Weeping in the Playtime of Others: The Obama Administration's Failed Reform of ICE Family Detention Practices

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 evolution of the family residential center (FRC) for families in immigration custody, established prior to the 9/11 terrorist attack by the Immigration and Naturalization Service (INS), and expanded by Immigration and Customs Enforcement (ICE) in its aftermath. The paper provides an inside look at how policymakers, at various points in the Obama administration, sought to roll back its 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 it faced and the less progressive positions it adopted during its first and second terms in office.

The paper concludes with a discussion of reasons for the rapid reversal of its 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, consistent with the population and legal authorities.[1] The need for such an effort is all the more urgent in light of executive actions taken in the early days of the Trump administration and their initial outcomes. Among those thwarting admissions are  orders to Customs and Border Protection (CBP) and US Citizenship and Immigration Services (USCIS) to seal the US borders, shun refugees fleeing from war-torn regions until “extreme vetting” measures are put into place, and reassess others who have already been issued visas.  Additional orders issued to ICE expanded and expedited the removal of persons whose conduct could result in charges or convictions as well as those with criminal charges or convictions, resulting in a 38 percent increase in arrests by ICE agents within the first 100 days of the Trump administration (Dickerson 2017b; Duara 2017).

DOWNLOAD

* 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 (ODPP) at the beginning of President Obama’s first term. During the latter part of the administration’s second term, Secretary Jeh Johnson formed the DHS Advisory Committee on Family Residential Facility (ACFRC) and selected her as a subject matter expert in detention to serve as a member. Schriro has also served as a commissioner on both the American Bar Association’s Commission on Immigration and the Women’s Refugee Commission

[1] For further discussion of the concept of a civil, civil system of immigration enforcement, see Schriro (2009).