April 01, 2015

ABA urges DHS not to place families in detention

ABA President William C. Hubbard urged the Department of Homeland Security (DHS) last month to abandon current policies that he said have resulted in unprecedented levels of immigration detention, including a return to the “failed practice of family detention.”

Hubbard, in a March 26 letter  to DHS Secretary Jeh Johnson, pointed out that the ABA for more than two decades has opposed the use of detention except in extraordinary circumstances and that current DHS detention policies fail to meet the ABA’s Civil Immigration Standards. The DHS policies instead, he said, presume detention as the default position for many migrants, particularly Central American women and children seeking asylum.

Hubbard said that since June 2014 DHS has expanded the capacity for detention of families by approximately 1,000 detention spaces and has concrete plans to create an additional 2,500 beds in the coming months. He explained that the department, which reached a decision in 2009 to eliminate the detention of families, has chosen to emphasize detention in addressing the humanitarian challenges presented last summer when larger numbers of women and children arrived at the U.S. border seeking protection.

By placing Central American women and children into expedited removal proceedings, DHS requires detention until they pass a credible fear interview allowing them to pursue an asylum claim. In addition, DHS initially insisted, based on a deterrence rationale, on the continued detention of families even after a favorable credible fear interview.

“Such detention violates basic principles requiring that any deprivation of liberty be justified based on individual circumstances and instead serves an impermissible punitive function that should be reserved for those convicted of crimes,” Hubbard wrote. He also stressed that detention causes severe harm to asylum-seeking children and families because of their unique developmental vulnerabilities and the likelihood that they have already suffered serious trauma.

DHS recently began to allow for release of some families after a favorable credible fear interview upon payment of high bond amounts that do not appear to reflect any individualized assessment, Hubbard said.

He emphasized that the widespread use of detention also significantly impedes access to legal representation, which enhances due process protections, increases rates of appearances before immigration courts, and improves the efficiency of the immigration court process.

Family detention facilities are located in remote areas that are far from major urban centers where legal services organizations and pro bono attorneys can be found. This makes it challenging for families to obtain representation and places a serious burden on the resources of pro bono legal service providers, he explained.

     Hubbard also emphasized that detention is not necessary to accomplish the primary goal of ensuring court appearances because children and families released to family members in the United States are likely to appear in court, particularly when they are represented by counsel.

“There is no question that the rapid increase in families and unaccompanied children entering our country over the past year has presented challenges,” Hubbard wrote. “However, in the rush to address those challenges, the United States cannot abandon the principles of liberty, fairness and due process that make this country a beacon for those suffering persecution around the world,” he said.

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