Since the surge of asylum seekers arriving at our Southern border began in 2013, the number of people held in family detention has increased dramatically. Men, women (including pregnant women), children, and infants are kept in secure facilities—jails—while their asylum cases are adjudicated. There have been plenty of issues at these facilities: Allegations of physical, sexual, and psychological abuse by guards, inadequate food, suicide attempts. A recently-filed lawsuit claims that people are kept in freezing, overcrowded, and unsanitary cells. Many immigration advocates have been calling for an end to family detention, and recently 33 U.S. Senators signed a letter requesting a halt to the practice.
On the other side of the debate are those who believe that family detention does not go far enough. They argue that allowing anyone to arrive at the border, request asylum, and then receive entre into the United States is an abuse of the system, a threat to our security, and an inducement to others—many others—to try the same thing. The restrictionists, led by several House Republicans, believe that permitting asylum seekers into the United States is tantamount to an open borders policy: Anyone who wants to come to the U.S. need only say the magic words—“I am seeking asylum”—and they will be granted admission.
Is this, then, our only choice? Either we detain everyone who arrives here until their cases are finally decided, or we throw open our borders to all comers?
I can imagine circumstances where it would be justified to detain arriving asylum seekers–including children–and I think it is worth exploring the possible justifications, and whether they are legitimate. Let’s take a look at some of the reasons for family detention and whether they are justified:
1. Some of the people coming here are dangerous, and since we don’t know who the bad guys are, we should detain everyone – Detaining an asylum seeker (or any arriving alien) who poses a danger to the U.S. is perfectly legitimate. Given how little we know about people seeking entry at the border, it makes sense to be cautious when releasing people from detention. But in the case of detained families, it is highly unlikely that mothers and children present a threat to our country’s safety. For the most part, I don’t think the U.S. government views mothers and children as a security issue, and I don’t see how the widespread detention of such people can be justified on these grounds.
2. The only way to deter migrants from making the risky journey to the U.S. is to stop rewarding them with admission into our country – This argument at least has the pretense of concern for the migrants’ safety. Indeed, a bill floating around the House of Representative, which would make it more difficult for unaccompanied minors to seek asylum in the United States, is called the Protection of Children Act. Of course, the journey from Central America to the U.S. can be dangerous (though the danger is far less than that faced by asylum seekers who cross the Mediterranean to Europe). Despite its superficial good intentions, my feeling is that this argument is simply a pretext to keep people out. If lawmakers really cared about the fate of the young people coming to the U.S., they would ensure that each person receives a complete and fair hearing on the merits of her case.
3. Most Central American asylum seekers have weak cases, and so they will eventually be deported. If we allow them in, they will disappear and not abide by their removal orders – The validity of this argument depends largely on how frequently non-citizens abscond. As usual, we need more data to be sure, but Immigration Court statistics indicate that since 2005, only about 60.9% of minors appear for their court hearings (the appearance rate has improved somewhat in the last few years, and represented juveniles are much more likely to appear (92.5%) than unrepresented (27.5%)). Given that a significant percentage of unaccompanied minors will abscond, this seems to be a legitimate argument in favor of detention.
To make matters worse, many of the asylum seekers coming from Central America have weak cases and—assuming they appear for their hearings—they are likely to be ordered removed. While this argument presents a real challenge to immigration advocates, there is, I think, a more humane (and less expensive) response than jailing families.
Alternatives to detention (“ATD”)–such as electronic monitoring, bond, and intensive supervision (via telephonic or in-person reporting)–are effective ways to improve court-attendance rates. A recent GAO report indicates that between 95 and 99% of aliens on one ATD program reported for their hearings (the report also indicates that more data is necessary to fully evaluate the program). If more resources were shifted from detention to ATD, it would likely become an even more effective method of ensuring aliens’ appearance in court.
Also, while asylum cases from Central America are often legally weak, many of the applicants have a very legitimate fear of persecution in their home countries. The problem is that the fear of harm (from gangs, cartels or domestic partners) does not easily fit within a protected category for asylum. I remember one case where I did a bit of pro bono work: A gang member wanted to date the applicant’s sister. When the parents refused, the gang murdered most of the family. Applicant escaped the massacre and came to the U.S. An Immigration Judge denied asylum because the case did not fit into a protected category. That decision was ultimately reversed (by a federal court), but it illustrates the problem—just because you do not fit neatly into a protected category does not mean that you will be safe in your country. Because of the high stakes involved and the difficulty of demonstrating a “nexus,” asylum cases from Central America often need more—not less—attention from decision-makers and advocates. When applicants are detained and their cases are rushed through the system, it is often impossible to ensure that due process is respected and that we are fulfilling our humanitarian obligations (and sometimes, the results are deadly).
4. If we allow the migrants to enter, it will only encourage others to follow – Our geographic isolation has resulted in relatively few people seeking asylum in our country (compared with, say, Jordan, South Africa or Pakistan). This has allowed us the luxury of an elaborate (i.e., expensive) asylum system. Our system is not designed to handle large numbers of applicants, and indeed, the surge has threatened “the system” in at least two ways: (1) Delays throughout the system have become so interminable that many applicants simply cannot wait for a decision. Some are separated from close family members; others are under great psychological pressure. These delays—measured in years–have proved too much for many applicants, and they have left the country for fates unknown; and (2) The large numbers of arriving aliens have also attracted Congressional attention, and several bills have been introduced that would curtail the rights of asylum applicants.
The question here is whether detaining families and rushing court cases will deter would-be migrants, and thus save “the system.”
As a general principle, I think it is a bad idea to deny certain asylum seekers due process in order to preserve the system for other asylum seekers. Part of the problem is that we have never had a real debate about who should qualify for asylum. Victims of gang violence and domestic violence are not traditional asylum seekers. Such people qualify for asylum as a result of creative lawyers pushing the boundaries of the law. Perhaps if there had been a rational policy debate about whether such people should qualify for asylum, or whether we should offer them some other type of humanitarian protection, we would not be faced with our current dilemma.
Finally, I doubt that the restrictionists will ever be satisfied with President Obama’s efforts related to border enforcement. Trying to preserve the asylum system by appeasing such people is pointless. While I believe we need to decide, as a country, who we will offer asylum to, I am not convinced that detaining families will convince those who oppose the asylum system to change their minds.
In the end, while I believe there are reasonable arguments supporting family detention, I am not convinced. Given the alternatives to detention, we can better fulfill our humanitarian obligations and protect our borders without detaining families and children.
Hi I’m at in Brazile from Florida, I am an asylum awaiting for my court date for more than six months. I was recruited to work here in Brazil. There were no job , as I discovered it’s a scam. Now I lost the papers, how can I enter US again.
It depends on the case, and you probably need to talk to a lawyer about the specifics. If you are outside the US, and you previously had a court case, you most likely have a deportation order (or you will, once the court gets to your case), meaning that you have a legal bar to returning for a period of years. In some cases, it is possible to overcome the bar, but it depends on the case. Whether there is another way back, I do not know, so try talking to a lawyer. Take care, Jason
Thanks Jason for your advice, the case is not an offense , it’s for my asylum permit. I didn’t done any crime . Can you advice me of a free lawyer in Carlifornia, San Diego
I do not know a free lawyer there, but I did a blog post about this on September 22, 2016, which has some links that might help you. Take care, Jason
Morning Mr. Jason , I am in Tijuana border. I don’t have the money and the immigration officer are not good for me. Can I get a free immigrants lawyer or refugee organization to assist me? My court date for asylum is over.
I think it will be difficult to get a non-profit in the US to help you if you are outside the US, but you can try. I did a blog post about that on September 22, 2016 with some links that might help you. Take care, Jason
Hi Mr Jason !!! My name is Maksim i am from Ukraine ,thank you very much for your help that you gave to my friend Andrey ..i did sent the asylum case status enquire to my LA office ,they did respond me stating that my asylum was approved 3 month ago and they did sent it to my last address ,but i did not receive anything ,i did change my address letting them know that i did that and i did receive my interview notice ,fingerprint notice my ead all of them was sent to my new address but asylum decision letter and i 94 they did sent to my old address …they told me to file g639 and i 102 ,should i pay for i 102 ..thank a lot !!!
I suppose that is mostly good news, since the case is granted. It’s too bad they simply can’t re-send you the approval notice. The G-639 is free and will get you a copy of the whole file, including approval, but it will take many months. I am not sure whether the I-102 is faster. If your work permit is valid for the next year or so, you could probably just file the G-639, but if you need your documents faster, try the I-102. Good luck, Jason
Thanks a lot for your respond Jason,do i need i 94 for applying greencard for petitioning my family with the form i 730 or just approval letter is enough
The uscis sent me a letter saying that they did sent it to old address and at the same time they did sent me an email stating that they did sent it to my current new address …i dont know what to say ,just astonished …what if go with infopass to Uscis may they just print me the new one right there ..
For an asylum case, I do not think INFOPASS will help – I think you need to go to the asylum office or email them directly. Good luck, Jason
The approval letter (which should include the I-94) should be enough, along with the other information required by the I-730, of course. Take care, Jason
Jason God Bless you for your help ,really ,may God give you what ever you want ,by helping us you are showing that there are still really good people left .May God Bless You and Your family Jason !! Good luck with everything.
Thank you. Right now, I would kind of just like to go to bed. I will soon.
Hi,
I’m going with reason #3, although i do think monitoring is a better option (although i can understand the reason for detainment) As you mentioned, these Central Americans have very weak cases (poverty and fear of gangs is not a basis for asylum). Even if they are represented, the odds of winning are not in their favor.
So they can, not show up in court, get a deportation order, not leave and disappear into the underground. They can show up in court, and if their case starts going south, ask for voluntary departure, not leave and disappear into the underground. They can show up in court, fight their case only to lose, get a deportation order, not leave and disappear into the underground. So the public understandably feels detainment is the best of bad options- the aliens lose their case and since they are detained, you know they are not going to disappear on you and can be more easily deported (I believe Australia does this).
Even coming up with a social group category is an issue (realistically, the only basis they have a snowball’s chance in hell of making). I have looked over cases among the circuit court of appeals and you have ALL MANNERS of lawyers desperately trying to describe their clients in terms of a social group: Salvadorean who resisted gangs; Salvadorean who resisted gangs and informed police; Salvadorean who resisted gangs and informed police who did nothing; Salvadorean who resisted gangs and informed police who did nothing yet suffered retaliation; Salvadorean who resisted gangs and informed police, testified, and still suffered retaliation; Salvadorean who resisted gangs and was perceived as informing the police. I’m being facetious, but going by court rulings i’ve read, not by much.
I saw a seminar where the lecturer stated they was an attorney arguing a SIJ case, claiming the applicant can’t reunite with one parent due to abandonment- that parent had died of natural causes (therefore since the parent was dead, reuniting with the applicant was impossible, thus, the parent “abandoned” the child). I understand an attorney’s duty to zealously advance/represent the client’s interest, but there are times I think these attorneys are talking pure nonsense in their attempts to “push” or “expand” the basis for asylum (you wrote an earlier post talking about the tension of trying to expand the basis for asylum versus negative reactions to those attempts). Almost seems like a disservice to their clients when attorneys use such BS.
In most cases, I don’t think the lawyers are trying to dis-serve the client, but I have been concerned for some time that expanding the PSG category would result in a negative counter-reaction from people who oppose higher levels of immigration (and who view asylum as a threat to sovereignty). And it is true that many of the PSG definitions are pretty convoluted. If we could ever have a rational policy debate in this country (not likely any time soon), we could perhaps replace PSG with specific categories of people we felt deserved asylum: LGBT, victims of gang violence, victims of domestic violence, etc. Categories of people we felt were not deserving of asylum, would be excluded from the definition. My guess is that we will not see such a policy debate any time soon.
With the increase in forced migrants around the world according to the recently published UNHCR 2014 Global Trends report, the US would do well to expect an increase in immigrants, refugees, and asylum seekers crossing our borders. Instead of seeking to hold on to the ease that our geographical isolation has thus far granted us, we ought to offer to ease the burdens of our EU and developing world neighbors. For more research and practical ways to assist those resettling in the US, visit http://www.refugeeresearchreview.com/