Biden Reportedly Considering Family Detention

I’ll believe it when I see the White House returning to this ‘Obama-era’ policy

By Andrew R. Arthur on March 9, 2023

On March 6, the New York Times reported that the Biden administration is considering returning to the (heretofore) long-standing policy of detaining alien adults and children entering the United States illegally in “family units” (FMUs). That would be the right thing to do — and it’s legally required — but I’ll believe it when I see Biden returning to a policy championed by his old boss, Barack Obama.

FMU Entries and Obama’s Response. Up until the early 2010s, foreign nationals considering an unlawful trek to the United States realized that bringing a child along while being smuggled by a criminal was both unduly harmful and cruel to the child.

I can give you plenty of proof about the dangers children face during that smuggling journey, but two pieces of evidence stand out. First, there’s a speech then-Vice President Joe Biden delivered in Guatemala City in June 2014, following a conference on illegal entries by unaccompanied alien children (UACs) — kids who make the illicit trip alone in the custody of a smuggler paid for by their parents or other family members:

The United States, to state the obvious, is greatly concerned by the startling number of unaccompanied minors that — children and teenagers who are making a very perilous journey through Central America to reach the United States. These are some of the most vulnerable migrants that ever attempt — and many from around the world attempt — to come to the United States. They’re among the most vulnerable. And the majority of these individuals rely — we estimate between 75 and 80 percent — rely on very dangerous, not-nice, human-smuggling networks that transport them through Central America and Mexico to the United States.

These smugglers — and everyone should know it, and not turn a blind eye to it — these smugglers routinely engage in physical and sexual abuse, and extortion of these innocent, young women and men by and large.

And they profit from the misery of these children and teenagers; these desperate, desperate young people. [Emphasis added.]

One response to that might be to say children travelling alone are completely different from children travelling with parents who can protect them from the rapacious smugglers the then-vice president referenced. Right?

Wrong, because as a bipartisan panel — the Homeland Security Advisory Council — convened to look into FMU entries determined in an April 2019 report:

Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.

Criminal migrant smuggling organizations are preying upon these desperate populations, encouraging their migration to the border despite the dangers ... and extorting migrants along the way, thereby reaping millions of dollars for themselves and the drug cartels who also charge money to cross the border. [Emphasis added.]

In any event, the “criminal migrant smuggling organizations” to which the VP referred realized in the early 2010s that adult migrants entering illegally with a child had a virtual free ticket into the United States, because DHS lacked family detention facilities.

Here’s why there was then no family detention: The United States has prisons for adults and juvenile detention (“juvie” in law-enforcement parlance) for young delinquents, but we don’t send kids to jail with their parents and don’t send parents to juvie with their delinquent children. Family detention is a concept that could only exist in the immigration context, and up to that point, it didn’t.

Smugglers soon got smart to this scheme. In FY 2013, Border Patrol agents at the Southwest border apprehended 14,855 aliens in FMUs, a figure that soared to over 68,000 in FY 2014, as smugglers realized how large a loophole family entries really were. Those migrant families were almost exclusively from Mexico and the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.

Faced with that surge in family migrants, President Obama — to his credit — acted quickly, opening family residential centers (FRCs) to house FMUs in Karnes City and Dilley, Texas, and Artesia, N.M. (Artesia was closed shortly thereafter).

As Vox explained in 2018, “the Obama administration attempted to tamp down the number of Central American families seeking asylum in the US by keeping families in detention and processing and deporting them as quickly as possible”. Or, as the Obama White House put it in August 2014:

The President and his Administration have made very clear that children and adults traveling with children who survive an unbelievably dangerous journey from Central America — at the hands of smugglers — will be taken care of while they are in our custody, and will be returned if no legal relief or protection is applicable to their case [Emphasis added.].

Thanks to Obama’s quick action, the number of UAC apprehensions at the Southwest border dropped to fewer than 40,000 in FY 2015.

Flores and the 20-Day Rule. Neither FMU detention nor the decline in FMU entries lasted, for reasons having to do with a 1997 settlement agreement then-AG Janet Reno entered into with a class representing minor aliens in the custody of the then-Immigration and Naturalization Service (“INS”, the precursor to ICE, CBP, and USCIS), in a case called Flores v. Reno.

Advocates had been complaining about the conditions of detention and release for minors in INS custody for over a decade at that point (largely unsuccessfully), but in 1996 the Clinton DOJ sat down with them and hammered out the Flores settlement agreement, which governed the conditions of INS detention and release of alien children.

For nearly two decades, it had been interpreted to apply only to UACs, but in May 2015 the Flores class plaintiffs asked the judge overseeing the agreement (Dolly Gee, of the U.S. District Court for the Central District of California) to apply it to the children in the FMUs Obama was detaining, as well.

Among the terms in the Flores settlement agreement is that INS/DHS detain minors in the “least restrictive setting appropriate” based on their age and special needs “in a licensed facility”.

There’s no state licensing scheme for detained family housing (again, it’s a concept that applies only in the federal immigration context), and so, in August 2015, Judge Gee ordered DHS to release the aliens in FMUs — both adults and children — within 20 days.

Why 20 days? She made it up out of whole cloth based on a representation by ICE that it was the average amount of time it took DHS to process migrant families. The Ninth Circuit considered the Obama administration’s appeal on an “expedited” basis, but it wasn’t until July 2016 that it limited Judge Gee’s order to apply to just the children in FMUs, not the adults (who could be detained).

To avoid “family separation”, however, DHS started releasing the parents, as well, and FMU apprehensions at the Southwest border soared again, exceeding 77,000 in FY 2016.

Thanks to Trump’s 2016 campaign trail rhetoric, apprehensions at the U.S.-Mexico line went into a brief lull in FY 2017 (falling to just fewer than 304,000, from nearly 409,000 the year before), but FMU apprehensions continued apace. By FY 2018, more than 107,000 aliens in family units were caught entering illegally at the Southwest border.

Zero Tolerance, Backlash, and Remain in Mexico. In response, Trump’s AG, Jeff Sessions, demanded “zero tolerance” for illegal alien prosecutions of illegal migrants (“improper entry” is both a civil offense subjecting the offender to removal and also a federal crime) in April 2018.

That policy applied to all adults, including adults in FMUs, and in practice it meant that those adults were sent to U.S. Marshals Service custody, leaving the children — under DHS’s interpretation — “unaccompanied”.

Under an extremely problematic 2008 law (that even Obama asked Congress to fix), however, those unaccompanied alien children had to be sent to shelters run by the Department of Health and Human Services for placement with “sponsors” in the United States.

The media pounced on it, alleging that Trump was deliberately “separating families”, although to be fair, zero tolerance was poorly implemented. In the face of a PR disaster, Trump ended the practice after about six weeks in late June 2018, but that did not keep either the media or Biden from flogging the issue all the way to the 2020 elections.

Smugglers feasted on Trump’s back-peddling on family migrants: In FY 2019, more than 473,000 of the just over 851,500 migrants apprehended at the Southwest border were in FMUs — 55.6 percent of the total.

That sent Trump back to the drawing board, and what the administration next came up with in response to the FMU migrant flood was the “Migrant Protection Protocols” (MPP), better known as “Remain in Mexico”.

Under MPP, migrants — including migrants in FMUs — apprehended crossing the border illegally were sent back across to Mexico to await their removal hearings, under the agreed-to protection of the Mexican government.

As DHS determined in its October 2019 assessment of the program, MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families. MPP removed incentives for FMU migrants to make weak or bogus claims when apprehended because they wouldn’t be released into the United States.

Thanks largely to MPP, FMU apprehensions at the Southwest border fell from a peak of nearly 84,500 in May 2019 — before Remain in Mexico was fully implemented — to fewer than 16,000 by that September after it was comprehensively applied — an 81 percent decline in just five months.

By February 2020 — the month before CDC issued its first order under Title 42 of the U.S. Code directing the expulsion of illegal migrants caught at the Southwest border in response to the Covid-19 pandemic — there were just 7,117 FMU apprehensions at the Mexican border, a two-year low.

Along Came Biden. And then, along came Biden.

Once he entered the White House, Biden made a production of “reuniting” separated families — including by bringing the deported parents back to the United States, reportedly along with entire villages of shirt-tail relatives (Congress may want to check that latter point out).

Biden has also been fighting a nearly two-year-long battle with state plaintiffs to end Remain in Mexico (in Texas v. Biden), but in any event it doesn’t appear than any aliens in FMUs have been returned to Mexico under the program since Biden took office, while thousands have been brought back here.

As for FMU detentions — again, a policy of both the Obama and Trump administrations — in December 2021, Biden simply stopped them. Not “stopped detaining migrant families for more than 20 days” — just “stopped”. Or as ICE Detention Management puts it on its web page:

In the past, ICE housed family units — which contain adult [alien] parents or legal guardians accompanied by their own juvenile [alien] children — in its [FRCs]. In March 2021, ICE converted the [FRCs] from an over-72-hour residential program to an under-72-hour residential/staging program called Family Staging Centers (FSCs).

In FY 2022, ICE opted to shift its resources again to increase efficiencies in Alternatives to Detention (ATD) enrollment for family units.


Once the agency determined that the FSCs were at a lower-than-expected capacity, ICE took steps to increase the use of the bed space for single adults and eventually, ICE stopped housing families entirely by December 2021.

There’s a lot wrong in those statements, but it’s more elision than outright lie.

You might think from that statement that “FSCs were at a lower-than-expected capacity” because family apprehensions had dropped, but in fact the opposite occurred.

Border Patrol agents apprehended more aliens in FMUs in FY 2022 than they ever had before: nearly 483,000, or about 10,000 more than in FY 2019, when things were so bad that DHS had to declare a “border emergency” with the system “in freefall”.

Things weren’t much better in FY 2021, either, as FMU apprehensions at the Southwest border exceeded 451,000. All told under Biden, CBP has encountered more than 1.257 million aliens in FMUs at the Southwest border, fewer than 257,000 of whom were expelled under Title 42 — leaving more than 1.2 million family aliens who, by law, should have been detained, even if just for 20 days.

“FSCs were at a lower-than-expected capacity” because the administration chose not to detain most of those 1.2 million aliens, and since December 2021 hasn’t detained any.

That inspires smugglers to all-but force adult migrants to bring children with them on their journeys. Of course, the chorus of soi-disant “advocates” for those kids, uttering constant refrains of “think about the children” whenever family detention is mentioned, ignore the fact the children in FMUs are little more than pawns in this racket, a “get out of detention free” card to be played by the adults when CBP shows up.

If the Times is correct, the administration has either wised up to the fact its non-detention policies have been handmaiden to countless rapes, extortions, and abuses inflicted by smugglers on migrant children and their parents, or it fears the political backlash when hundreds of thousands more abused children and parents start showing up at the border. This being D.C., my money’s on the latter.

Note that the word “Trump” appears eight times in that article, including in the following passage:

“Ending the inhumane practice of family detention has been one of the only positive immigration policy decisions of the Biden administration,” said Leecia Welch, a lead lawyer in the case that led to the 1997 Flores settlement, which limits the time children can spend in detention and establishes minimum standards for holding facilities.

“It is heartbreaking to hear there could be a return to the Trump-era use of this practice,” she said.

Biden would actually be returning “to the Obama-era use of” family detention, which is patently obvious given that Judge Gee issued her 20-day Flores release order in August 2015.

Deriding President Obama doesn’t carry the same cachet among the smart set as using “Trump-era” as an epithet, which is likely why the 44th president’s name appears just once in the Times article: “Family detention was also used by former Presidents George W. Bush and Barack Obama. Both faced criticism for the conditions in which they held migrant families.”

As the Times reveals, alien advocates much prefer the current open-borders regime, which is why I’ll be surprised if Biden follows through on family detention. If he does, however, the president will be sparing an untold number of children trauma and peril, and returning to a policy followed by Presidents Bush and Trump — but most effectively used by Biden’s old boss, Barack Obama.