Necessary to End Family Detention & Reform Procedures, Agree 188 Organizations
As women and children seek safety in the United States, they are increasingly detained–a situation that exacerbates their trauma and abridges their rights. 188 organizations–includiing faith-based groups, civil rights advocates, educators, and legal experts–are calling for the following reforms:
- Families must not be subject to detention except in exceptional circumstances.
- Families must receive full due process at the border.
- Families should not be detained for purposes of deterrence.
- Families should not be separated.
- DHS should use other tools besides detention to mitigate flight risk where there is a demonstrated concern.
Dear Mr. President:
In light of recent developments and ongoing negotiations in litigation on the detention of immigrant families, we, the undersigned 188 immigrants' rights, faith-based, civil rights, human rights, survivors’ rights, and criminal justice reform organizations, international educators, and legal service providers, urge your administration to end the practice of family detention.
Since the expansion of family detention a year ago, growing evidence continues to demonstrate that mothers and children detained in the Karnes County (TX), Dilley (TX), and Berks County (PA) family detention facilities are largely seeking protection in the United States. Detention has had a traumatic impact on the mental health and well-being of these families, and on children in particular, especially given the trauma they have already faced in Central America. These mental health effects are compounded where families have suffered detention that is prolonged and indefinite in nature. A growing number of Members of Congress have voiced their opposition to the detention of families, and a steady stream of news articles and human rights reports illustrate that families cannot be detained humanely.
In 2009 the Department of Homeland Security (DHS) stopped detaining families at the T. Don Hutto Detention Center (TX) following litigation and human rights reports decrying the practice. Today the status of two different lawsuits challenging current family detention policies should point to the same conclusion. In February 2015 a D.C. District Court issued a nationwide preliminary injunction in R.I.L.R. v. Johnson finding that the government cannot detain asylum-seeking mothers and children from Central America as a means to deter others from fleeing to the United States, and required that the government conduct individualized determinations to evaluate whether a family poses a danger or a flight risk that would require detention. More recently, negotiations are currently underway in litigation to enforce the Flores Settlement, in which plaintiffs argue that current family detention practices in secure and unlicensed facilities violate the longstanding settlement agreement in Flores v. Meese, which protects the rights of children in immigration custody and generally favors their release.
These developments make clear that DHS should not continue current practices of holding parents and children together in confinement. DHS must bring its detention policies into line with domestic law as well as our international obligations. As your administration charts a course forward, we urge you to uphold the following principles:
Families must not be subject to detention except in exceptional circumstances.
The dramatic expansion of family detention has resulted in many mothers and children being detained at a high cost to their mental health and physical well-being. Detention of mothers and children has been extended even after they pass credible fear and reasonable fear screening interviews, first through a policy of no-bond and no-release for virtually all detained families – a policy which remains in place for certain families not covered by the RILR injunction – and currently through DHS’ imposition of prohibitively high bond amounts. DHS has broad authority to release from detention vulnerable populations who do not pose a flight or public safety risk either on recognizance or, where necessary, with additional measures such as alternatives to detention. These should include case management services to ensure that families are informed of their legal rights and obligations and receive appropriate referrals to social and legal services.
Families must receive full due process at the border.
Since last summer many Central American mothers and their children fleeing violence have been subjected to expedited removal and “mandatory detention,” often in remote locations that severely inhibit access to counsel, due process, and protection. Moreover, there is evidence that many migrants are unable to express a fear of return during expedited removal at the border because Customs and Border Protection (CBP) officers fail to ask questions about protection needs or accurately capture responses to such questions. DHS is now “reinstating” prior orders of removal against mothers who are apprehended with their children and subjecting these families to detention. Instead of placement into expedited or reinstatement of removal, all families should be placed in full hearings before an immigration judge under section 240 of the Immigration and Nationality Act – an essential due process safeguard against deporting mothers and children to violence and persecution.
Families should not be detained for purposes of deterrence.
Detaining one family to stop another from coming to the United States is illegal, unjust, and ineffective. The district court in R.I.L.R. rejected the U.S. government’s arguments that family detention was justified as a means to deter future migration, and instead required the government to assess whether detention is necessary to mitigate an individual’s flight or public safety risk. Further, the use of detention to dissuade a mother, child, or other individual from seeking asylum is inconsistent with U.S. obligations under international norms.
Families should not be separated.
The Flores Settlement applies to all children in DHS custody, including those detained with their parents, and favors a policy of release and reunification except for narrow exceptions. Wherever possible, children should be reunited with a parent or legal guardian. In order to effectuate the rights of children under the Flores Settlement, in the case of families apprehended at the border, DHS should release both parent and child except where extreme and unusual circumstances would necessitate otherwise. Compliance with the Flores Settlement must not result in a parent being detained while a child is released.
DHS should use other tools besides detention to mitigate flight risk where there is a demonstrated concern.
Families apprehended at the border generally have relatives or other strong community ties in the United States to whom they could be released during the pendency of their removal proceedings. Where an individualized assessment demonstrates that a family poses a flight risk, DHS should turn to community-based alternatives to detention (ATD) – not detention – to mitigate that risk. In fact, Immigration and Customs Enforcement (ICE) recently issued a Request for Proposals specifically for case management ATD programs appropriate for families. As detailed in your FY 2016 budget request, current ATD programs save taxpayer dollars, costing approximately $5 per day compared to $343 per day for a family detention bed. Current ATDs have high compliance rates, with 99% appearance at immigration court hearings and 84% compliance with removal orders.1
The writing on the wall is clear – DHS should not detain children and their parents in jail-like facilities. We urge you to undo the harsh family detention policies set in place in summer 2014 and implement a more just and humane approach. Family detention should not be your legacy. Now is the time to end it once and for all.
