September 01, 2015

Immigration report: family detention violates laws, due process rights

A report released Aug. 20 by the ABA Commission on Immigration concluded that the federal government’s buildup of family detention centers and the practice of detaining families in jail-like settings violates applicable laws and impinges on the families’ due process right to access to counsel and their ability to pursue legal relief based on the merits of their claims.

The report, Family Immigration Detention: Why the Past Cannot Be Prologue, examined the federal government’s response to the recent influx of mothers and young children at the nation’s southwestern border and focused on two detention facilities in Texas and one in Pennsylvania where families are being detained in prison-like conditions while waiting for adjudication of their asylum claims. The report was prepared with the assistance of the law firm of O’Melveny and Myers.

Just one day after release of the ABA commission’s report, U.S. District Judge Dolly M. Gee of the U.S. District Court for the Central District of California issued a ruling giving the government until Oct. 23 to comply with an order to release immigrant children from detention within five days and place them with an available adult or in a non-secure licensed facility. Accompanying parents also should be released unless they are subject to mandatory detention or pose a significant flight risk or security threat, according to the order.

Gee’s ruling upheld a decision she issued July 24 maintaining that the government’s family detention practices violated a 1997 settlement that set restrictions on the detention of immigrant children. Gee had given the government time to the respond to the July ruling, but rejected the government’s reasons about why her July order should not take effect.

“This decision is a clear victory for the rights of children and provides solid recognition that children have particular needs and vulnerabilities that are severely hampered by even short periods of detention,” ABA President Paulette Brown said, calling on the government to promptly comply with Gee’s ruling and not to appeal her decision.

The ABA commission report urges the federal government and the Department of Homeland Security (DHS) in particular to carry out the core DHS core mission of national emergency planning and preparedness by better anticipating and equipping itself to cope with the inevitable migration exigencies whenever they recur without resorting to unnecessary detention. “It reminds us that detention should be imposed only as a last resort and under the least restrictive means possible, particularly for vulnerable populations such as families with children, most of whom are asylum seekers,” the report stated.

The ABA report focused on families and children arriving at the southwest border from Central America in the summer of 2014 who were fleeing violence and seeking safety and protection in the United States. Prior to 2014, almost all families arriving at the U.S. border seeking asylum were released to live in the community while awaiting adjudication on their asylum claims. In June 2014, DHS began placing Central American women and children into expedited removal proceedings, which required detention until they passed credible fear interviews allowing them to pursue asylum claims.

“DHS’s widespread use of detention for women and children seeking asylum in privately-run secure facilities is fundamentally incompatible with constitutional principles, basic international human rights protections, the ABA Civil Immigration Detention Standards, and other ABA guidelines,” the report concluded.

Families at the detention centers face numerous challenges in obtaining adequate legal services, the report stated, and paid and pro bono counsel face arbitrary and inconsistently enforced policies that make attorney-client communications and consultations difficult and time consuming.

The report also recommended several specific reforms, including:

• cease expansion of family detention capacity at the three family detention centers and expeditiously release families currently held in detention;

• permanently abandon deterrence-based detention policies;

• establish and adhere to clear standards of care that include unique provisions for families and children and that do not follow a penal model;

• adopt a presumption of release into the community as the rule rather than the exception; and

• ensure meaningful access to legal representation and legal information for all families subject to detention at every stage of the immigration proceedings.

“America is a country that honors family and prides itself on fairness and due process,” Brown emphasized. “Immigrants and asylum-seekers deserve the opportunity to have their cases heard under the provisions of our laws in a timely, humane fashion, free from the obstacles and indignities imposed by unnecessary detention."