The ABA recently objected to the extensive use of electronic ankle monitors as a condition for release from detention for Central American parents who arrived at the border to enter the United States with their children.
“The ABA supports the use of humane alternatives to detention,” ABA President Paulette Brown wrote March 18 to Homeland Security Secretary Jeh Johnson. She said the ABA believes, however, that “electronic monitoring is a form of restriction on liberty similar to detention, rather than a meaningful alternative to detention.” Ankle monitoring, she said, should only be used in limited circumstances where there has been an individualized determination establishing a genuine flight risk based on objective factors or a criminal history.
It is widely recognized that Central American parents and children are fleeing extraordinary levels of violence in their home countries and are seeking protection in the form of asylum and withholding of removal. There is strong evidence that this population presents valid claims to asylum, Brown said, but, instead of a humanitarian response, DHS has relied on an enforcement-based approach of family detention and overly restrictive custody determination and release procedures.
“The ABA believes that any restrictions or conditions placed on noncitizens to ensure their appearance in immigration court or for their removal should be the least restrictive, nonpunitive means necessary to further these goals,” Brown said, noting that those wearing monitoring devices are being perceived as criminals in the community and treated accordingly. Ankle monitors also may impede the ability of these families to access counsel and to fully prepare their cases for immigration court, she said.
The ABA said ankle monitors should be used only as a last resort and recommends that DHS expand the use of release on recognizance, reasonable bond and parole and should implement community-based alternative programs that incorporate social services and legal support mechanisms.
Brown said that while the ABA acknowledges that there are objective factors that justify the use of ankle monitors, DHS should implement consistent and clear criteria and standards for their use.
The ABA also opposes the DHS practice of prohibiting detained mothers from being accompanied by counsel at meetings during which alternatives to detention and terms of release are being discussed and determined. Also troubling is the practice of prohibiting counsel from accompanying individuals during their mandatory reporting appointments with DHS after their release.
“Individuals should have the right to have counsel present at all stages of their immigration proceedings and processes, particularly at critical juncturesthat will determine their custody and release status,” Brown said.