 - Right to Counsel.” ​LII / Legal Information Institute,​
16

www.law.cornell.edu/uscode/text/8/1362​.
7
 means that facilities located on U.S. Customs and Border Protection, military bases, and
other federal facilities do not fall under the purview of the state, making it difficult to
ensure the standard of living as well as quality and parity of child care.

Review the role the State of Texas has in reunifying children and families separated as a
result of the ‘zero-tolerance’ policy implemented by the Department of Justice. Identify
resources and the responsibility of involved agencies in expediting the unification of
families.

U.S. District Judge Dana Sabraw issued a deadline of July 10, 2018 for the Department of Justice
to reunite migrant parents with kids under 5 who were separated from them at the border. Judge
Sabraw gave the federal government until July 26, 2018 to reunite the remaining children with
their parents. Four days prior to the first deadline, federal attorneys requested an extension.
Approximately 100 toddlers are thought to be affected by this court order. 38 of those 100 tender
aged children may not be reunited with their parents - 19 parents have been deported while their
child was in custody, and 19 have unknown whereabouts. As of July 6, 2018, many parents state
that they have not been provided with any information concerning reunification plans,
conditions, or dates.17

It has been difficult to assess the situation due to limited data collected at the state and federal
levels. The Department of Health and Human Services has given a grand total of 11,800 children
currently in their custody, while as many as 3,000 of them were forcibly removed from their
parents.18

Though the process of reunification will mostly occur at the federal level under the Department
of Justice and the Department of Health and Human Services, there are actions that must be
taken at the state level to aid in bringing members of separated families back together. These
actions include:

● Require legal representation of separated parents. As part of the legislative appropriations

request for the Texas Access to Justice Foundation, parents separated from their children
must receive legal representation in order to aid in the reunification process.
● Develop clear guidelines at the state and federal level for children whose parents are
deported or reported missing, so as to increase the chances of reunification, and decrease
the child’s time spent in detention centers.
● Continue to monitor the reunification process so that every child who has been separated
from their parents is reunited in a timely and cost-effective manner.

17
The Texas Tribune, “​Some migrant children under 5 unlikely to be reunited with their parents by Tuesday
deadline”
​https://bit.ly/2zoeHrF
18
MSNBC, “Trump admin. pushes back on family reunification deadline”
https://www.msnbc.com/velshi-ruhle/watch/trump-admin-pushes-back-on-family-reunification-deadline-127307424
3977
8
● Require that the Legislative Budget Board conduct a cost analysis of the impact of the
federal policies of zero-tolerance and family separation on the state, as well as
specifically on DFPS and HHSC.