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  • Migrant Rights and Justice

    The Detention of Immigrant Families | 2015

    A Backgrounder on Family Detention

    In 2014, years after closing public outcry forced the closing of the infamous T. Don Hutto family detention facility, the Obama Administration dramatically increased the detention of migrant families. Seeking asylum is not an illegal act, and these families should be met with protection, not punishment.

    Key Developments

    • Plaintiffs and DHS are negotiating a response to a lawsuit seeking to compel the government to enforce standards established by the 1997 Flores settlement applicable to government custody of immigrant children. In the lawsuit, DHS maintained that it does not have to comply with the Flores standards, which include a requirement that children are detained in licensed, appropriate conditions, and only in exceptional circumstances. Media reports indicated that the judge tentatively rejected the government’s arguments.
    • ICE announced “Enhanced Oversight,” but not closure, for family detention centers. In May 2015, ICE issued a press release announcing it will create an Advisory Committee, review concerns over conditions, and review cases of prolonged detention. The announcement did not include plans to reduce or end family detention.
    • Members of Congress call for an end family detention. Following DHS’s announcement, several Members of Congress publicly called to end family detention. Eleven Representatives held a press conference together with a formerly detained mother strongly denouncing the practice. Since then, 136 Representatives and subsequently 33 Senators issued letters to the Administration calling for an end to family detention practices.
    • The New York Times editorial board calls for an end to immigration detention, including family detention.
    • ICE announces it will no longer detain families for purposes of deterrence. Following a federal court’s February 2015 preliminary injunction blocking the government from detaining asylum seeking families in an effort to deter others ICE has stated it will not factor “deterrence” in its custody decisions, but the Administration has submitted a “motion to reconsider.”
    • May 2015 USCIS statistics show 88% of recently detained families were found to have a credible fear of persecution if deported. Statistics for “fear” found rates in credible and reasonable fear interviews continue to illustrate that detained families may be eligible for protection.

    Family Detention Facilities and Policies

    In May 2014, DHS had fewer than 100 family detention beds, all in its Berks County, PA family detention facility. Until summer 2014, those families seeking asylum who had ties to the community were generally released after an initial screening to determine a “credible fear” of return. In addition to the now closed Artesia, NM detention facility (operational from June – December 2014 with approximately 650 beds), family detention facilities include:

    • Karnes City, Texas (532 spaces, with expansion up to 1,100 planned in 2015)
    • Dilley, Texas (2,400 spaces)
    • Berks County, Pennsylvania (~96 spaces, to be doubled in 2015)

    In total, from 2014 to 2015, the United States will have seen a nearly 40-fold increase in family detention spaces, to roughly 3,700 spaces. From June 2014 through April 2015, over 4,800 individuals have been booked into family detention, and it costs $343 per day to detain a single child or mother.

    Who is in Family Detention?

    Based on data from pro bono attorneys and legal service providers as well as government data, we know that the vast majority of these families are women and children seeking asylum. Specifically:

    • From Jan. – March 2015, 87.9% of detained family members expressing a fear of return passed an initial “credible fear” screening, indicating they may be eligible for asylum and protection.
    • Many women and children in family detention are survivors of trauma, having fled domestic or other genderbased and sexual violence, threats or attacks by local gangs and cartels, and other severe dangers.
    • In Fiscal Year 2014, over half the children who entered family detention were six years old or younger.
    • Many families have ties to the community, pose no danger to society, and have a strong incentive to appear in court given that they have claims for relief.

    Conditions and Access to Counsel

    Reports continue to show that there is no humane way to detain families, regardless of conditions of any given facility.

    • The detrimental impact of detention on children’s development and wellbeing is well-documented and longrecognized. Some families have now been detained for over 9 months. Facilities have inadequate access to mental and medical health care.
    • Inability to access meaningful child care results in women having to testify to painful, traumatic experiences to an immigration judge in front of their children or babies in order to win bond or an asylum case.
    • Allegations of sexual assault have been made at two of the three existing facilities. A mother in the Dilley facility tried to commit suicide after learning she would remain detained.
    • Each facility is over an hour away from the nearest metropolitan area. Due to the enormous additional caseload family detention has created in Texas, legal services organizations and lawyers in the San Antonio area are overwhelmed and completely unable to meet the legal needs of those in detention.

    Alternatives to Detention

    The expansion of family detention is especially inappropriate given that community-based and other monitoring measures exist where appropriate and needed. Alternatives, especially community-based support programs, not only facilitate release to ease the psycho-social impact of detention on a family, but also can assist with connecting families to much needed legal counsel or other social services. However, it is important that these measures are used in place of current detention capacity, NOT in addition to current detention capacity. Existing alternatives may cost anywhere from 70 cents to $17 per day and for years have demonstrated high rates of appearance and compliance.

    Recommendations on Family Detention

    End Family Detention and Keep Families Together

    The Administration should reverse course and end the practice of detaining mothers with children. Evidence has overwhelmingly shown that there is no humane way to detain families. DHS should also not separate families at the border but release parents with their children to sponsors or community-based case management programs.

    Invest in Alternatives to Detention (ATDs) in Place of Detention

    Congress and the Administration should turn to cost-effective community support programs and other measures to support compliance with removal proceedings. These programs should be used instead of – rather than in addition to – existing family detention.

    Fund and Facilitate Access to Counsel and Due Process

    Congress should continue to fund legal orientation programs and fund life-saving government-appointed counsel for indigent detained families. Many families are eligible for asylum or other protections based on having survived crime, trafficking, or domestic violence, but these legal protections are inaccessible without legal representation.

    How Can Members of Congress Help?

    1. Call on DHS and the Administration to end family detention.
    2. Make floor speeches and issue statements opposing family detention.
    3. Visit family detention facilities. Karnes and Dilley are within driving distance of San Antonio, TX. Berks Co., PA is approx. 3 hours from Washington.
    4. Oppose funding for family detention in FY 2016 DHS appropriations bills.
    5. Support and co-sponsor legislation or sign-on letters that seek to end family detention.

    For more information, please see:

    Contact: Joanne Lin, ACLU, jlin@aclu.org; Karen Lucas, AILA, klucas@aila.org; Brittney Nystrom, LIRS, bnystrom@lirs.org; Royce Bernstein Murray, NIJC rmurray@heartlandalliance.org; Katharina Obser, WRC, katharinao@wrcommission.org; Mary Small, DWN, msmall@detentionwatchnetwork.org;

    • Modified: Tuesday, November 17, 2015
    • Published: