Detaining Central American Women with their Children Violates Dues Process and Humanitarian Principles
by Lisa Laurel Weinberg
“Where death is on the table, there is a heightened need for reliability and accuracy.” (1)
D.M.L. fled Honduras with her 17-year-old and 8-month-old daughters. She had been beaten, threatened and raped at gunpoint by her husband. D.M.L., 33 years old, met her husband at 15 and married him at 16. The abuse escalated in the past two years, with her husband beating and threatening to kill her and pointing a gun to her head several times. She tried to leave, but her husband found her and their children. D.M.L. didn’t go to the police because she knew they wouldn’t help and she was unaware of other resources. She fled to the U.S. and was detained in Artesia New Mexico with her children.
In June 2014, Immigration and Customs Enforcement (ICE) began detaining the Central American women and children who fled from Central America and crossed the U.S. Mexico border at the Federal Law Enforcement Training Center in Artesia New Mexico at a temporary detention center that was a modified ICE training center. In September 2014, I successfully represented D.M.L. in her political asylum case while she and her two children (one a nursing infant) were detained at this detention center. D.M.L. is just one of the hundreds of Central American women with children who have fled from the Northern Triangle countries of Honduras, Guatemala, and El Salvador. Central America has high rates of murder and violence against women. The detainees are mothers with their children primarily fleeing this violence. We met women who were fleeing domestic violence, sexual and physical violence perpetrated on their children, violence on account of their sexual orientation, violence and death threats against their children for refusing to join gangs, death threats against them for not allowing their children to join gangs, and violence and rape by gangs simply because they are women.
In a departure from previous practice and policy, where women with children were allowed to live in the community while they navigated their immigration proceedings, the Obama Administration began detaining them for the duration of their immigration proceedings. The rational for detaining these women and children is to deter other Central American women and children from fleeing to the U.S. The 672-bed facility in Artesia, New Mexico was closed in December 2014, but family detention did not end. The remaining women and children were transferred to a permanent 532-bed immigration detention facility in Karnes City, Texas (now expanded to 800 beds). New arrivals of women and children are being detained in Karnes and in a newly built 2,400-bed facility in Dilley, Texas and at an 89-bed facility in Berks County, Pennsylvania. Overall family detention centers now have space for 3,500 women and children.
Individuals who are apprehended by ICE within 100 miles of the border or turn themselves in to ICE at the border are subjected to “expedited removal proceedings.” “Expedited removal” or in plain language, rapid deportation, allows the government to quickly remove or deport an individual who does not have valid documents to enter the U.S. or who enters the U.S. fraudulently. These individuals can be rapidly deported without a hearing before an immigration judge or a hearing officer unless they tell a Customs and Border Patrol (CBP) agent that they have the intention to apply for asylum or that they fear of persecution or torture if they are returned to their home countries. Many women don’t know they must state their fear as soon as they encounter a border patrol agent or they will be deported. If they express fear or intention to apply for asylum to a CBP officer, this is when they are detained, otherwise they are deported.
When they are detained they are entitled to a “credible fear” or a “reasonable fear” interview in front of a Department of Homeland Security (DHS) hearing officer. This is where an asylum officer interviews the individual and does an initial screening of the case to determine whether there is a “significant possibility” that the alien could establish eligibility for asylum” or that the person has a “reasonable fear they will be persecuted or tortured.”
In early February 2016, I visited the largest (2400-bed) family detention center, in Dilley, Texas, a town with a population of 3674. According to DHS Secretary, Jeh Johnson, the new detention facilities were built to quickly deport people and to deter future migrants (2). This is evident at the Dilley Detention Center. At Dilley, the immigration court and the hearing offices are set up inside the detention center right next to where the women and children meet with volunteer lawyers. In cases where a judge hears the case, the cases are adjudicated remotely and a judge hears the case through a video Technology System while the women sit in a “court room” with their attorney (if they are lucky enough to get a volunteer attorney) and the ICE agents. The administrative hearing offices are also in the detention center, steps away from the court, down a guarded hallway.
As in Artesia, the Dilley detention centers (or as the New York Times calls them “detention camps” (3) are located in isolated rural areas. It took me a two-hour drive through the desert to get to Dilley. Dilley is a dusty little town with no law offices or social services nearby. The closest hospital has 18 beds. Even if there were sufficient legal, medical, and social services nearby, the women and children cannot leave to seek them out. There is a committed volunteer core of self-funded immigration attorneys led by a small paid staff of the CARA Pro Bono Project, but there are not nearly enough lawyers to meet all of the legal needs of the women and children.
The physical conditions were better than I observed in Artesia, but that does not negate the fact that there are still vulnerable women and children being detained who have fled for their lives, have often been harmed before they fled, have taken a long dangerous arduous journey with their children, may have been harmed en route to the U.S., may have gone without food, water, and medical care on their journey, and are mentally traumatized. Further, I did not observe the living or dining quarters or the medical facilities because legal visitors are not permitted in those areas, however, the U.S. Civil Rights Commission, and independent monitoring body which held hearings visited the family detention centers concluded that the physical conditions were poor and the medical treatment was inadequate (4) Further, numerous studies have shown that even very short periods of detention can undermine a child’s psychological health and physical well being and compromise their cognitive development. Children held in detention are at risk of suffering depression and anxiety, and frequently exhibit symptoms consistent with post- traumatic stress disorder such as nightmares, insomnia, and bed- wetting (5). I myself observed a 15- month-old child who had stopped eating solid foods and had reverted to breastfeeding and was physically listless and whose eyes were staring and vacant.
The detention of children and their mothers is not only inhumane, but incompatible with a fair legal process. In immigration proceedings, migrants have the right to an attorney, but they do not get a
court-appointed attorney, they must acquire an attorney independently who will volunteer or they must hire one at their own expense. Many are not told about their right to seek legal counsel or their right to appeal a negative decision (6). Once detained, a woman in expedited proceedings in a detention center has great barriers to success if she has an attorney, and even greater barriers if she doesn’t have an attorney. The woman seeking refuge has no knowledge of the legal system, does not speak the language, does not know the culture, does not have access to corroborating evidence, may be afraid of the authorities, may be traumatized, may be unfamiliar with technology (hearings are held by video technology), may not be functionally literate, and may be suffering from physical ailments. Further, they may have never told anyone the details about why they had to flee their country, often details of a highly personal and traumatic nature. Many women cannot articulate their fear in such a way that fits within the definition of a refugee entitled to protection. Data from one study shows that only 2.3 percent of Central American families without counsel were allowed to stay in the country, while those with attorneys are 14 times less likely less likely to receive deportation orders (7).
On February 20, 2015, in the Matter of R.I.L-R v. Jeh Charles Johnson, the United States District Court for the District of Columbia issued a preliminary injunction enjoining DHS from detaining Central American families en masse for the purpose of deterring future immigration to the United States, and from considering deterrence of future immigration as a factor in custody determinations (8). However, notwithstanding this order, DHS is still detaining women and children during their eligibility proceedings.
The stakes in refugee cases are grave. An incorrect decision can lead a person to severe physical harm, death, or other severe human rights violations. According to one report, 83 people deported back to Central American since January 2014 have been killed, some within a short time of arrival (9). The attorneys who are volunteering at the detention center have their proverbial finger in the dam and are doing their best to get legal information to the detained women to prepare as many women as possible, but it is not enough to ensure adequate due process protections for their legal cases. Finally, it is inhumane for the U.S. government to detain women and force them to make the choice to be detained and to watch their children deteriorate in order to keep themselves and their children safe, or to return to where they will likely be killed. It is inhumane and a violation of the children’s human rights to detain them at all.
Lisa Laurel Weinberg is an immigration attorney at Community Legal Services and Counseling Center in Cambridge, MA.
(3) The Shame of America’s Family Detention Camps, New York Times, Feb. 4, 2015.
(4) Detention Conditions ‘similar, if not worse’ than migrants’ home countries, report says; Los Angeles Times, Sep. 18, 2015.
(7) Ensuring Due Process Protections for Central American Refugees, Rights in Exile, March 1, 2016.
(8) MATTER OF R.I.L-R v. Jeh Charles Johnson, Case 1:15-cv-00011-JEB Document 32 Filed 2/20/2015 p. 1.
(9) Ensuring Due Process Protections for Central American Refugees, Rights in Exile, March 1, 2016