Thursday, August 20, 2015
A new report on the expansion of immigration detention released by the American Bar Association concludes that the federal government’s use of family detention violates applicable laws and human rights norms.
The report, developed by the ABA Commission on Immigration with the assistance of the law firm of O’Melveny & Myers LLP, focuses on the government's response to the 2014 influx in arrivals of Central American mothers with young children to the southwestern U.S. border. It finds that the government’s buildup of family detention centers and the practice of detaining families in jail-like settings are at odds with the presumption of liberty and impinge on the families' due process right to legal counsel.
The report urges the government and the Department of Homeland Security to anticipate and prepare for periodic increases in the migration of individuals and families seeking asylum without resorting to detention.
The report also recommends several specific reforms, including:
- releasing families held in detention facilities;
- adopting a policy of dealing with families seeking asylum within the community instead of through detention;
- employing the least restrictive means of ensuring appearance at hearings and protection of the community;
- developing standards for families and children that do not follow a penal model; and
- ensuring access to legal information and representation for all families subjected to detention at every stage of their immigration proceedings
The ABA Commission on Immigration directs the association’s efforts to ensure fair treatment and full due process rights for immigrants and refugees within the United States.
Here is the critical portion of the report's Executive Summary:
"This report concludes by urging the U.S. Government, and the Department of Homeland Security in particular, to carry out the Department’s core mission of national emergency planning and preparedness by better anticipating and equipping itself to cope with inevitable migration exigencies whenever they recur without resorting to unnecessary detention. It reminds us that detention should be imposed only as a last resort and under the least restrictive means possible, particularly for vulnerable populations such as families with children most of whom are asylum seekers.
This report recommends that the government undertake several key reforms, including the following:
1) Immediately release families held at the Berks, Dilley, and Karnes family detention facilities, cease expansion of the facilities, and do not renew their contracts for family detention;
2) Permanently abandon deterrence-based detention policies;
3) Adopt a presumption against detention and treat release into the community as the general rule, particularly in the case of families, children, and asylum seekers;
4) When release into the community alone is insufficient, employ an objective risk assessment to identify the least restrictive means of achieving the goals of ensuring appearance at hearings and protection of the community, using electronic monitoring and cash bonds only where demonstrably necessary in individual cases;
5) Establish and adhere to clear standards of care that include unique provisions for families and children that do not follow a penal model; and
6) Ensure meaningful access to legal information and representation for all families subjected to detention at every stage of their immigration proceedings."