The Separation of Families
The Administration’s policy of prosecuting individuals who enter illegally is resulting in the separation of parents from their children, including toddlers and young children. In order to prosecute the parent for illegal entry or reentry, DHS places the parent in the custody of the U.S. marshals for criminal prosecution. After the criminal proceedings are completed, the individual is transferred to ICE custody. DHS treats the child as if he or she arrived without any parental accompaniment, transferring the child into the custody of Health and Human Services as an unaccompanied child. In many cases, the separated child and parent cannot locate each other or reunite, even after ICE deports one of them.
Between May 6 and 19, 2018, DHS referred for prosecution 638 parents traveling with 658 minor children, an indication that DHS split a large number of families in a two-week period. Although Secretary Nielson denies that DHS has implemented the policy to deter future arrivals, John Kelly explicitly called family separation a “tough deterrent” to illegal border crossings.
Separating families further penalizes people who are attempting to seek asylum and other forms of legal protection as guaranteed by U.S. law. The policy puts pressure on parents to accept a plea agreement, and potentially forego legitimate asylum claims, solely to reunite with their children. Separated children, meanwhile, often lack the capacity to pursue asylum claims on their own. A four-year-old child cannot be expected to navigate complex immigration laws, marshal supporting documentation, or have the wherewithal to secure counsel. Minors may also not fully comprehend the persecution their families suffered, the motivations for that harm, or the dangers they continue to face.
Even if a separated child does understand her asylum claim, other changes instituted by the Trump administration may compel her to abandon it. The administration has implemented more restrictive policies regarding the release of detained UACs—including separated children. These policies substantially prolong the detention periods these minors must endure. Facing little prospect of release or reunion with family, such oppressive conditions will put more pressure on children to withdraw asylum applications and accept removal, despite their fear of harm in their countries of origin.
Indefinite Detention of Asylum Seekers
In a major departure from well-established DHS policy, the current administration has begun indefinitely detaining the overwhelming majority of arriving asylum seekers processed at the border. A 2009 ICE directive that remains in effect generally requires ICE to release such individuals under its parole authority unless ICE makes an individualized determination establishing that the person poses a flight risk or danger to the community.
A class-action lawsuit filed by ACLU and other organizations in March 2018 alleges that ICE is now regularly denying release to asylum seekers arriving at the border, including those who have established a credible fear of persecution.62 The complaint asserts that the release of asylum seekers plummeted to less than four percent during the period from February through September 2017.63 By comparison, in 2013, five ICE field offices whose practices were being challenged released 92 percent of arriving asylum seekers.64 The lawsuit asserts that ICE has violated its 2009 policy by failing to notify detainees of the option to seek parole, denying parole to asylum seekers before informing them of their right to request it, denying requesters an interview, and neglecting requests for parole altogether.65 When these offices do provide formal notices of parole denial, according to the complaint, they typically do not indicate that ICE conducted any evaluation of the individual’s case.
Making matters worse, the Trump administration has curbed “alternative to detention” programs that have facilitated the release of families and individuals from detention. Specifically, in June 2017, the administration terminated the “Family Case Management Program,” a highly successful alternative to detention for family units that received positive credible fear determinations. Among other benefits, the program helped the families navigate the U.S. immigration system and obtain counsel, while ensuring their appearance at court and adherence to other immigration obligations. The program yielded a 99 percent appearance rate at check-in meetings with ICE and at immigration court hearings. By increasing the use of detention on asylum seekers and families, DHS is unnecessarily increasing the costs borne by American taxpayers. It costs $319.37 a day to keep a single family member in a family detention facility, whereas the Family Case Management Program costs only $36 per day for an entire family.
The administration’s policy of detaining nearly all asylum seekers severely constrains their ability to exercise their right to legal counsel. The vast majority of ICE detention centers are situated farther than 100 miles from the nearest government-listed legal aid provider, and one facility in Alabama is 408 miles from the closest provider.
Undermining Access to Counsel
In the U.S. immigration system, attorneys play a vital role in representing people facing removal and ensuring they are able access the rights and protections afforded by law. Immigration law expressly guarantees noncitizens the right to be represented by an attorney in immigration proceedings and examinations.72 Unfortunately, the system does not guarantee counsel paid-for by the government for those who are unable to afford an attorney. As a result, nationwide less than 4 out of 10 people are represented by counsel in their removal cases. The consequences for people who face removal without representation are severe. Detained immigrants in removal proceedings who lack representation are about ten times less likely to obtain relief. Asylum seekers who are denied relief and repatriated to their home country will face the dangerous, lifethreatening circumstances from which they fled.
In the U.S. immigration system, attorneys play a vital role in representing people facing removal and ensuring they are able to access the rights and protections afforded by law. Immigration law expressly guarantees noncitizens the right to be represented by an attorney in immigration proceedings and examinations. Unfortunately, the system does not guarantee counsel paid-for by the government for those who are unable to afford an attorney. As a result, nationwide less than 4 out of 10 people are represented by counsel in their removal cases. The consequences for people who face removal without representation are severe. Detained immigrants in removal proceedings who lack representation are about ten times less likely to obtain relief. Asylum seekers who are denied relief and repatriated to their home country will face the dangerous, lifethreatening circumstances from which they fled.
Finally, the Trump administration has taken additional measures that erode access to legal representation for all people in civil immigration detention. In April 2018, DOJ announced the suspension of the immigration court-run Legal Orientation Program (LOP) pending a review of the program’s effectiveness. LOP is a vital, and sometimes the only, source of basic legal information and pro bono attorney referrals for many detained persons. Though the department lifted this suspension under Congressional pressure, the LOP program is at risk of termination.
Source: AILA Doc. No. 18060102.