By Bonita S. Gutierrez
When I began to practice immigration law, I was initially shocked to discover that a pro bono client whom I had agreed to represent was an asylum seeker who was being held in Contra Costa County jail despite having no criminal record. I wondered how the government could justify imprisoning a person without bringing any criminal charges against her.
Although my client was held in county jail with the general prison population, legal precedent says that she was being held under civil confinement, not criminal confinement. The Supreme Court has held that immigration proceedings, including immigration detention, occur in the civil context and not the criminal context. See Zadvydas v. Davis, 533 U.S. 678, 679 (2001) (“Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause. Government detention violates the Clause unless it is ordered in a criminal proceeding with adequate procedural safeguards or a special justification outweighs the individual’s liberty interest. The instant [immigration detention] proceedings are civil and assumed to be nonpunitive[.]”). That is, according to law, her imprisonment was not for punitive reasons. The government used a similar rationale to intern Japanese-Americans during World War II. My client, who had no criminal record and yet found herself in jail, had understandable difficulty comprehending that she was not being punished.
Why Are Many Immigrants without Criminal Records Being Held In Jails or Jail-like Detention Centers?
The U.S. Department of Homeland Security (“DHS”) justifies civil immigrant detention as necessary while DHS processes immigrants – either for deportation or for release on bond or with an ankle monitor while they litigate their immigration case, including any claim for asylum. Whether immigrants are held in remote immigrant detention facilities or local county jails is often a question of space and resources.
One factor contributing to civil confinement of immigrants without criminal records is the law providing for “expedited removal.” Expedited removal was passed in 1996 as part of a larger package of immigration laws. The law allows immigration officers to deport a person at or near the border when he or she does not have proper documents to enter and without going before an immigration judge to evaluate any claim she or he might have to legal status, including asylum. United States treaty obligations codified into statue prohibit the deportation of people to a country where they will be persecuted or tortured- a concept known as non-refoulement. The expedited removal law therefore provides people who express such a fear with a right to an interview with an asylum officer. The interview is meant to protect people with a so-called “credible fear” of return from being deported back into the dangers of whatever persecution she was fleeing. A finding of credible fear means that the asylum seeker has shown a “significant possibility that she will ultimately be granted asylum here.” See R.I.L-R v. Johnson, 80 F.Supp. 3d 164, 170 (Dist. Ct. D.C. 2015), citing 8 U.S.C. § 1226(a).
In practice, however, not all asylum seekers who express a fear of return are provided this interview. A Freedom of Information Act lawsuit revealed border agent scripts, drafted in Spanish, falsely telling people who fear returning that they can only claim legal status through family members and pressuring them to sign their own deportation order without going before a judge.
When border patrol properly allows a person to describe her fear of return to her home country to an asylum officer, the asylum seeker is often detained for weeks or months until DHS can arrange the credible fear interview at the detention center. If the asylum officer incorrectly finds an absence of credible fear, the asylum seeker may seek review with a judge, usually while remaining detained for even longer. Even when the asylum officer finds that the person has a credible fear of returning, the person typically remains detained until she pays a bond or accepts an ankle monitor. ICE usually offers bonds from $1,500 to $10,000 for women and children, although there is no upper limit, and bond demands can be much higher for men – even those without criminal records. Those asylum seekers unable to pay bond must continue to wait for release with an ankle monitor. Ankle monitors cannot be removed except by DHS contractors. Each day, wearers must station themselves near a wall for over an hour while the device is charged with a chord, lest the device will sound incessantly. Many who wear them complain that the devices decrease circulation to limbs and get uncomfortably warm. The devices are bulky and hard to hide except under loose pants and some wearers report feeling stigmatized by appearing to have committed a crime.
Does Confining Immigrants Without Criminal Records Comply with the Constitution?
In the first place, does the Due Process Clause of the Constitution protect immigrants? The Constitution provides due process of law not only to United States citizens but to all “persons” present in the United States – regardless of their immigration status. The Supreme Court has upheld this interpretation. See Zadvydas, 533 U.S. 678 at 693 (“But once an [immigrant] enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including [immigrants], whether their presence here is lawful, unlawful, or permanent.”). At core, the due process clause provides that the government cannot take away a person’s life, liberty, or property without first affording him or her due process of law. Certainly, putting my client in jail deprives her of liberty; and as a person present in the United States, the due process clause applies to her.
What, then, does Due Process mean for immigrants held in detention?
The Supreme Court has upheld limited mandatory detention of immigrants convicted of certain aggravated criminal offenses and found deportable. The Court reasoned that DHS needs sufficient time to work out the logistics of deporting a person to another country. See id. at 690, 701 (“A statute permitting indefinite detention of an [immigrant] would raise a serious constitutional problem.” Noting that “Congress previously doubted the constitutionality of detention for more than six months.”) See also Demore v. Kim, 538 U.S. 510, 526 (2003).
What about immigrants being detained with no criminal record? DHS relies on federal statute to continue to detain immigrants who have passed their credible fear interviews. Under law, each asylum seeker who passes her credible fear interview may, in DHS’s discretion, be released. An Immigration and Customs Enforcement (“ICE”) officer is tasked with making custody determinations and may release an asylum seeker, on bond or with an ankle monitor, where the asylum seeker can show that her release would not pose a danger to the community and she is likely to appear in court for all future proceedings. See R.I.L-R v. Johnson, 80 F.Supp. 3d at 171, citing 8 U.S.C. § 1226(a).
Can People Fleeing for Their Lives be Deterred?
Until 2015, DHS often used its discretion to continue to hold asylum seekers in detention on the stated theory that doing so would discourage others from trying to flee extreme violence by coming to the United States. Moral objections aside, government attempts to deter others from fleeing persecution by detaining asylum seekers in the United States are legally dubious and empirically ineffective. See id. at 189 (“In discussing civil commitment more broadly, the [Supreme] Court has declared such ‘general deterrence’ justifications impermissible…. In addition, a general-deterrence rationale seems less applicable where … neither those being detained nor those being deterred are certain wrongdoers, but rather individuals who may have legitimate claims to asylum in this country.”) (citing Kansas v. Crane, 534 U.S. 407, 412 (2002). Tellingly, after a federal judge in the District of Columbia certified a class action against DHS for using this theory as a guiding principle in deciding whether to release asylum seekers, DHS announced it would no longer do so. See Flores v. Lynch, No. 15-56434, 2016 WL 3670046, at *11 (9th Cir. Jul. 6, 2016). Nevertheless, federal law continues to allow DHS and ICE wide discretion in deciding whether and when to release asylum seekers.
As a result, many women and children seeking refuge from extreme violence in their home countries are held in so-called family detention centers across the country. United States asylum law mandates that the government must protect people fleeing persecution in their home countries, but holding a traumatized population in jails or detention centers featuring jail-like conditions seems contrary to that mission. See Anker, Deborah E., Law of Asylum in the United States, 2015 ed., § 1:2 at 10 (“in 1980 the United States enacted specific statutory measures to conform provisions of its domestic law to the [United Nations Convention relating to the Status of Refugees].”). The fact that both jails and immigration detention facilities are run by the same management companies, Corrections Corporation of America and GEO Corporation, belies the argument that detention centers do not feature jail-like conditions. U.S. Customs and Border Protection, the agency that screens refugees before they are sent to detention centers, has been accused of abusive behavior including withholding food and keeping barely clothed people in freezing cold rooms without blankets for hours or days on end without ever turning off the lights.
On August 10, 2016, 22 mothers held in family detention in Pennsylvania went on a hunger strike because of the length of time they have been detained. Over a third of these mothers have been detained for more than 300 days.
As I have written before, Guatemala, Honduras, and El Salvador have effectively buckled under pressure from highly sophisticated and well-financed transnational crime syndicates, sending thousands of men, women, and children fleeing from extreme violence in their home countries. Perhaps not coincidentally, the number of expedited removals has skyrocketed at the same time.
Hasty deportations are often prioritized over due process rights. The irony is that many asylum seekers without criminal records find themselves confined the longest when they muster the courage to tell armed border patrol officers that they are afraid of returning home.
In recent years, deportation and border patrol operations have enjoyed increased budgets but asylum officers charged with evaluating peoples’ fears of returning home have not, nor have the immigration courts charged with evaluating asylum claims. Given the misery this situation often causes for asylum seekers, young and old, one has to wonder if most Americans would agree with the morality, let alone the constitutionality, of detaining them.