Fusion
By John Walker
July 27, 2015
A
federal judge has ordered the release of hundreds of women and children
detained for illegally immigrating into the U.S. But, although these
people will no longer be
confined to their current jail-like family detention centers, they are
far from out of the woods.
U.S.
District Judge Dolly Gee ruled on Friday that Immigrations and Customs
Enforcement had violated the stipulations of a 1995 court settlement
related to the detention
of migrant children, the Los Angeles Times reports. The government now
has until August 3 to either appeal the decision or explain why the
families held together in detention centers should not be released by
court order in 90 days.
“Flores
v. Reno [the 1995 settlement in question] has three broad protections
for minors arrested for immigration violations,” Carlos Holguín, the
Center for Human Rights
and Constitutional Law’s General Counsel, told Fusion. The settlement
states that border patrol must treat detained juveniles humanely, that
migrant kids can only be detained in open facilities licensed to care
for children, and that the government is required
to minimize the amount of time children are detained.
The
government’s defense hinged on the idea that the settlement’s
provisions don’t apply to accompanied minors. The judge disagreed.
There
are currently three family detention centers in operation (two in
Texas, one in Pennsylvania), and together they hold as many as 3,500
detainees, according to Steven
H. Schulman, a pro bono partner at Akin Gump Strauss Hauer & Feld
LLP. The actual number of people currently held in family detention is a
bit unclear—the LA Times reports 1,700, while the NYT says 2,600—but it
definitely marks an astronomical increase over
the 80 or so detainees on average that Holguín from the Center for
Human Rights estimated prior to March 2014.
None
of the detention centers meet the provisions laid out in Flores v.
Reno. The living quarters are cramped and uncomfortably cold—Holguín
says that minors and mothers
uniformly referred to their living quarters as “ICE boxes”—not to
mention overcrowded; as many as 100 people could be forced to share one
toilet, and, often, zero trash cans would be provided for the disposal
of used diapers and other waste.
The
facilities are also jail-like—which makes sense, considering they’re
owned by private prison contractors who are, obviously, not licensed to
care for children.
Federal
officials also don’t appear committed to minimizing the women and
children’s time in detention, a third violation of the Flores v. Reno
settlement. In an effort
to curb last summer’s sudden surge in undocumented immigration—and,
arguably, earn the Democratic Party some political clout in the lead-up
to the 2014 midterm elections—the Department of Homeland Security under
the Obama administration began pushing family
detention harder than ever before. Their prolonged detention is meant
to act as a deterrent to others, but Holguín told Fusion that there is
no evidence that the policy change has made a difference.
So,
what will happen to the families affected by Friday’s ruling? Most, if
not all, of them will likely seek asylum. First, they will have to prove
a credible fear of
returning to their home country—likely one of the Northern Triangle
countries of Central America (Honduras, Guatemala, and El Salvador).
They will then have a hearing with a judge who will determine whether
they have a well-founded fear of being persecuted
(by family, gangs, law enforcement, or other forces) if they return.
Both
Holguín and Royce Murray, the National Immigrant Justice Center’s
Director of Policy, confirmed that a majority of people are able to
establish credible fear of deportation
during the initial screening interview. (Although, Holguín notes that
far more would pass if the government gave everyone lawyers upon
apprehension.) But according to the Transactional Records Access
Clearinghouse (TRAC), only 52.8% of asylum seekers were
granted their request in 2013—a percentage that was observed to be
dropping nine months into 2014.
Access
to legal counsel remains one of the biggest challenges facing
undocumented families, before and after their court date. That’s why
Schulman, the pro bono partner
from Akin Gump, told Fusion that, if there were a “silver lining” to
family detention en masse, it would be that lawyers know exactly where
to find the people in need of representation. It’s much more difficult
for undocumented immigrants who receive an NTA
(“notice to appear” in court) upon apprehension at the border to track
down legal counsel in a country where they might not even speak the
language than for lawyers to come to them.
On
the other hand, the network of law firms and law schools that provide
attorneys for people in family detention centers are “not really a
sustainable model,” says Murray,
the NIJC’s Director of Policy. It also won’t translate over to a system
that emphasizes immediate NTAs at the border with basically zero legal
assistance over family detention, which might once again be the case if
ICE is unable to successfully appeal Judge
Gee’s ruling.
“The
obstacle is making people aware of their rights,” Murray said—one that
might prove insurmountable if the government doesn’t make it a priority.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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