Report of the DHS Advisory Committeeon Family Residential CentersOctober 7, 2016

Report of the DHS Advisory Committeeon Family Residential CentersOctober 7, 2016Table of ContentsIntroduction .11.Decisions to Detain and Release .6A. Limit or Eliminate the Use of Expedited Removal and Reinstatement of Removal forFamilies .7B. Avoiding Detention During Credible and Reasonable Fear Processes .12C. Inconsistency in Criteria for Release of Families .16D. Unduly Onerous Conditions of Release .192.Reform of Detention and Alternatives-to-Detention (ATD) .26A. Population Management .261. Incorrect Assumptions about Civil Detainees .262. Insufficient Information and Analysis, Planning, and Preparedness.303. Outsourcing vs. Acquiring Internal Expertise .32B. Detention Management .331. Normalization .332. Building a Culture of Safety.36C. Accountability .391. Roles and Responsibilities of Government Actors.392. Roles and Responsibilities of Public and Private Sector Contractors .393. Transparency: Government’s Core Commitment to Good Governance .40Access to Counsel.423.A. Overarching Recommendations .43B. Meeting and Communicating with Counsel .471. Meeting with Counsel .492. Care of Children During Attorney-Client Meetings.503. Location of Attorney-Client Meetings .504. Ensuring Attorney Teams Can Function in their Role as Counsel.50C. Counsel’s Role in Decisions Critical to Detainees’ Safety and Right to Due Process .51D. Counsel’s Role in Decisions to Separate Children from Parents .52E. Meaningful Access to a Law Library.54F. Access to Information Specific to Crime and Trauma Victims .564.Education Services and Programs .59A. Early Childhood Education .611. Access to Child Care .612. Child Care and Pre-Kindergarten Programming .613. Program Quality .624. Pre-Kindergarten Preparation and School Readiness .635. Early Childhood Development .64B. K-12 School Location and Schedule.64

C. K-12 Curriculum and Instruction .651. Qualified Staff .662. Curriculum.663. Instruction .674. English Language Instruction .68D. Assessing and Communicating K-12 Student Progress .691. Grade-Level Placements.702. Feedback to Students and Parents about Progress.70E. Special Education Services .701. Eligibility .712. Provision of Services .72F. K-12 Student Orientation to Transition to U.S. Schools .73G. Trauma-Informed Education Practices .741. Social-Emotional Learning.742. Classroom Management Practices.753. Trauma-Informed Practices .75H. Educator Professional Development .761. Instruction .762. Performance Evaluation .773. Trauma.774. Prevention and Reporting .78I. K-12 School Performance .78J. Education Records .79K. Parent Education .801. Information about K-12 Schooling.802. Orientation to Transition Children to U.S. Schools .803. Parenting Support .814. English Language Instruction .815. Newcomer Education .825.Language Access .83A. Non-Spanish Speakers: Overarching Recommendation .85B. Disability Access .86C. Identification .88D. Orientation .91E. General Provision of Language Access Services.94F. Access to Fair Immigration Procedures: Law Library.97G. Access to Fair Immigration Procedures: Credible and Reasonable Fear Processes .991. Conversation with Potential or Retained Immigration Lawyers .1002. Asylum Orientations.1003. Asylum Officer Interviews .1004. Conversations with ICE Personnel, Including Deportation Officers and Lawyers .1015. Appearances Before an Immigration Judge. .101H. Grievances and Requests .1061. Grievances .1062. Non-grievance Requests .107I. Medical and Mental Health Care .108ii

Discipline .111Release .112Training .112Quality Monitoring and Improvement .1136.Medical, Mental Health and Trauma-Informed Care .115A. Medical Assessment and Care .1171. Essential Health Care Screenings .1182. Medical Screenings for Children .1203. Children’s Health Care .1214. Parents Accompanying Children Needing Hospital Care or Mental HealthResidential Treatment .1225. Communicable Screening for the Zika Virus .1236. Sexual Assault, Domestic Violence, and Human Trafficking Screenings .1237. Prison Rape Elimination Act Implementation.1268. Communication of Medical Screening and Test Results .1279. Dental Health .12810. Pharmaceutical Management .12911. Care of Pregnant Women .12912. Emergency Medical Services and Procedures .13013. Accreditation and Compliance with Joint Commission on the Accreditation ofHealth Care Organizations (JCAHO) Standards.131B. Mental Health Assessment and Care .1321. Mental Health Screening .1322. Mental Health Referrals and Response .1343. Psychiatric Management and Pharmacotherapy.1374. Credentials of Mental Health Professionals .1385. Psychotherapies .1406. Support/Therapeutic Groups .141C. Trauma-Informed Care .1421. Implementing a SAMHSA Trauma-Informed Approach .1432. Trauma-Informed Approach: Elimination of Nighttime Bed Checks .1453. Trauma-informed Approach: Supports for Parenting .146D. Release Preparation, Case Management, Continued Care and Access to Mental HealthProfessionals .147E. Medical, Dental, and Mental Health Records .1497.Inspections, Complaints, and Oversight.152J.K.L.M.Appendix A: Members of the DHS Advisory Committee on Family ResidentialCenters .155Appendix B: Advisory Committee on Family Residential Centers (ACFRC)Committee Tasking .156Appendix C: A Brief History of INS/ICE Family Residential Facilities.157Appendix D: Examples of Federal Resources, Tools, and On-Line Trainings onTrauma-Informed Care.159Appendix E: Acronyms Used in the Report .165iii

INTRODUCTIONPrompted by controversy over DHS’s policies and practices relating to family detention, SecretaryJeh Johnson announced the establishment of the DHS Advisory Committee on Family ResidentialCenters (ACFRC or the Committee) on June 24, 2015. 1 Secretary Johnson explained that:ICE Director Saldaña and I understand the sensitive and unique nature of detainingfamilies, and we are committed to continually evaluating it. We have concluded thatwe must make substantial changes to our detention practices when it comes tofamilies.Among the responses he announced was the formation of this Committee, “to advise DirectorSaldaña and me concerning family residential centers.” The Committee’s charter confirms a broadscope for our advice-giving:The Committee provides advice and recommendations to the Secretary of theDepartment of Homeland Security (DHS) through the Assistant Secretary for U.S.Immigration and Customs Enforcement (ICE) on matters concerning ICE’s familyresidential centers as it relates to primary education, immigration law, physical andmental health, trauma-informed services, family and youth services, detentionmanagement, and detention reform. 2And similarly, our March 2016 tasking directed the ACFRC to:Develop recommendations for best practices at family residential centers that willbuild on ICE’s existing efforts in the areas of educational services, languageservices, intake and out-processing procedures, medical staffing, expansion ofavailable resources and specialized care, and access to Legal Counsel . . . Detailmechanisms to achieve recommended efficiencies in the following focus areas:1) educational services . . . 2) language services . . . 3) detention management . . .4) medical treatment . . . 5) access to counsel.The Committee’s members are listed at this Report’s Appendix A; the Committee’s tasking isattached to this Report as Appendix B. 3Prior to presenting this report to ICE and DHS, the Committee met twice, once in Washington,D.C. in December 2015, and once in Texas in March 2016, in order to participate in guided sitevisits of two of the Family Residential Centers (FRCs), the South Texas Family Residential Center(Dilley) and the Karnes County Residential Center (Karnes). A much smaller group visited thethird FRC, the Berks Family Residential Center (Berks), in June 2016. In order to fulfill ourtasking, the Committee submitted numerous information requests to ICE, which supplied some ofthe requested documents and other information. Unfortunately, ICE deemed a number of our1Jeh C. Johnson, Secretary of Homeland Security, Statement by Secretary Jeh C. Johnson On Family ResidentialCenters (June 24, 2015), . Immigration and Customs Enforcement Advisory Committee on Family Residential Centers (July 24, ments/Document/2015/acfrcCharter.pdf.3See Advisory Committee on Family Residential Centers (ACFRC), Committee Tasking,

requests beyond the Committee’s scope, which it considered more limited than our charter or ourtasking. We have therefore supplemented the information ICE provided with information fromcredible non-governmental organizations, federal court filings, and the ACFRC’s own individualmembers’ expertise. This report covers all the areas in our tasking, and notes the basis of ourinformation and recommendations.The detention of migrant children and families by the U.S. government has been controversialsince its inception. Child and family detention has been the subject of a number of federal lawsuits– most notably, the Flores litigation (currently captioned Flores v. Lynch), filed in 1985 and still inactive litigation. 4 Since its inception, many reports by government agencies (including theGovernment Accountability Office (GAO) and various subunits of DHS), the United Nations HighCommissioner for Refugees (UNHCR), the American Bar Association (ABA), and advocacyorganizations have made similar and negative findings. In this report, the ACFRC adds our voiceto those prior critiques. We offer numerous recommendations to improve detention managementand conditions. But these should be understood in light of our basic conclusion and firstrecommendation, which is repeated and discussed in depth in Part I, below:Recommendation 1-1: DHS’s immigration enforcement practices should operationalize thepresumption that detention is generally neither appropriate nor necessary for families – andthat detention or the separation of families for purposes of immigration enforcement ormanagement are never in the best interest of children. DHS should discontinue the generaluse of family detention, reserving it for rare cases when necessary following anindividualized assessment of the need to detain because of danger or flight risk that cannotbe mitigated by conditions of release. If such an assessment determines that continuedcustody is absolutely necessary, families should be detained for the shortest amount of timeand in the least restrictive setting possible; all detention facilities should be licensed, nonsecure and family-friendly. If necessary to mitigate individualized flight risk or danger, everyeffort should be made to place families in community-based case-management programs thatoffer medical, mental health, legal, social, and other services and supports, so that familiesmay live together within a community. This recommendation is consistent with existing report proceeds as follows: We complete this Introduction with some background on familydetention. We then proceed in seven parts, addressing: to Detain and ReleaseReform of Detention and Alternatives-to-Detention (ATD)Access to CounselEducation Services and ProgramsLanguage AccessMedical, Mental Health, and Trauma-Informed Care4For a summary of the litigation, see CIVIL RIGHTS LITIGATION CLEARINGHOUSE, Case Profile Flores v. Reno, 9493. See especially Stipulated Settlement Agreement, Flores v. Reno,No. 85-cv-4544-RJK(Px) (C.D. Cal. Jan.17, 1997), 0020005.pdf.2

7. Inspections, Complaints, and OversightBackground:In 2009, at the beginning of the Obama Administration, ICE funded two FRCs – the Berks CountyFamily Residential Center, in Leesport, PA, and the T. Don Hutto Residential Center in Taylor,TX (Hutto). Total capacity was an estimated 384 beds. Within nine months, ICE had stoppeddetaining families at Hutto, reducing its family detention capacity by about 300 beds. Since then,ICE has opened and closed one temporary FRC and then opened two new FRCs, over timeincreasing its total capacity to detain families by over 3,200 beds. (See Appendix B: A BriefHistory of INS/ICE Family Residential Facilities.)Today, midway through the Administration’s eighth and final year, ICE maintains three FRCs,each operated by a different contractor, although of course ICE is responsible for all three. As isordinary practice, we refer to the facilities, which are described below, 5 by their location ratherthan their formal name/abbreviation. The contracting organizations have hundreds of staff, andICE also has employees who work at the facilities, both to monitor conditions and to carry outimmigration processing. Their total operating capacity is 3,326 beds: Karnes County Residential Center. This facility, in Karnes City, Texas, is operated by theGEO Group – a private prison company. It has been a family detention center since August2014. As of August 2016, it held 595 women and children, which is approximately itsoperating capacity. As of June 2016, ICE reported 49 ICE staff at Karnes.South Texas Family Residential Center. This facility, in Dilley, Texas, is operated byCorrections Corporation of America; it opened in December 2014. It has a 2,400 bedcapacity, but as of August 2016 held 1,374 women and children; in June 2015, ICEreported 41 ICE staff at Dilley.Berks Family Residential Center. This facility, in Berks County, Pennsylvania, is ownedand operated by Berks County. It originally opened in March 2001. In February 2013 thefacility was moved to a new building, also operated by the county, reconfigured withoriginal capacity for 96 but potential capacity for up to 200 children and their parents. Itcurrently has a maximum capacity of 96, but as of August 2016, held 75 people. Fathershave in the past been detained at Berks, but it is our understanding that ICE currently isusing the facility to detain only mothers and their children. We do not know how many ICEstaff work at Berks.ICE was unwilling to share with us information on the length of detainees’ stays, but accordingto the federal government’s public filings in the Flores litigation, looking at families initiallybooked into ICE’s FRCs starting October 23, 2015 (that is, excluding any families taken intocustody prior to that date), the statistics as of May 16, 2016 were: Total detainees over the 7-month period: 18,706.5Descriptions are largely based on Decl. of Jon Gurule at ¶ 5, Flores v. Holder, No. 2:85-cv-04544 (C.D. Cal. June 3,2016), 0.pdf.3

Average length of stay: 17.7 days for those still detained as of that date; 11.8 days for thoseno longer in detention.Over the entire population (both detained as of May 2016 and previously released):a. 58% were released in 10 days or less.b. 96% were released in 20 days or less.c. 99% were released in 30 days or less. 6The same filing also included snapshot-type information. Looking at the population detained onMay 16, 2016: There were a total of 1,734 detainees.44% at that point in time had so far been detained for 10 days or less.88% at that point in time had been detained for 20 days or less.94% at that point in time had been detained for 30 days or less. 7We have been told that after U.S. District Judge Dolly Gee entered an order in Flores in July2015 8 requiring speedier release of most children from family detention, the Texas facilities havemostly had families pass through in less than three weeks; families housed at Berks have facedvery substantially longer detention periods with some families remaining in detention for over ayear.Each FRC is covered by ICE’s Family Residential Standards, which are publically available esidential. In addition, materials provided by ICEto the ACFRC Subcommittees confirm that when the 2011 Performance Based National DetentionStandards (PBNDS 2011) provide a higher level of care for detainees, FRCs are required to adhereto that higher standard. With respect to medical and mental health care, FRCs are also required tocomply with ICE Health Care Service Corps (IHSC) policies and procedures, but these were notmade available to the ACFRC.Each facility has adopted its own facility-specific policies, which are supposed to implement andexpand upon the Standards. These are not publically available but we have obtained a few of themfrom ICE. In addition, each FRC provides its detainees with a resident handbook, whichsummarizes the rules, policies, and procedures that affect them; we were provided the handbooksin English, but they are also available in Spanish. 96Id. at 12–13.Id. at 13.8Flores v. Johnson, 2:85-cv-04544 (C.D. Cal. July 24, 2015), 02-0017.pdf. In her July 2015 Flores decision, Judge Gee found that the DHS’s family detention policies were outof compliance with the stipulated settlement in the case, which regulated the treatment and conditions of children inINS custody. The settlement is available at 002-0005.pdf.9Each of the existing FRC resident handbooks is publically available, because they were filed in the Flores litigation.The Karnes handbook, in English and Spanish, is available as exhibits 1 and 2 to the Decl. of Juanita Hester, Flores v.Holder, No. 2:85-cv-04544 (C.D. Cal. June 3, 2016), 9.pdf.The Dilley handbook, in English and Spanish, is available as exhibits 1 and 2 to the Decl. of Valentin de la Garza,Flores v. Holder, No. 2:85-cv-04544 (C.D. Cal. June 3, 2016), .pdf. The Berks handbook is available, in English only, as exhibit 2 to the Decl. of Joshua G. Reid, Flores v.74

Holder, No. 2:85-cv-04544 (C.D. Cal. June 3, 2016), 0020030.pdf.5

1.DECISIONS TO DETAIN AND RELEASEIn the view of the ACFRC, it is well within our broad mandate and tasking, quoted above, toevaluate DHS’s policies relating to decisions to detain, the length of detention, decisions to release,and conditions of release. Operating on this premise, and beginning in December 2015 andcontinuing to the present, members of the ACFRC and its Subcommittees requested relevantinformation regarding detention and release policies. DHS was unresponsive to these requests; ICEultimately stated in a July 2016 exchange with the ACFRC that issues concerning decisions todetain, length of detention, conditions of release, and related questions are “outside the scope” ofour mandate to develop best practices applicable to FRCs. This conclusion contradicts theCommittee’s charter and appointment documents.In the absence of requested information from DHS, the Committee has consulted a wide range ofother credible sources, including, for example, the United States Commission on InternationalReligious Freedom, the American Bar Association, reports by well-respected non-governmentalorganizations, and public statements made by Secretary Johnson.Each recommendation in this Part is preceded by a brief overview of the controlling law andpolicies relevant to detention and release, and a summary of current practice. Therecommendations are intended to improve current practice consistent with extant U.S. law andpolicy.First and most importantly, our overarching recommendation is for DHS simply avoid detainingfamilies. We recommend that DHS not place asylum seeker families in expedited removal orreinstatement of removal, and instead to return to its prior practice of placing these families inregular removal proceedings via a Notice to Appear (NTA) and releasing them. with the use ofappropriate follow up support or compliance requirements as alternatives to detention whereneeded to address public safety or flight risk concerns.Recommendation 1-1: DHS’s immigration enforcement practices should operationalize thepresumption that detention is generally neither appropriate nor necessary for families – andthat detention or the separation of fam

Family Residential Center, in Leesport, PA, and the T. Don Hutto Residential Center in Taylor, TX (Hutto). Total capacity was an estimated 384 beds. Within nine months, ICE had stopped detaining families at Hutto, reducing its