This episode of CMSOnAir is the third in a series featuring academics, policymakers, and advocates who have written for the Center for Migration Studies’ (CMS) Journal on Migration and Human Security (JMHS).
In this interview, Dora Schriro speaks with Michele Pistone and Jack Hoeffner about family residential facilities and her 2017 paper, “Weeping in the Playtime of Others: The Obama Administration’s Failed Reform of ICE Family Detention Practices.” During the Obama administration, Schriro served as senior advisor to US Department of Homeland Security (DHS) Secretary Janet Napolitano and then as US Immigration and Customs Enforcement’s (ICE) first director of the Office of Detention Policy and Planning. She later served as a subject matter expert on the DHS Advisory Committee on Family Residential Facility formed by Secretary Jeh Johnson.
Schriro shares her insights on working to reform immigrant detention practices, the difference between criminal and civil detention, and the impact of family detention on parents. Schriro recommends a case management approach to the reception of families and suggests US Citizenship and Immigration Services (USCIS) as the first point of contact.
The United States has long struggled with the practice of detaining immigrant families and over time, most reform efforts have flagged, if not failed. This paper examines the impact of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) through an exploration of the family residential center for persons in immigration custody. The paper provides an inside look at how policymakers, at various points in the Obama administration, sought to roll back the administration’s most infirm practices and the fate of those efforts. It begins with a brief history of family detention in the United States, continues with a summary of the reforms undertaken both early and late in the Obama administration, and examines the significant challenges the administration faced and the less progressive positions it adopted during its first and second terms. The paper concludes with a discussion of reasons for the rapid reversal of the Obama administration’s previous reforms and provides recommendations to achieve a civil, civil system of immigration enforcement for families and all others, which means nothing less than the transformation of the immigrant detention system from a criminal to a civil paradigm. The need for such a transformation is all the more urgent in light of executive actions taken in the early days of the Trump administration. ...
Emma Winters: Welcome to CMSOnAir, the podcast on migration and refugee issues, brought to you by the Center for Migration Studies of New York (CMS). I’m Emma Winters, CMS’s Communications Manager. In just a moment, you’ll hear a conversation between Michele Pistone, Jack Hoeffner, and Dora Schriro. Michele and Jack, nonresident fellows for CMS, ask Dr. Schriro about her paper “Weeping in the Playtime of Others: The Obama Administration’s Failed Reform of ICE Family Detention Practices,” which was published in CMS’s Journal on Migration and Human Security in 2017.
At the beginning of President Obama’s first term, Dora Schriro served as senior advisor to US Department of Homeland Security (DHS) Secretary Janet Napolitano and then as US Immigration and Customs Enforcement’s (ICE) first director of the Office of Detention Policy and Planning. In that capacity she authored a comprehensive report on the immigration detention system. During the latter part of the Obama administration’s second term, Secretary Jeh Johnson selected Schriro as a subject matter expert in detention to serve as a member of the new DHS Advisory Committee on Family Residential Facility. Schriro has also headed two state prison systems (Arizona and Missouri) and two municipal prison systems (New York City and St. Louis). She also served as a commissioner on both the American Bar Association’s Commission on Immigration and the Women’s Refugee Commission.
In this episode of CMSOnAir, she shares her insights about the difference between criminal and civil detention, the history of immigrant detention, and her reflections on visiting Dilley and Karnes — two family detention centers in Texas. Schriro recommends a case management approach to the reception of families and suggests US Citizenship and Immigration Services (USCIS) as the first point of contact for families. Here’s the conversation.
John (Jack) Hoeffner: I’d like to begin by reading the poem that introduces the article.
Do ye hear the children weeping, O my brothers,
Ere the sorrow comes with years ?
They are leaning their young heads against their mothers, —
And that cannot stop their tears.
The young lambs are bleating in the meadows ;
The young birds are chirping in the nest ;
The young fawns are playing with the shadows ;
The young flowers are blowing toward the west—
But the young, young children, O my brothers,
They are weeping bitterly!
They are weeping in the playtime of the others,
In the country of the free.
That is how the article is introduced. “Weeping in the playtime of the others” is in the title, and it also happens to be the last words of the article.
Dora Schriro: Oh gosh, I’m going to get emotional. It speaks to the sadness that I still experience every time I think about each of my trips to the family residential facilities. For all the happy talk on the ICE website about these being kinder, gentler places, there is nothing gentle about being in custody at any age and certainly not for children. Sometimes I don’t know which is more difficult: the unaccompanied minor with no comfort from a parent or the child who takes all their cues from the parent and sees them trembling. They’re frightened all the time.
One of the things that struck me most about these facilities is how not normalized they are. The parents never get to be parents because the detention officer is always the boss. If kids are being kids, if they’re crying, having one of their days or just running around like silly little people that they are (less so in those circumstances), the parents are always so worried about their children coming to the attention [of the detention officers]. Nothing is normalized about that setting.
One of the things that strikes me so much – having been a jailer as many years as I’ve been and having run two state correctional systems and two city jail systems and having also been a warden – is: You never get to make choices in a facility. The difference between my experience with the criminal justice population versus those who are civilly detained is that ICE detainees are by and large fully functioning individuals. They are parts of intact families. They had homes. They maybe operated farms or had other businesses. They were engaged in their house of worship. When you take people like that and you put them in a setting where everything is done to them and for them, it is such a devastating experience to have lost all your autonomy and then to lose the ability to parent. Being responsible for your family, taking care of your family is one of the ultimate forms of autonomy. When I hear the poem all of that comes to the forefront for me.
John (Jack) Hoeffner: It’s unsettling, and it works as unsettling because this is something people should be unsettled about. No one should be comfortable knowing what the situation is. It’s very effective. The article, after its introduction, starts with a general history of detention of families and minors. Then, it zeros in on the Obama years. Finally, it focuses on your own experiences of what you did during these years, particularly your experience as the Special Adviser to the DHS Secretary and on the Advisory Committee on family residential centers. It’s all great, a very worthy read, but I would like to focus on a few points that you make that are really important for understanding the problem and what the solution might be. You just alluded to the fact that the people in the ICE detention centers are regular people, going about their work. Could you focus on the legal differences between the detention of immigrants and criminal detention?
Dora Schriro: It’s not well understood, quite frankly, even within government and within ICE, in particular. The case law says that those who are held in civil detention are not there for criminal purposes. It sounds kind of obvious and a little redundant when you say it that way, but you need to because ICE, as a matter of law, cannot and does not take anyone into its custody that has a criminal case pending or is still serving time. The only time that they may take someone with a criminal history is after the sentence, if there was one, has concluded. There really is a very bright line [between the detention of immigrants and criminal detention] – one that most people don’t know, so they don’t see it.
Jack Hoeffner: Another matter that’s in your article that I think also isn’t widely recognized… is the importance of culture in an organization. ICE is an enforcement culture. Many years ago, Michelle and I wrote an article on expedited removal with the INS [Immigration and Naturalization Services] and how that really mattered as to how the INS interpreted rules, applied rules, and implemented systems. You couldn’t come up with a solution to a problem unless you understood the culture going in. This is something that is mentioned in the article several times. ICE is an enforcement culture. Can you speak to, when you do understand what the culture is, how do you shape the solution to a problem?
Dora Schriro: You’re right. ICE is made up of enforcement agents. It’s like [how for] the carpenter, everything is a hammer and a nail. With ICE, when they’re talking about enforcement, they’re not even necessarily thinking about the continuum. Along the continuum, you have two outcomes: you either have relief or removal. That’s an oversimplification, but they’re really thinking about removal. That’s their preferred outcome because they have some of their own conclusions about who should be in and who should go.
The whole idea of detention is a no-brainer from their perspective because you want those people where you can find them at the ready. At that point, should it ever come, that the judge says this person will be removed or that this individual – for a variety of reasons which we can touch on – decides, “I’m going to withdraw my petition and I’m going to ask for expedited removal,” they want to be able to get that person right then and move them along. I believe that’s also why, in those instances when an individual is put on community supervision, they’re always loaded up to the max with different kinds of monitoring and supervision strategies. It becomes a virtual detention facility, through electronic monitoring and all sorts of other things.
I’ve been giving a lot of thought to this lately, and it’s fun going back and reading the article to see how it was already percolating just a couple of years ago. I’m starting to wonder if for the whole intake process maybe USCIS might be a better resource within the organization (DHS) for doing that initial assessment. My thought is once you’re in, it’s so hard to get out. Whatever we could do to frontload for the first authority you encounter – if it was perhaps USCIS and they had a different protocol – we might see more people released to the street immediately and perhaps with less of the accouterments for which ICE is known.
I’m also concerned about the risk assessment instrument. In my report, the 2009 report, I made pretty regular references to how these people are viewed. Again, it’s that enforcement lens. We hear these characterizations all the time about detainees being “the worst of the worst.” We’ve got so many of these worst of the worst. We just need more detention space and more detention space. Then, abracadabra, we have something as terrible as the pandemic and lots of people being released. The world is not a more dangerous place for having all those people in the community. The risk assessment has really been messed with – a highly technical term. Regardless of the score that you get, there’s now only one recommendation and that is detain.
I think that the whole detention/alternative detention really needs to get pulled out of ERO (Enforcement and Removal Operations). Maybe it’s some other freestanding thing within DHS. What we saw with the children several years ago and more recently is that the same things are broken in different places. If you’re going to fix it, why not just fix it? There’s this old premise from INS days – and it probably predates that – about up to 72 hours. Seventy-two hours is too long to keep anyone on a bench without a shower, with a couple of baloney sandwiches every day. That whole thing is its own discipline, and it’s the antithesis of enforcement. It needs to come out, and I’ll do it.
John (Jack) Hoeffner: Well as long as the detention responsibilities remain with ICE, I’m wondering, you do mention in the article that all the branches of government play a role here. I’m wondering when we have a situation where a particular aspect of a job seems to be at odds with the larger bureaucratic culture, is that a situation where the other branches of the government should be particularly keen to become involved? Particularly, I’m thinking in terms of Congress and oversight.
Dora Schriro: Day one of my first course when I was doing my doctorate, I’ll never forget it. My professor said, “You know that great big fancy thing in Latin or Greek that’s carved over the door? You know that motto? Forget about it! If you really want to know what an organization is about, look at the budget.”
I say to the appropriation chairs: Appropriations much more than any of the other committees [can] achieve compliance. Having said that, I still know that it’s not easy. Congress has provided a lot of leadership. Years ago they attached to the appropriation bill that if any detention facility didn’t meet its minimum standards two or more times, then ICE must punch their ticket and cancel the contract. I don’t know if that has happened but once or twice. In all that time, there was push and pull within the organization. There was increased pressure by field office directors when inspections were occurring to change the scores. That was the work around. Ever vigilant is the watchword to all the three branches. It’s not just to watch but to be ever vigilant about it.
Michele Pistone: I wanted to bring this up to date with everything that’s happening today at the Southern border. The Biden administration is experiencing a lot of decision moments to figure out how to address the recent increase in unaccompanied children coming to the Southern border.
Dora Schriro: It’s an all-hands-on-deck time, that’s for sure. I’m going to divert for a moment, but it’s to make this point. There’s this emphasis on deterrence. It’s something that the Obama administration succumbed to. I talk about it in the paper. It’s one of those things that we fall back on, over and over again, in progressive and conservative and any other administration.
I’m not sure if deterrence ever works, and if it deterred, then how do you know that they were coming anyhow? With everything that’s been happening in the Northern Triangle and continues to happen, the people who are coming, are coming because they really believe that they have no choice but to stay and die. I don’t know a mom or a dad who wouldn’t do the unthinkable, even send their child off without them, if they thought that was the only way that their child might have a chance of surviving. And then, if they could meet up with family, they might actually thrive as well. Part of my advice is: Let us not default or fall back on deterrence. It does not work, and it doesn’t speak to our better self. That means that we need to continue to receive these children as they approach the border.
Michele Pistone: Some of the students in my VIISTA (Villanova Interdisciplinary Immigration Studies Training for Advocates) program are volunteering at the border right now. Among them are retirees and people seeking encore careers, and there are opportunities. For our listeners, it’s important to know that there are opportunities to help today. Vecina is an organization that is really encouraging remote help. From wherever you are, you can provide remote assistance. Even administrative assistance is helpful, interpretation, and things like that.
Dora Schriro: Right now, you’ve got these bigger than imaginable pop-up facilities. I thought that Dilley and Karnes were ridiculously large for baby-sized people, and these places are even bigger. If there’s comfort, it’s that they are going to be there for 72 hours or less. [It’s a good] idea – having the case workers there, looking for more ways, kinder, gentler ways, to enable the kids to be active participants in finding their family or friends that are here in the States. Then, they can be moved quickly. [It needs to be] more of a caseworker or social worker approach – as they’re doing now. They’re doing all the right things, and they’re doing them as quickly as they can.
Like so many others, I’m really concerned about parents that are coming to the border or maybe were turned back or removed and are now sending their children as unaccompanied minors to try to make it on their own. It’s a tough thing. Personally, I would prefer to keep the family intact. That means bringing them in, and then having a parallel system that could make those evidence-based rapid assessments – evidence-based, not playing with the algorithm – and then moving them as quickly as we can.
There is a real role for not-for-profits in all of this as well. All of those organizations – national, regional or along the border – should mobilize as much as possible and ask for volunteers. For people who have retired from INS or ICE, good folks like yourself, like myself, others, to go down there and volunteer would be really worthwhile – much as the legal field is recruiting as many attorneys as it can to assist with petitions and applications.
Michele Pistone: One other thing I wanted to ask you to clarify is earlier you mentioned the Northern Triangle countries – El Salvador, Guatemala, and Honduras – and you said that it’s dangerous for people and that there are a lot of people who might lose their lives if they remained in their home country. Could you give the listeners a little more context for what the challenges are?
Dora Schriro: Sometimes on talk TV it’s: “They’re coming for better jobs. They want to make more money.” Well, there’s nothing wrong with that, but that really doesn’t get to the heart of the matter. For everyone I’ve met, it’s not about having a better life. It’s about having a life – preserving life.
What I saw in 2014-2015 (and I see signs of now) is that the recruitment activities from some of these international gangs are exceptionally persuasive. It’s do or die. These gangs recruit girls as well as boys. It’s not just boys and young men who are at risk but all children and adolescents. The girls, in particular, have their own kind of risk. Some of their recruitment in the gangs is for servicing the boys. They’re there to provide them with sexual opportunities.
When you’re a mom or a dad, to see your pre-adolescent, your adolescent kids, and other relatives being recruited for any of those purposes, all of them dangerous – that’s really why people are coming. The threat for non-compliance is death and for escaping is also death – the old axiom about blood in, blood out. Many of those families are coming because it’s not just a threat, but one or more of their family members have already been killed or otherwise seriously injured and survived perhaps with the loss of a limb or the loss of the use of a limb. That’s what we’re talking about. This is not an argument that’s a cost-benefit analysis. This is a life-or-death decision.
Michele Pistone: You’ve described several of my clients. Just from your description, in my own head, I could imagine some of the clients I’ve worked with who’ve fled those countries. Now, they have productive lives after they’ve gotten asylum in the United States. They’ve been very successful here.
Dora Schriro: On the news, sometimes, they talk about either droughts or horrific flooding, tornadoes, hurricanes, and all sorts of natural disasters. That’s certainly part of it – and indeed the changing of the climate is going to see more waves of people seeking to live in a place where they can actually live and work the land. I believe that the real driver in 2014-2015 and today is personal safety, family safety.
Emma Winters: If you want to learn more about the Center for Migration Studies’ Journal on Migration and Human Security, please visit cmsny.org/JMHS. CMSOnAir’s theme music is provided by The Music Case. For more podcasts like this one, you can follow CMSOnAir on Spotify, Apple Podcasts, SoundCloud, or wherever you get your podcasts. To find a full transcript of this episode, or get more information on CMS’s research, publications, and events, visit us at cmsny.org.
This transcript has been slightly edited for clarity.
This paper reviews the response of the US government to the growth in migration from Central America’s Northern Triangle states from 2011 to 2016. It also critiques the extreme border policies of the Trump administration, while recognizing that the failure of previous administrations to enact strategic, long-term changes in the US immigration system laid the groundwork for these policies. Finally, it reviews some of the lessons learned during the Obama administration on the need for a resilient and reformed immigration system....
CMS and the Scalabrini International Migration Network (SIMN), a not-for-profit organization focusing on protection and development programs for migrants, report back from a fact-finding mission in El Salvador, Guatemala, and Mexico where the delegation toured migrant detention and return facilities, met with public officials and nongovernmental organizations (NGOs), and assessed how the US-Mexico policies of deterrence and interdiction have impacted the region and particularly those seeking to flee the record levels of violence in the Northern Triangle states of Central America....
In this interview, Jennifer Podkul, the Vice President of Policy and Advocacy at Kids in Need of Defense (KIND), describes the United States’ recent history with respect to the humanitarian protection of children and offers an overview of the current situation at the US-Mexico border for child migrants. An international human rights lawyer and expert on child migration to the United States, Podkul recently testified before the House Committee on Homeland Security on the best practices for the care and protection of child migrants.
Podkul’s 2016 JMHS paper, “The Impact of Externalization of the Migration Controls on the Rights of Asylum Seekers and Other Migrants,” examined how the United States, Australia, and the European Union sought to prevent migrants and refugees from arriving at their borders to seek protection. One example presented in the paper is the Obama administration’s response to the increase in unaccompanied children in 2014. Podkul describes what has changed since the Obama administration with respect to the deterrence of child migrants and offers policy recommendations for the care and reception of child migrants.