HPAR Blog

Yes. "Safe and Sanitary" Does Mean Toothbrushes and Soap: A Critical Take on the U.S. Government's Migrant Child Detention Policy

April 21st, 2020

By Paul Olubayo

“If you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket it’s not safe and sanitary. Wouldn’t everybody agree to that?”

- Senior U.S. Circuit Judge A. Wallace Tashima


Surprisingly, it appears that everybody except the United States Government would agree with Judge Tashima’s assertion.

Over the summer, news cycles were filled with stories documenting the hurt and suffering caused by the U.S Government’s asylum and immigration policies. Among these obscene policies, one which has come to the forefront is the U.S. Government’s treatment of unaccompanied migrant children. Asylum-seekers and refugees by nature represent an extremely vulnerable class within society, and as such are to be guaranteed a codified set of rights and protections. This goes double for migrant children who represent a vulnerable class on an entirely different tier. In the context of the United States and the southern border specifically, many of these children arrive alone, without family, undocumented and having just fled some of the most egregious acts of violence known to man.

Under the law presently in place, these children, irrespective of circumstance, are to be treated in accordance with the 1997 Flores Agreement. Under this agreement, migrant children are afforded a basic standard of care which requires the United States Government to:

  • Release children from immigration detention, without unnecessary delay;

  • Place children in the least restrictive setting appropriate to their age and;

  • Implement standards relating to the care and treatment of children in immigration detention.

However, this has not been the case. Rather, what we have seen is the U.S. Government subject these children to deplorable and inhumane policies, and conditions which almost entirely violate the terms of the Flores agreement listed above.

The law under the Flores Agreement dictates that the Government may only hold children for a maximum of 72 hours. However, the reality is children are held in cages for days and weeks at a time. Further, the Agreement states that children are to be held in the least restrictive setting possible; I for one struggle to believe that detention centers with minimal recreational facilities and little to no access to education, with armed guards walking the grounds, constitutes the least restrictive setting. Furthermore, with the U.S. Government as recently as June 2019 announcing plans to utilize former Japanese internment camps from World War Two as facilities to hold migrant children, it is quite apparent that we are seeing a breach of this provision. In addition to this, in recent weeks it has been brought to light that these children are being held without enough food, toothbrushes and soap; in some cases they are unable to shower for days, they are being kept in overcrowded rooms, left uncared for and are being forced to sleep with only aluminum blankets. Again, I struggle to believe this represents a standard of care appropriate for a child. By contrast, the United States should bring their treatment of these children in line with the sentiment of the Flores Agreement. Additionally, they should work to ensure the basic sanitary standards, which would be expected for the average American child, are made available to migrant children in these conditions.

The benefit of the media focus is that the U.S. government’s cruel and disturbing policies have been brought to the surface and aired out for the nation to see. This past summer a video circulated of Justice Department Lawyer Sarah Fabian attempting to parse the meaning of “safe and sanitary” conditions. Watching her attempt to argue that soap, toothbrushes and toothpaste are not necessarily covered under the bracket of ‘sanitary’ stands as a testament to the brazen inhumanity which has seeped into this administration’s immigration policy.

Ultimately, in response to the question; “wouldn’t everybody agree that if you don’t have toothbrushes, if you don’t have soap and if you don’t have a blanket, it’s not safe and sanitary?”

Clearly, this administration would take offense to that.

Paul Olubayo is a Master of Human Rights student at the Humphrey School of Public Affairs. You can contact him at oluba004@umn.edu with any comments or questions.