Report from Governmental Affairs

ABA cites health and well-being of asylum-seeking mothers and children

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The ABA is urging the Department of Homeland Security to abandon current policies that the association maintains have resulted in unprecedented levels of immigration detention, including a return to the “failed practice of family detention.”

The DHS, which ended immigration detention of families in 2009 except in exceptional circumstances, is now emphasizing detention in response to the surge of women and children from Central America who arrived at the U.S. border seeking protection last summer. Since then, the department has expanded the family detention capacity by about 1,000 detention spaces and has concrete plans for creating an additional 2,500 beds this year.

“There is no question that the rapid increase in families and unaccompanied children entering our country over the past year has presented challenges,” ABA President William C. Hubbard wrote in a letter to DHS Secretary Jeh Johnson. “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 of hope for those suffering persecution around the world.”

Hubbard pointed out that for more than two decades the ABA has opposed the use of detention except in extraordinary circumstances, such as when an individual poses a threat to national security or public safety or is a substantial flight risk. Current DHS detention policies, he said, fail to meet the ABA’s Civil Immigration Detention Standards, which were developed in 2012 as a blueprint for reforming the immigration detention system.

The DHS has been placing Central American women and children into expedited removal proceedings, which require detention until they pass a credible-fear interview allowing them to pursue an asylum claim. The department initially insisted, based on a deterrence rationale, on the continued detention of families even after a favorable credible-fear interview. In February, the U.S. District Court for the District of Columbia ordered a preliminary injunction enjoining the DHS from “detaining class members for the purpose of deterring future immigration to the United States and from considering deterrence of such immigration as a factor in such custody determinations.”

Hubbard wrote that “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.” He also stressed that detention harms asylum-seeking children and families because of their unique developmental vulnerabilities and the likelihood that they have already suffered serious trauma.


A major concern of the ABA is 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 far from major urban centers where legal services organizations and pro bono attorneys can be found.

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

Opposition to family detention has been growing despite steps announced by U.S. Immigration and Customs Enforcement to improve oversight and accountability of detention facilities and the creation of a new committee of experts to advise the director of ICE and Johnson of the DHS. More than 130 House Democrats—led by Reps. Luis V. Gutierrez of Illinois and California’s Zoe Lofgren and Lucille Roybal-Allard—sent a letter to Johnson in May expressing concerns that the department has not fully grasped the impact on mothers and children in custody.

“We must prioritize the health and well-being of mothers and children while also prioritizing our enforcement objectives,” the members stated. “Detaining mothers and children in jail-like settings is not the answer.”

This article originally appeared in the August 2015 issue of the ABA Journal with this headline: “Against Family Immigration Detention: The ABA cites health and well-being of asylum-seeking mothers and children.”

This report is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government. Rhonda McMillion is editor of ABA Washington Letter, a Governmental Affairs Office publication.

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