The federal government has just announced its latest salvo in its ongoing war on asylum seekers, proposing rules that would allow children to be held in immigration detention for prolonged periods of time. The rules would undermine our legal obligations to refugees and strike a particularly vulnerable population: asylum-seeking children.
To provide context, the U.S. is a party to the international Refugee Treaty’s 1967 Protocol. The U.S. Constitution ensures ratified treaties are “the supreme law of the land.” The obligation to protect and process refugees without imposing punitive measures has also been incorporated in our statutes, specifically, the Refugee Act of 1980, as well as in federal regulations and a constellation of administrative memoranda, policies and guidance. Further, the Supreme Court has ruled that all persons on U.S. soil enjoy legal protections and, more to the point, the due process of law.
And in regard to children, a prior judicial order known as the Flores court settlement places limits on the detention of children and ensures that the conditions of detention are suitable. The administration claims it can sidestep the settlement’s restrictions on prolonged detention while still abiding by the broader standards contained in the settlement. In light of the recent treatment of asylum seekers in South Texas, I am not persuaded.
I have seen alarming conduct in the Port Isabel Detention Center, where my colleagues and I represent more than a dozen detained asylum seekers. After the children of those clients were forcibly taken, mostly under false pretense, the clients were criminally prosecuted and incarcerated in literal cages known to the detainees as “perreras,” or dog kennels. They suffered prolonged immigration detention, often with little or no information about the condition of their children. On several occasions, officials attempted to coerce them to agree to deportation by dangling possible reunification with their children. I know of asylum seekers who were induced to sign documents that waived a further review of a negative decision in their cases. One of our clients was told to sign such a document, where the “no review” box on the form had already been ticked off, presumably by an immigration officer. Notably, this form was only in English, a language our client doesn’t speak or read.
Immigration hearings, which require a meaningful review by an immigration judge, are too often truncated and lack essential participation by legal counsel. In one hearing, I attempted to counsel my client when it became clear she did not understand a question posed by the judge, who quickly cut me off: “No, you may not, counselor,” he said. The immigration judge then asked my client if she had anything to add to her explanation of the facts supporting her asylum request. Still traumatized by her recent treatment, she could say little, provoking the judge to quickly move to affirm the order of removal to Honduras. The entire hearing, a potential life-or-death proposition for my client, lasted fewer than five minutes.
This record argues strongly against giving the government latitude to detain children indefinitely. Recall for a minute the conditions that fuel the flight of these children and their parents — poverty, lawlessness, violence, persecution and the universal desire for human security. Still, we subvert asylum claims and asylum law — whether owing to scarcity of resources, a lack of proper training or, far more concerning, a deliberate, even strategic, effort to deter others who seek the protection of our asylum laws. It is far easier to incarcerate, coerce and curtail access to meaningful proceedings than to allow aliens to claim the benefit and protection of law. Alienating law, however, is a costly project.
The public portrayal of all asylum seekers as a security threat is our way to legitimize snatching their children, manipulating them into renouncing rights and abridging or suspending fundamental legal protections. These purported dangers are unsubstantiated. The self-inflicted wounds to our legal institutions, however, are real, and multiply every day in detention centers, courtrooms and border crossings across the country. We can only hope that our legal institutions can withstand the self-assault, while regaining a rightful vision of purpose, role and function.
Disclosure: Haynes and Boone has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.