Introduction
Background
The federal government has broad power over the subject of immigration and exercises this authority by regulating immigration throughout the United States, including California. Specifically, federal law charges the U.S. Department of Homeland Security (Homeland Security) with administering and enforcing laws related to immigration. It is the mission of U.S. Immigration and Customs Enforcement (ICE), a component of Homeland Security, to enforce the full range of immigration and customs laws within the interior of the United States. Federal law authorizes the federal government to detain certain noncitizens who are seeking admission into the country or who are already in the country, pending the outcome of immigration removal proceedings. ICE performs the functions of the detention and removal program, and it may enter into contracts with local governments to provide detention services for detainees. ICE has entered into such contracts with certain local governments in California; thus, California has an interest in this process. Nonetheless, immigration is a federal responsibility.
Federal law and a 1997 settlement agreement referred to as the Flores Settlement Agreement, govern the care and placement of unaccompanied children.1 For example, federal law generally requires ICE to transfer an unaccompanied child in its custody to the U.S. Department of Health and Human Services (Health and Human Services) within 72 hours after determining that the child is unaccompanied. Health and Human Services’ Office of Refugee Resettlement (Refugee Resettlement) is responsible for coordinating and implementing the care and placement of unaccompanied children.
Once an unaccompanied child is in Refugee Resettlement’s custody, Refugee Resettlement must promptly place the child in the least restrictive setting that is in the best interest of the child. In accordance with the Flores Settlement Agreement, Refugee Resettlement releases unaccompanied children to sponsors—parents, legal guardians, or other suitable adults—if possible. If a sponsor is unavailable, then Refugee Resettlement generally places these unaccompanied children in a state‑licensed program that provides services for dependent children, such as a foster family home. In certain other cases, such as when unaccompanied children pose a risk to themselves or others or have been charged with a criminal offense, they are placed in a juvenile detention facility. If Refugee Resettlement determines that an unaccompanied child no longer poses a risk to himself or herself or others, it may transfer that child to a less secure facility, such as a group home. If an unaccompanied child turns 18 years old while in Refugee Resettlement’s custody, that person is transferred to the custody of Homeland Security.
Number and Status of Unaccompanied Children Initially Identified as Having Been Separated From Their Parents and Still in the Care of Refugee Resettlement as of December 2018
- 8—Pursuing reunification with parents
- 95—Parents declined reunification
- 28—Parent unfit or poses danger to child
- 28—Subsequently determined not separated from
parent (for example, entered the country unaccompanied or were separated from non‑parent relative)
Source: Health and Human Services’ Office of the Inspector General’s report Separated Children Placed in Office of Refugee Resettlement Care, OEI-BL-18-00511.
On April 6, 2018, the U.S. Attorney General directed each U.S. Attorney’s Office along the southwest border to adopt a “zero‑tolerance policy” for prosecuting certain offenses related to improper entry into the United States. The Flores Settlement Agreement requires that unaccompanied children be placed in the least restrictive setting that is appropriate to each child’s age and special needs. In 2016 the Ninth Circuit Court of Appeals expanded this requirement to children arriving in the United States with their parents. Consequently, in 2018 when the federal government took custody of parents under the U.S. Attorney General’s policy, it separated families. The children from those families effectively became unaccompanied and were transferred to Refugee Resettlement for placement. The federal policy has since changed so that families are no longer separated. Instead, families are required to be detained together where appropriate and consistent with law and available resources.2 However, although the total number of children separated by immigration authorities is unknown, the Office of the Inspector General for Health and Human Services reported that as of December 2018, 159 children were still in Refugee Resettlement’s care nationwide, as the text box shows.
Finally, in September 2018 the United States Senate introduced a bill to clarify responsibilities related to unaccompanied children and to provide additional protections and mechanisms for tracking them. For example, the bill would amend federal law to require Health and Human Services to notify the California Department of Social Services (Social Services) of the unaccompanied child’s location within the State before releasing that child to a sponsor. As of February 13, 2019, the bill was still pending.
Immigration Detention Contracts
During our audit period from July 2013 through June 2018, ICE had contracts with three cities, four counties, and one private entity to house detainees in nine detention facilities within California.3 Also during this time, Refugee Resettlement had a cooperative agreement with Yolo County to house unaccompanied children at the Yolo County Juvenile Detention Facility (Yolo Juvenile Facility). As of August 15, 2018, the Yolo Juvenile Facility was one of only two secure care facilities in the country—facilities that provide the strictest level of supervision among institutions that house unaccompanied children. Figure 1 shows the locations of the 10 detention facilities and the city or county that held the contract related to these facilities during our audit period. We present in Appendix B some demographic information on the individuals housed in those detention facilities from July 1, 2013, through June 30, 2018.
Figure 1
Ten Detention Facilities in California Housed Detainees or Unaccompanied Children
From Fiscal Years 2013–14 Through 2017–18
Source: ICE Facility Database, Google maps, ICE contracts and other documents, and federal reports.
Note: Santa Ana City Jail ended its contract with ICE during the audit period, and ICE had removed all detainees by June 30, 2017, so we did not include it in our review.
* Facility either ended or did not renew its contract with ICE after we began our audit.
† The Mesa Verde Detention Facility is also called the Mesa Verde ICE Processing Center.
‡ The Adelanto Detention Facility is also called the Adelanto ICE Processing Center.
Since June 2018, two of the counties and one of the cities have ended their contracts with ICE. In June 2018, the Sacramento County Board of Supervisors voted against extending the term of the county’s existing ICE contract, which expired on June 30, 2018. In Contra Costa County, the Office of the Sheriff informed ICE in July 2018 that it was terminating Contra Costa County’s agreement to house ICE detainees effective November 7, 2018. In December 2018, the city manager of McFarland notified ICE that the city intended to terminate its contract in 90 days.
ICE’s contracts establish an amount per day that ICE will pay for each detainee that a facility houses. This rate varies among the facilities. Unlike ICE’s contracts, Refugee Resettlement’s agreement with Yolo County requires the county to submit a program budget for federal approval. The approved budget includes categories of costs instead of a per‑day payment rate, and Yolo County tracks its costs according to those categories.
ICE uses two entities to inspect conditions in California detention facilities. It contracts with a private company, the Nakamoto Group, Inc. (Nakamoto), to inspect facilities that hold ICE detainees to determine whether these facilities are complying with ICE’s performance‑based national detention standards (detention standards). Additionally, ICE’s Office of Detention Oversight (Detention Oversight) periodically inspects facilities to determine compliance with standards that directly affect detainee health, safety, and/or well‑being.
Furthermore, Homeland Security’s Office of the Inspector General (Inspector General) began performing unannounced inspections of ICE detention facilities in March 2016, in response to concerns regarding conditions for detainees in ICE custody. The unannounced inspections are designed to monitor compliance with official government health, safety, and detention standards. Finally, Refugee Resettlement conducts monitoring visits of Yolo County’s program at the Yolo Juvenile Facility to examine the services provided to unaccompanied children.
State Action Limits Involvement in Immigration Detention
The Legislature has restricted local government involvement in housing detainees while increasing state monitoring of this practice. Legislation passed in September 2016 found that recent immigration enforcement programs sponsored by ICE have suffered from a lack of transparency and accountability. As of June 2017, state law prohibits cities, counties, and local law enforcement agencies from entering into new contracts with the federal government to house detainees or unaccompanied children in locked detention facilities. State law also prohibits cities, counties, and local law enforcement agencies with existing contracts to house detainees or unaccompanied children from modifying or renewing those contracts in a way that expands the number of beds for such individuals.
Furthermore, as of June 2017 and until July 2027, state law authorizes the California Attorney General (Attorney General) to review local or private locked detention facilities in California in which adult or child noncitizens are being housed or detained for purposes of civil immigration proceedings or who are being held pursuant to a contract with Refugee Resettlement. The Attorney General is required to review, at a minimum, conditions of confinement, the standard of care and due process provided to individuals, and the circumstances around their apprehension and transfer to the facility. The Attorney General is to report his findings to the Legislature and the Governor, and to post the report on the Attorney General’s website by March 1, 2019. However, the law providing the Attorney General with authority to review facilities is being challenged by the U.S. Department of Justice.
Two other state entities also have responsibilities related to reviewing facilities that can house detainees and unaccompanied children. The Board of State and Community Corrections (Community Corrections) is responsible for establishing minimum standards for the design and operation of local adult and juvenile detention facilities. At least once every two years, Community Corrections also inspects whether those facilities are complying with those minimum standards, which relate to staff training, inmate programs and services, medical services, and other aspects of facility design and operation. Through its inspections, Community Corrections reports a facility’s actual population as well as its rated capacity—the number of inmates it was designed to hold in conformity with standards such as square footage per inmate and the number of occupants per cell. Rated capacity is not an enforceable standard, so detention facilities can house populations in excess of that number. However, state law established procedures for the potential early release of inmates whenever a local detention facility’s population exceeds its actual bed capacity, and Community Corrections collects early release data from counties. Community Corrections also awards funding for the construction of local adult and juvenile detention facilities, including funding allocated by state legislation.
Social Services is responsible for licensing community care facilities, such as foster family homes and group homes, some of which hold agreements with Refugee Resettlement to house unaccompanied children. Social Services must inspect these facilities at least once every two years to ensure that they comply with licensing standards, such as standards that dictate that facility personnel are competent to provide services and that facility buildings and grounds are clean, safe, sanitary, and in good repair. Social Services also has the authority to take any action it deems necessary to ensure the safety of children placed in any facility.
Figure 2 shows which state entity or officer has responsibilities related to each type of facility that can house detainees or unaccompanied children. As the figure depicts, both the Attorney General and Community Corrections review or inspect local detention facilities and juvenile detention facilities. However, state oversight of the other types of facilities is unique to a particular entity: only the Attorney General reviews private detention facilities, and only Social Services inspects community care facilities.
Figure 2
State Entities and Officers That Have Responsibilities Related to Facilities That Can House Detainees or Unaccompanied Children
Source: State law and information from entities.
Footnotes
1 In a 2001 modification to the Flores Settlement Agreement, the parties stipulated that the agreement would terminate 45 days after the federal government publishes final regulations implementing the terms of the agreement. In September 2018, Homeland Security and Health and Human Services proposed regulations to parallel the substantive terms of the agreement. Go back to text
2 According to the U.S. Government Accountability Office’s April 2018 report Immigration Detention: Opportunities Exist to Improve Cost Estimates , ICE has three family facilities—two in Texas and one in Pennsylvania. The facilities in California we reviewed did not house families. Go back to text
3 Santa Ana City Jail had a contract with ICE during the period, but ICE had removed all detainees by June 30, 2017, so we did not include it in our review. Go back to text