Jurisprudence

Immigrant Detention Conditions Were Atrocious Under Obama. Here’s Why They’re So Much Worse Under Trump.

Migrant children wait to receive food at the Casa del Refugiado.
Migrant children wait to receive food at the Casa del Refugiado in El Paso, Texas, on April 24.
Paul Ratje/AFP/Getty Images

The past week has been filled with news that the Department of Homeland Security is holding hundreds of children in squalid conditions in Customs and Border Protection detention facilities on the border. On Tuesday, it was reported that 100 children had been returned to the Clint, Texas, facility that independent monitors had described as having “unconscionable” conditions following an aborted transfer from the location. On Monday, it was reported that CBP was refusing donations of soap, toothpaste, and other hygiene products that have been reported to be absent from these facilities, while a Republican congressman said that if the children detained in these facilities without their parents don’t like the conditions, “there’s not a lock on the door” and they’re “free to leave at any time.” This followed an argument last week from administration lawyers that children don’t need to be provided beds, toothbrushes, or soap while detained in these facilities, despite a consent decree in which the government had promised to keep children in “safe and sanitary” conditions. Ultimately, this week has seen the Trump administration receive the most widespread pushback against its immigration enforcement policies since its misbegotten family separation policy last summer.

But Trump isn’t the first president to oversee inhumane immigration and detention policies. In fact, many of the current immigration enforcement actions that are receiving criticism under Trump were in place during the Obama administration. Trump’s policy changes and focus on deporting as many people as possible, however, has created all-out chaos in a system that was already pushed to the brink. Here are some of the key differences between the situation under the Obama administration and the current situation under President Donald Trump.

Immigration Detention

The Marshall Project found that every president for the past 25 years has overseen growth in immigration detention, with the average daily population hovering between 30,000 and 40,000 during Obama’s presidency. In fiscal year 2018, under Trump, the average daily population was 45,890, and it has continued to rise this year.

According to numbers from Immigration and Customs Enforcement, there are about 53,515 people currently detained in ICE facilities waiting for a disposition in their immigration cases. So far in fiscal year 2019, there have been more than 274,798 initial book-ins to ICE detention centers. This number does not count those who were detained by CBP in processing centers, which are the facilities getting the bulk of the attention right now.

CBP Facilities

CBP facilities have long faced criticism for their abysmal conditions. A lawsuit filed in 2015 during Obama’s presidency challenged the situation at these “hieleras,” or “iceboxes,” alleging “appalling conditions” including people held in “freezing, overcrowded, and filthy cells for extended periods of time, no access to beds, soap, showers, adequate meals and water, medical care, and lawyers in violation of constitutional standards and Border Patrol’s own policies.”

Many of the photos showing the squalid conditions inside the detention centers were obtained during this lawsuit, which is still ongoing. It is hard to say whether the terrible conditions in CBP facilities currently are “worse” than they were under Obama, but what seems to be clear is that a focus on detaining people—including children—is forcing more people to spend longer amounts of time inside CBP facilities, which would likely cause a deterioration of the already-appalling conditions.

According to former DHS Secretary Kirstjen Nielsen, it had been more than a decade since a child had died in CBP custody when Jakelin Caal Maquin died in December, which means that there were no deaths of children in CBP custody under Obama. Since Jakelin’s death late last year, at least four other children have died in CBP custody.

Criminal Charges for Illegal Entry or Reentry

Although being in the United States without documents is not a criminal offense, the act of entering the U.S. without proper authorization or entering outside of a designated port of entry can carry criminal penalties.

Prosecutions for illegal entry and reentry were relatively rare (under 25,000 per year) until the advent of a mass-trial program known as Operation Streamline during the George W. Bush administration in 2005. Operation Streamline has been roundly criticized from its inception for violating due process rights. During the last year of Bush’s presidency in 2008, and throughout Obama’s presidency, prosecutions jumped extensively, increasing from under 40,000 per year to almost 100,000 at the highest point in 2013.

In April 2018, the Trump administration issued a “zero tolerance” policy that directed U.S. attorney’s offices on the border to prosecute as many cases of illegal entry and reentry as possible. Then–Attorney General Jeff Sessions said the goal was to reach a 100 percent prosecution rate. After the administration pushed the zero tolerance policy, cases referred from CBP for prosecution rose 134 percent, and prosecutions rose by 74 percent.

Family Separation

To effectuate the ramped-up prosecutions for illegal entry and reentry, adult migrants were taken into criminal custody to face charges. When parents were taken into criminal custody, they were separated from their children, who were then turned over to the office of Health and Human Services and treated as unaccompanied minors. Under Bush and Obama, parents and children were not routinely separated to pursue criminal prosecutions for illegal entry and reentry.

Trump did rescind the zero tolerance policy after mass outcry, and a district court subsequently said family separation was a violation of the Constitution and ordered separated families reunited. But the administration has struggled to comply with court orders to reunite separated families, as the number of children separated was discovered to be thousands more than the administration had initially claimed in court. The government is still in the process of counting all the children who were separated over roughly the first two years of the Trump administration.

Family Detention Centers

The Obama administration initially slowed family detentions, using only a single family detention center in Berks County, Pennsylvania. In 2014, however, three more facilities at Karnes, Texas; Dilley, Texas; and Artesia, New Mexico, were opened to deter asylum-seekers from seeking refuge in the United States. (Asylum-seekers waiting a final decision and not kept in detention are often paroled into the United States to await asylum hearings.) The Artesia facility was so criticized that it was shut down in less than a year. The facilities at Berks, Karnes, and Dilley are still in use by the Trump administration.

During the Obama administration’s attempts to deter asylum-seekers, a settlement that controls how children in detention are handled was expanded to cover both unaccompanied and accompanied children, against the Obama administration’s wishes. The Trump administration has sought to dismantle these protections, which are known as the “Flores Settlement,” including recently arguing in court that allowing children to sleep on cement floors without access to soap or toothbrushes is within the scope of the protections required by the settlement. Judges in that case on the 9th U.S. Circuit Court of Appeals for the seemed dumbstruck by the government’s argument that since the Flores Settlement didn’t specifically list products like soap and toothbrushes, they needn’t be provided for the government to meet the standard that children be kept in “safe and sanitary” conditions.

So far in fiscal year 2019, more than 33,613 people have been booked into family detention centers.

Internal Guidance and Policy

Under Obama, a series of policies known collectively as the “Morton memos” laid out the administration’s deportation priorities, which focused on threats to national security and encouraged the broad use of “prosecutorial discretion.” The Migration Policy Institute estimated that under Obama and the Morton memos, only about 13 percent of undocumented immigrants would be targets for deportation.

Under Trump, all previous policy memos were rescinded, which eliminated the priorities under the Obama administration. Instead, the Trump administration is focused on deporting as many people as possible. Under Trump, any immigrant suspected of violating any immigration law may be subject to removal proceedings. This includes people who are accused of some minor criminal acts like traffic offenses.

Deportations

More deportations were ordered under the Obama administration than have yet been ordered under the Trump administration. Due partially to changes in how deportations are cataloged and partly to increases in enforcement, Obama has the distinction of overseeing more deportations than any prior president. According to numbers from ICE, total deportations under Obama hit a high in 2012 with 409,849 removals, and a low in 2015 and 2016, when the numbers dipped below 250,000.

In fiscal year 2017, under Trump, the number of removals was 226,119, before rising to 256,085 in fiscal year 2018 and 282,242 for fiscal year 2019 as of June.

Remain in Mexico Policy

This year, the Trump administration took border enforcement further than any prior president and implemented a program to force many asylum-seekers to wait out their cases in Mexican border towns, instead of being paroled into the United States or detained in an ICE facility. This unprecedented policy has forced thousands of asylum-seekers to wait in dangerous border towns with no understanding of what is happening in their cases and limited access to U.S. legal counsel.

Ultimately, many of the immigration enforcement tactics we find so appalling, like family detention and unsanitary and dangerous CBP processing centers, were happening during the Obama administration. The difference is that the Trump administration’s increased focus on deterring asylum-seekers and deporting as many people as possible, as well as a broad swath of changes to internal policy, has made terrible situations worse and subjected more people to them.