Balancing Discretion: Securing the Rights of Accompanied Children in Immigration Detention

Abstract

This article explores the treatment of children-those who are detained as part of a family unit-within the U.S. immigration detention system. Investigations of the T. Don Hutto Residential Center in Williamson County, Texas, and the Berks County Shelter Care Facility in Leesport, Pennsylvania, suggest that the human rights of children being detained in these facilities are routinely violated. Further, the violations do not represent unique departures from the norm, but stem from routine practices and policies instituted at a systemic level. This article argues that the underlying detention framework's excessive reliance on administrative discretion has created openings for these human rights abuses. The over reliance on discretion permeates decision-making in four areas of the detention framework: (1) the detention standards, (2) administrative agency management, (3) detention facility actions, and (4) facility staff members' conduct. This article acknowledges that some amount of administrative discretion is inevitable to give an agency the flexibility it needs to fulfill its congressional mandate. With regard to the detention of accompanied immigrant children, however, the current framework has not reached the correct balance. Instead, it has conferred upon the agency a dangerously inflated amount of discretion. Only by appropriately cabining agency discretion-through comprehensive legislation and congressionally mandated regulations- will the U.S. be able to ensure that the rights of the immigrant children in its custody are protected.