A federal judge has ordered the release of hundreds of women and children detained for illegally immigrating into the U.S. But, although these people will no longer be confined to their current jail-like family detention centers, they are far from out of the woods.
U.S. District Judge Dolly Gee ruled on Friday that Immigrations and Customs Enforcement had violated the stipulations of a 1997 court settlement related to the detention of migrant children, the Los Angeles Times reports. The government now has until August 3 to either appeal the decision or explain why the families held together in detention centers should not be released by court order in 90 days.
"Flores v. Reno [the 1997 settlement in question] has three broad protections for minors arrested for immigration violations," Carlos Holguín, the Center for Human Rights and Constitutional Law's General Counsel, told Fusion. The settlement states that border patrol must treat detained juveniles humanely, that migrant kids can only be detained in open facilities licensed to care for children, and that the government is required to minimize the amount of time children are detained.
The government's defense hinged on the idea that the settlement's provisions don't apply to accompanied minors. The judge disagreed.
There are currently three family detention centers in operation (two in Texas, one in Pennsylvania), and together they hold as many as 3,500 detainees, according to Steven H. Schulman, a pro bono partner at Akin Gump Strauss Hauer & Feld LLP. The actual number of people currently held in family detention is a bit unclear—the LA Times reports 1,700, while the NYT says 2,600—but it definitely marks an astronomical increase over the 80 or so detainees on average that Holguín from the Center for Human Rights estimated prior to last summer's surge in undocumented immigration.
None of the detention centers meet the provisions laid out in Flores v. Reno. The living quarters are cramped and uncomfortably cold—Holguín says that minors and mothers uniformly referred to their living quarters as "ICE boxes"—not to mention overcrowded; as many as 100 people could be forced to share one toilet, and, often, zero trash cans would be provided for the disposal of used diapers and other waste.
The facilities are also jail-like—which makes sense, considering they're owned by private prison contractors who are, obviously, not licensed to care for children.
Federal officials also don't appear committed to minimizing the women and children's time in detention, a third violation of the Flores v. Reno settlement. In an effort to curb last summer's sudden surge in undocumented immigration—and, arguably, earn the Democratic Party some political clout in the lead-up to the 2014 midterm elections—the Department of Homeland Security under the Obama administration began pushing family detention harder than ever before. Their prolonged detention is meant to act as a deterrent to others, but Holguín told Fusion that there is no evidence that the policy change has made a difference.
So, what will happen to the families affected by Friday's ruling? Most, if not all, of them will likely seek asylum. First, they will have to prove a credible fear of returning to their home country—likely one of the Northern Triangle countries of Central America (Honduras, Guatemala, and El Salvador). They will then have a hearing with a judge who will determine whether they have a well-founded fear of being persecuted (by family, gangs, law enforcement, or other forces) if they return.
Both Holguín and Royce Murray, the National Immigrant Justice Center's Director of Policy, confirmed that a majority of people are able to establish credible fear of deportation during the initial screening interview. (Although, Holguín notes that far more would pass if the government gave everyone lawyers upon apprehension.) But according to the Transactional Records Access Clearinghouse (TRAC), only 52.8% of asylum seekers were granted their request in 2013—a percentage that was observed to be dropping nine months into 2014.
Access to legal counsel remains one of the biggest challenges facing undocumented families, before and after their court date. That's why Schulman, the pro bono partner from Akin Gump, told Fusion that, if there were a "silver lining" to family detention en masse, it would be that lawyers know exactly where to find the people in need of representation. It's much more difficult for undocumented immigrants who receive an NTA ("notice to appear" in court) upon apprehension at the border to track down legal counsel in a country where they might not even speak the language than for lawyers to come to them.
On the other hand, the network of law firms and law schools that provide attorneys for people in family detention centers are "not really a sustainable model," says Murray, the NIJC's Director of Policy. It also won't translate over to a system that emphasizes immediate NTAs at the border with basically zero legal assistance over family detention, which might once again be the case if ICE is unable to successfully appeal Judge Gee's ruling.
"The obstacle is making people aware of their rights," Murray said—one that might prove insurmountable if the government doesn't make it a priority.
This article originally incorrectly stated that the Flores v. Reno court settlement was reached in 1995.
Bad at filling out bios seeks same.