ABA Commission on Immigration report excoriates federal detention policy for immigrant families
Image from Shutterstock.
A report released Aug. 19 by the ABA Commission on Immigration with the assistance of the law firm of O’Melveny & Myers takes the federal government to task for its policy of detaining immigrant mothers with young children.
“Family Immigration Detention: Why The Past Cannot Be Prologue” (PDF) concludes that detaining families—in practice, mainly mothers traveling with young children—violates both U.S. law and human rights norms.
“By resorting to family detention … DHS has not met its emergency preparedness, legal or fairness goals,” the report says. “These failures have left in their wake a population of traumatized children and their parents, struggling with the consequences of unnecessary detention.”
The families described in the report are part of the same exodus as the “surge” of unaccompanied minors that made headlines in 2014. They are typically from Central America and fleeing an increase in gang violence that their governments cannot or will not control. In some cases, they’re also trying to reunite with family or hoping to alleviate extreme poverty. Many turn themselves in to authorities as soon as they reach the border, the report says, and most will seek asylum.
Those asylum claims take time to adjudicate—particularly since the immigration courts had a large backlog of 453,948 cases as of July. Prior to last year, the report says, families in this position were typically released pending hearings.
But in June of 2014, the report says, the federal government adopted a policy of detaining families instead, expressly to deter future immigration. Homeland Security secretary Jeh Johnson described this to Congress as “an aggressive deterrence strategy focused on the removal and repatriation of recent border crossers.” That policy was ended this summer after court challenges, though volunteer attorneys working with detainees say DHS is now requiring high bond payments or electronic monitoring, according to the Los Angeles Times.
As a result, the report says, families are now sent to one of three secure detention facilities—two in Texas, both run by private prison contractors, and a small federally run facility in Pennsylvania. The facilities are prison-like, the report says, with locked-down entrances, set times for lights-out and meals, disciplinary write-ups and periodic body counts.
The report outlines multiple problems with this approach. Legally speaking, it says, a blanket policy of detention for all families violates U.S. Supreme Court precedent, international human rights agreements and ABA policies and standards. It also violates a 1997 settlement in a lawsuit on conditions of detention for minors, Flores v. Meese. In July, a Los Angeles federal court issued a blistering ruling confirming that Flores applies to family detention, the New York Times reported at the time.
The report says detention also results in routine violations of the families’ right to counsel. Though immigration detainees are not entitled to public defenders because they are not charged with crimes, numerous volunteers have made “valiant” efforts to provide pro bono legal services, the report says. But those attorneys confront constantly changing rules not required by the federal government, the report says. These include requirements that volunteers get security clearance or specify the exact time and detainee of their meetings; bans on bringing laptops, phones, food and water into the facility; and refusal to release vital records.
Though the focus of the report is not on conditions of detention, which it says have been well-explored elsewhere, it also says that the prison-like conditions exacerbate the trauma some of these families have faced. The report mentions a hunger strike by adults at Karnes; McClatchyDC has reported one suicide attempt.
The report recommends the government not renew its contracts with the three detention facilities; abandon the policy of detention to deter further immigration; and establish a less prison-like form of detention when release is not possible. It also stresses the importance of providing meaningful access to counsel.
“America is a country that honors family and prides itself on fairness and due process,” ABA President Paulette Brown said in a news release. “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.”
At a related panel held at the ABA Annual Meeting last month, panelists, including report authors Denise Gilman and Dora Schriro, sharply criticized the federal government’s policy of detention.
A video from the ABA Annual Meeting panel:
See also:
ABAJournal.com: “Lawyer says concern for safety of his clients motivated his leak of confidential documents”
ABAJournal.com: “Federal judge threatens to hold immigration lawyer in contempt for leaking confidential document”
