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The Department of Homeland Security’s “no-release” policy

The Department of Homeland Security’s “no-release” policy

Since June of 2014, the U.S. Department of Homeland Security (DHS) has been refusing to set bond, or release on parole or on their own recognizance or under orders of supervision, the vast majority of the women and children who have arrived in the U.S. seeking refuge.

ICE has argued that “national security” compelled it to detain these families, and that failure to detain them would cause “mass migration” to the U.S. When women, or women and their advocates, go to immigration courts to ask judges to grant them bond, attorneys for DHS had been presenting judges with a packet of written materials in support of its claim. Read that packet here ICE Bond Packet

In December, the ACLU, the Immigration Clinic of the University of Texas School of Law, and others, filed a lawsuit against DHS. Read the lawsuit here: No-Bond Policy Lawsuit 2014.

On February 20, the federal district judge hearing the case, entered a temporary injunction on behalf of the plaintiffs (women who’d been locked up at places such as Artesia, New Mexico; Karnes and Dilley, Robstown and Hutto, Texas; and Berks Pennsylvania). This was a great victory. Read the judge’s order and memorandum here: R.I.L.-R., et al v Jeh Johnson 2-20-2015 Order and here: R.I.L.-R., et al, v. Jeh Johnson, Memorandum of February 20, 2015.

As wonderful as the decision is, however, the judge did NOT order an end to family detention. Our need to organize is as urgent as it has ever been.

In R.I.L.-R. versus Jeh Johnson, the court invalidated a broad “no-release” policy. It ruled that DHS that it cannot base its decision to detain – imprison — hundreds of mothers and children based on a belief about the entire group, or by simply reciting the phrase “national security.” Instead, the assessment of whether a particular woman or child poses a threat, either to the community or to national security, must be based on the individual history and circumstances of that particular person. Friday’s court order represents a victory for liberty, for due process, and for the principle that each person must be judged as an individual, not based on her place of birth, native language, color of her skin, or gender.

We are delighted by this strong decision, but it leaves family detention in place. We must not only continue, but also escalate, our opposition to family detention for FIVE reasons:

1) Many women and children who are detained do not belong to the class of people protected by the decision.

a) Indigenous women and their children are unlikely to be protected by this decision.

The decision of course does not say that indigenous women, or indigenous women whose first language is a Mayan one, and who do not speak Spanish, are not covered. But the EFFECT of the decision may be continued discrimination against these women — not because of any ill will on the part of the judge or the plaintiffs’ lawyers — but because indigenous women who do not speak Spanish are not likely to benefit.

The class of mothers and children covered by the decision are women who have passed their credible fear interviews. But asylum officers who are charged with conducting credible and reasonable fear interviews often have no way to communicate with indigenous women who speak their native languages, and who are not fluent in English or Spanish. Often, these women are sent to court without having been interviewed at all; therefore, many of them have not passed credible fear interviews and are not protected by the injunction in R.I.L.-R. versus Jeh Johnson.

b) Women and children whom the Department of Homeland Security deems “arriving aliens,” are not protected by this decision.

A mother who crosses the border, arrested in the United States, and who convinces asylum officers that she has a “credible fear” of persecution or torture in her native country, benefits from Judge Boasberg’s decision. But if a woman in similar circumstances walks across a bridge with her children, and presents herself to a U.S. official, saying, I am afraid to return to Honduras and I ask you to grant my children and me asylum, that woman will be deemed “an arriving alien.” She is not in the class protected by Friday’s decision. We must still work to free refugees who are so-called “arriving aliens.”

c) Women who have been in the United States and been deported before are not protected by the decision.

Most refugees are not familiar with our laws, including our laws pertaining to asylum. One of my clients travelled from El Salvador several years ago, walking for many days through the desert. By the time she arrived in the U.S., she was dehydrated, with her feet torn up by the rough journey, and very ill. She was allowed to recover, but no one ever asked her why she left El Salvador or explained the process for applying for asylum. She was deported without ever learning that she had any rights.

The mother of three young daughters, she had to flee El Salvador when her eldest was stalked and threatened, and men broke into their home, put a gun to her head, threatening to rape and kill her children in front of her. They arrived seeking safety, but they have been locked up in Karnes since August. A psychologist who visited them a few weeks after their arrival and again in December has described the mental deterioration of these girls, but ICE does not care. There are at least thirteen mothers with young children who have been locked up at Karnes since August. They need our voices.

2) Though the decision strikes a blow against family detention, it does not invalidate family detention itself.

The Department of Homeland Security and the current presidential administration apparently believe that detaining – imprisoning – families with young children, including peaceful seekers of asylum – is a legitimate governmental practice. They are wrong. Long-term detention is punishment, and not appropriate for civil violations. And even short-term detention is very harmful to children, as we keep telling ICE in case after case, submitting research from psychologists and social science researchers and professors.

What kind of nation imprisons children who come to its borders seeking refuge?

3) We don’t know what the Department of Homeland Security is going to do.

It may appeal, and it might ask for a stay. It might comply with the letter of the court’s order, by setting bonds for the women, but not the spirit of the order, by setting them at high amounts. We must vigorously oppose family detention in order to make sure that the decision in R.I.L.-R. versus Jeh Johnson is effective.

4) Wealthy and powerful corporations have a huge financial interest in not only keeping, but also expanding family detention.

GEO, the Corrections Corporation of America (CCA), LCS Corrections, Inc., and other private prisons companies, profit by incarceration of immigrants and refugees. Peaceful immigrants and refugees, and mothers and children, are easy to detain. They pose no danger to anyone and do not need intense security. Human beings, for private prison corporations, are a cheap and very profitable “crop.” These corporations will not simply let the idea of family detentions fade away because one judge has expressed its displeasure. We do not have the resources of the worldwide private prison company GEO to lobby Congress and powerful leaders in the executive branch to set minimum bed counts, so we are going to have to work much harder than they do to end this injustice.

5) San Antonio is in the belly of this beast.

Dilley, which will soon house the largest family detention center in the world, and Karnes, are in our backyard. Hutto, in Central Texas, was the site of family detention that we thought had been stopped five years ago. San Antonio must be the center of resistance to the practice of incarcerating peaceful, harmless, refugees and immigrants — mothers and children – for private profit. We look back in shame at Japanese internment, as the world now looks on, aghast, at our current treatment of Central American refugees. It is up to us to speak out against, and STOP, once and for all, family detention.

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