Federal Judge Blocks Arbitrary Detention of Mothers and Children Seeking Asylum in the U.S.

Our country's own laws provide for people fleeing persecution in their own country, to apply for asylum upon their arrival to the U.S. The most vulnerable people, who are unable to avail themselves of the protections of their own country because of persecution, or a well-founded fear of persecution, on account of their race, religion, nationality, membership in a particular social group, or political opinion, can seek asylum in the U.S. Providing a haven for those attacked and in danger, on account of their race, their religion, their nationality, their particular social group, or their political opinion, is at the core of our American values. Yet since July 2014, Central American mothers and children seeking asylum have routinely been locked up while awaiting their asylum hearings.

The mothers, as with all undocumented people apprehended at the border, are subject to removal unless they can show "credible fear" of persecution in their home country during the initial screening. Once they establish "credible fear", they will have an opportunity to present their claim to an immigration judge in removal proceedings. Once the mothers establish "credible fear", there is a significant possibility that they will be granted asylum. Between the initial screening and the immigration court procedure, it is in the Immigration and Customs Enforcement (ICE's) discretion to release the mother and children if it is determined that she is likely to appear for her immigration court hearing and if it is determined that she is not dangerous. When asylum seekers are deemed to not be a flight risk, and are not dangerous, they are typically released and stay with family until their immigration court hearing. But instead of considering the factors based on each mother's situation, ICE has been following a general policy of detaining Central American mothers and their children to serve as a deterrent to other would-be asylum seeker in Central America.

Yesterday, a Federal District Judge ruled that Central American mothers and children who are here seeking asylum, cannot be detained for the purpose of deterring future immigration. The court's ruling means that ICE cannot continue to uniformly lock up mothers and children without first making that individualized determination as to whether they are dangerous, and whether they pose a flight risk.

Since June of 2014, there has been a dramatic increase of mothers and children crossing the U.S. border to escape violence in their home countries. The families have been locked up in detention facilities, including facilities in remote areas of Texas, Arizona, and Pennsylvania, while awaiting their asylum hearings. Volunteer lawyers who represented mothers in their asylum hearings reported inhumane conditions for mothers and children at these facilities. The inhumane conditions, for mothers and children who have already made credible asylum claims, mobilized religious groups, human rights groups, labor groups, domestic violence advocacy groups, and other diverse groups to speak up about this abhorrent treatment of victimized mothers and children. In his legal opinion, the Judge concluded that there is no question that there has been irreparable harm beyond remediation, and that the detention has been particular harmful to children.

As he considered the constitutional due process rights for these mothers and children, the Judge quoted from the U.S. Supreme Court in reminding parties that "once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent".

Immigration News / by Michelle Gee