Seven years ago, a group of formerly detained immigrant mothers, an Austin-based nonprofit, and a daycare owner teamed up to fight Texas’ handling of federal family detention policy. After a long series of judicial victories and defeats, they secured a rare and belated victory last month in the state’s highest court.
In a little-noticed ruling on June 17, the GOP-controlled Texas Supreme Court decreed that the formerly detained mothers have “standing,” or the right, to sue the state over the duration and conditions of their prior incarceration with their children in Immigration and Customs Enforcement (ICE) facilities in South Texas. This opinion reversed a 2018 decision by the Texas Third District Court of Appeals. The mothers, who are among the suit’s plaintiffs, got out of detention years ago—and, under Biden, immigrant families are not currently being detained in Texas. But the Supreme Court decision bolsters the rights of formerly detained people to sue for harm caused during their detention, and—depending on the lower court decisions to come—could help settle a years-long debate over whether detention facilities can be childcare centers.
“[The state Supreme Court decision] sets a good precedent, that the detained or formerly detained people have standing to bring claims about harm that these kinds of regulations cause,” said Bob Libal, former executive director of Grassroots Leadership, a nonprofit dedicated to prison and detention center abolition. The case will now return to the lower appeals court, which will review the underlying question of whether the state can license prison-like ICE facilities as daycares.
The lawsuit that prompted the state Supreme Court’s ruling has been inching through the court system since 2015, when the plaintiffs filed suit against the state’s attempts to license family detention centers as childcare centers, a move meant to eschew several protections for immigrant children.
“Generally, we’re opposed to the idea that these could ever be called childcare facilities,” said Barbara Hines, founder of the University of Texas Law School Immigration Clinic and an expert witness in the case. “They’re not childcare facilities, they’re prisons.”
In 2014, when a rising number of unaccompanied minors and families from Central America began to reach the U.S. border, the Obama administration revived and expanded ICE family detention, a practice it had nearly eliminated just five years prior. Two Texas centers were opened to detain families: one in Dilley and another in Karnes City. The facility in Dilley, a city spanning 2.3 square miles with a population just over 4,440, would have 2,400 beds. The one in Karnes City, an even smaller hamlet with about 3,400 residents, would have a capacity of 830.
Both centers—which hold asylum-seekers awaiting legal proceedings—are operated by private prison companies. Today, the two detention centers at the heart of the court case no longer house children, according to an ICE spokesperson. Dilley now houses adult women, and Karnes holds adult men, the spokesperson said. Family detention is no longer happening in Texas—rather, families who cross the border are expelled back to Mexico or released into the United States to await court hearings, sometimes under electronic surveillance.
But back in 2015, the two Texas facilities were full of female-led families. And things got complicated. A judge ruled that prolonged detention of children in prison-like facilities violated a decades-old court settlement, called the Flores agreement, that protects the welfare of migrant minors. As a result, the centers would be compelled to release families within roughly three weeks of arrival.
But ICE got creative, asking the state Department of Family and Protective Services (DFPS) to provide the private prison-run detention centers with childcare licenses—which ICE believed would allow it to detain families indefinitely. “There’s no way the DFPS licensing prisons as childcare facilities helps children,” said Jerome Wesevich, attorney with Texas RioGrande Legal Aid, who represented the plaintiffs in the original suit.
The department refused, saying it didn’t have the authority to license facilities where children lived with their parents. For about a year, DFPS remained firm. But eventually, ICE wore the department’s leaders down. In 2015, DFPS issued a rule that said these detention centers could be licensed childcare centers.
But with the licensing did not come all the regulations one might expect. The centers were exempted from adhering to some of the department’s minimum standards. One big point of contention: Children and their parents were placed in bedrooms with unrelated adults.
“My daughter is being exposed to inappropriate adult behavior. … Neither of us feel safe or comfortable,” one formerly detained mother testified in the petition to the state Supreme Court. The lawsuit also alleged that an adult detainee groped an unrelated 12-year-old girl while they shared a bedroom. Migrant families have long reported, and child welfare experts have confirmed, that long-term confinement is psychologically devastating especially for young kids.
“Any increase in the length of time that children are held in these types of facilities is harmful for them,” Wesevich said. “That’s why we resist licensure so much, and it’s why we believe DFPS should be on our side. … They’re not public safety, they’re not immigration enforcers, they’re not law enforcement officers—their only mission is supposed to be to protect children.”
After DFPS issued the rule allowing licensure, Grassroots Leadership filed suit against the state. Several immigrant mothers who had been detained at the Texas facilities, as well as a daycare operator from El Paso, were also plaintiffs in the case. The state and the two private prison operators of Dilley and Karnes, CoreCivic and The GEO Group, fired back, saying none of the people suing had standing, meaning they couldn’t legally bring the issue to court.
A district court sided with the mothers and Grassroots, declaring that the state couldn’t license any more detention centers. But the state successfully appealed to the Texas Third District Court of Appeals, which agreed with the prison profiteers that none of the plaintiffs had a right to sue. Finally, after seven years, the highest court in Texas declared that the mothers, regardless of whether they’re still detained, do indeed have that right. This is an important precedent for future lawsuits against the state, as well as for potential future family detention facilities.
According to a spokesperson for the Texas Health and Human Services Department, the state never issued child care permits to Karnes or Dilley after the 2018 ruling in favor of the state.
Back in 2019, the Trump administration issued federal regulations that would have superseded the protections of the Flores agreement, making indefinite detention of migrant children the law of the land. But the new rule was held up by the courts, then scrapped by Biden. Late last year, the Biden administration officially reduced the population of detained families to zero, relying instead on remote monitoring. But as we’ve seen under Republican and Democratic presidents alike, policies change.
“We don’t have family detention at this moment. But Obama ended family detention, and then he brought it back in 2014,” said Denise Gilman, director of the UT Immigration Clinic. “So I do think that the reality is that it could happen again.”
