Baby Jails: The Fight To End The Incarceration Of Refugee Children In America

Author: Philip G. Schrag
Publisher: Oakland, CA: University of California Press, 2020. 396p.
Reviewer: Benjamin J. Roth and Karen Andrea Flynn | May 2021

In 2015, Georgetown law professor Philip Schrag volunteered at a family immigration detention center in Dilley, TX, where he helped mothers prepare for their credible fear interviews with asylum officers. This first-hand experience with immigrant families gave rise to Baby Jails, his book which chronicles the history of the laws, policies, and politics of refugee child detention in the United States. His book’s twin pillars are the Flores Agreement of 1996 (Flores) and the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008. Jenny Lisette Flores was a Salvadoran teenager detained in Los Angeles in the 1980s, whose encounter with the U.S. immigration system was called to the attention of the Supreme Court and, eventually, led to a closer alignment between immigrant detention practices and long-established doctrine in child welfare law protecting the best interests of the child. The TVPRA, while targeting trafficking victims broadly, codified important aspects of Flores, which ensure that unaccompanied alien children (UACs) are detained in the least restrictive environment for a limited period of time. As Schrag establishes, Flores and the TVPRA (and related legislation and litigation) represent an unresolved legal tension in the U.S., but they are also evidence of hard-fought wins by legal advocates, activists, and various organizations. Therefore, while Baby Jails provides readers with a detailed legal narrative of refugee child detention since Flores, Schrag also weaves in critical contextual information about the factors driving out-migration from Central America, the experiences of migrants in detention, and the background of legal advocates who have committed much of their professional careers to protecting the rights of migrant children and their families.

The book is comprised of 12 chapters, the first three focusing exclusively on the Flores case. In chapter one, Schrag sets the stage by providing background on Jenny Flores, her detention, the beginnings of the case, and the 1987 settlement. Building on the 1987 settlement, chapter two looks at the appeal of Judge Kelleher’s ruling and its eventual hearing in front of the Supreme Court. Finally, chapter three describes the lack of oversight and violations of the initial agreement which led to a new settlement.

In chapter four, Schrag details the first intervention by Congress—moving the oversight of UACs to the Office of Refugee Resettlement—and highlighting the important advocacy role of California Senator Diane Feinstein and the Woman’s Commission. Chapters five and six detail asylum law and the establishment of the nation’s first family detention facility. Chapter seven explores how the TVPRA more clearly defined the rights of UACs during the asylum-seeking process, and by adding protections that limited the length of time they could be held in border facilities.

Chapters eight, nine, and ten emphasize the importance of the public response to immigration policies. The increase of UACs from Central America reached a peak in the summer of 2014 due to extreme gang violence, prompting President Obama to declare a humanitarian emergency. Increased attention from media and advocates raised broad public alarm concerning the number of UACs, and the conditions under which they were being detained, primarily in two Texas facilities. Schrag discusses the legal aspect of this time frame and the grassroots initiatives that were started to advocate for more humane treatment. Chapter eleven discusses the case of the Berks detention facility in Pennsylvania. Schrag holds up Berks as an example from 2015 when the government attempted to “solve” the problem of detaining UACs and families by relocating them from the overflowing facilities in Texas.

The concern in 2015 was that releasing asylum-seekers to the community while they undergo proceedings in immigration court would pose a flight risk. Government data, however, suggest that this risk is minimal, prompting President Obama to implement a monitoring program that would allow families to live in the community while awaiting a decision on their asylum case. While this is much less expensive than detention, and is in keeping with the spirit of Flores and the TVPRA, in chapter twelve, Schrag delves into the policies of the Trump administration and the various efforts made to reverse the progress made since the Flores case was settled in 1997—including the elimination of the community release program shortly after Trump took office in 2017. Schrag details Trump’s approach to family separations and his attempts at restricting asylum by implementing the third country transit rule, as well as the remain in Mexico plan, or so-called “metering.” Schrag concludes his book with recommendations for future immigration policy. He argues for continued work to keep children out of detention centers and families together. While he notes an open border without restrictions is unlikely, he does suggest priority being placed on individuals who are fleeing persecution and/or torture. Additionally, Schrag suggests a fair and timely process for families as well as for representation.

Baby Jails is certainly important reading for law students who are interested in immigration law and public-interest work more broadly. It is also important for others in the helping professions, including medicine, education, and social work. Schrag’s attention as a legal scholar to relevant litigation and legislation is not overly technical for non-legal readers, yet it is sufficiently detailed to help emerging law professionals better understand the historical arc of law and precedent associated with the detention of immigrant children and families. Baby Jails also stands out because of how adeptly Schrag integrates the stories of advocates and organizations into his treatment of legal history. The implicit message to readers is that immigration law and its accompanying protections are evolving, shaped by the courage of tenacious advocates who refused to ignore gaps and abuses in the immigration system. And while the book’s chapter on the Trump administration’s policies leave no question in the author’s mind that the immigration system was fundamentally damaged during Trump’s four years in office, Schrag also makes it clear that previous administrations—including Obama’s—were inconsistent at best. Rather than leaving the reader assured that the problem of child refugee detention will simply go away, the implication is that future advocacy will be needed to ensure that all asylum-seeking children and families are afforded the protections that are their right by law. While the book is a historical summary of the legal fight for the protections that were denied Jennifer Lisette Flores in 1985, Schrag’s message is that this fight is not merely the stuff of history. It is a fight that must continue.

Benjamin J. Roth, Associate Professor, University of South Carolina
Karen Andrea Flynn, Doctoral Student, University of South Carolina