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Why keeping families together in immigration detention might not be much of a solution

The government tried this in 2014. It was a disaster.

A mother and child in the Border Patrol processing center in McAllen, TX.
A mother and child in the Border Patrol processing center in McAllen, TX.
John Moore/Getty

Republicans, including Donald Trump, are proposing to solve the crisis caused by the separation of thousands of children from their parents at the US/Mexico border by trying to allow families to be detained together in the custody of the Department of Homeland Security.

That would prevent the trauma and outrage that separating families has caused. But it wouldn’t necessarily solve the problem of adequate care for children in government custody — and it could make it extremely difficult to honor due process for migrants seeking asylum.

In 2014, in response to outrage about children and families crossing into the US, the Obama administration ramped up the detention of families — spinning up ICE facilities to temporarily hold families while they were sent through the deportation process.

Lawyers described the results as a “shitshow” in which migrants with legitimate asylum claims were almost certainly being deported.

Here’s the article I wrote about it at the time. It initially ran on August 6, 2014.

Two weeks ago, the first pro bono lawyers were let in to the detention facility in Artesia, New Mexico, where Immigration and Customs Enforcement (ICE) is keeping Central American migrant families. Since then, a small group of pro bono attorneys, organized by the American Immigration Lawyers Association, has been in the detention center 12 hours a day, trying to ensure that as many immigrants as possible get legal representation in a process that's complex, fast, and difficult to understand. Because the Obama administration has been clear that it wants immigrants' cases processed as quickly as possible — and that most of them should be deported — lawyers feel it's all the more important to make sure immigrants aren't being railroaded and are given an opportunity to exercise their rights.

One of those lawyers is Laura Lichter, former president of the American Immigration Lawyers Association. Lichter describes the court process in Artesia as a "shitshow" where judges won't let lawyers say anything during hearings, detainees who clearly deserve asylum are being denied, and no one will say what the legal basis is for judges and asylum officers' decisions. Here are nine of the biggest problems with the way the government's handling migrant families in Artesia, according to Lichter's account.

(Immigration and Customs Enforcement, the Executive Office for Immigration Review, and United States Citizenship and Immigration Services did not respond to requests for comment.)

1) There's one pro bono lawyer for every 120 detainees

The pro bono lawyers currently at Artesia are attorneys from elsewhere in the country who close up their own offices for a few weeks to represent immigrants in detention. But there are only a handful of them and 627 detainees. Lichter says there's one lawyer for every 120 immigrants.

Typically, according to Lichter, each asylum case takes about 50 hours of a lawyer's time. But cases are being processed so quickly at Artesia that lawyers are lucky if they have any time at all. Judges aren't giving lawyers any more than two weeks to file an asylum claim — even though they have dozens of other immigrants they are supposed to be representing.

Furthermore, ICE, which runs the Artesia detention center, is severely restricting the amount of time lawyers can even spend with clients. Lawyers are not allowed to arrive before 7 in the morning, and they have to leave by 7 at night. That's not counting the time they spend in the van shuttle to the facility, being screened into the facility, and having their clients brought to them — a process Lichter says can take another 2 hours.

And there's no guarantee that someone will be able to see a lawyer at all. Lichter says, "We've got people walking in saying, 'What does this paper mean?' and it turns out they've got a hearing that afternoon, and they've never had a chance to talk to a lawyer."

2) Judges won't let lawyers speak during hearings

According to Lichter, immigration judges at Artesia aren't letting lawyers participate in their clients' hearings at all. "What they are routinely telling lawyers is, 'You have no role in this process. You can consult with your client, and I will in my discretion allow you to be here,'" she says. When a lawyer wants to present something as evidence, the lawyer has to hand the evidence to the immigrant, who then hands it to the judge.

3) Lawyers can't meet with their clients when they're waiting for their hearing, either

When Lichter and the other lawyers first got to Artesia, immigrants who were waiting for their court hearings were kept in the "law library" — the back room where attorneys were allowed to meet with clients. "So we were able to prep them for their hearings," says Lichter. Then, the government changed the rules. Immigrants are now held in a separate room while they're waiting for their hearings — and detention officials won't bring them to attorneys to consult beforehand. According to Lichter, they're telling lawyers, "You'll only see your client when you go to court."

4) Judges and asylum officers are denying "textbook" asylum claims

In some cases, Lichter and her colleagues have been able to look at the cases of immigrants who had already lost all their attempts to stay in the US. "We've taken several cases where, before we got there, the person had an interview, it was denied. [Then] they went in front of an immigration judge, it was denied. And then we looked at it and said, 'Are you effing kidding me?'"

One of these, Lichter says, was the case of a "gay woman from El Salvador — a textbook asylum claim." (LGBT Salvadorans have to contend with widespread discrimination, violence and persecution at the hands of locals and police officers. Last year, the Inter-American Commission on Human Rights held a special hearing on LGBT rights in El Salvador, after five individuals were murdered.)

The lawyers were "just barely" able to get the government to reopen the Salvadoran woman's case "once they figured out what was going on." When she was given a second shot at her interview with the asylum officer, she passed.

"These aren't stinky cases," she says of her clients' asylum claims. "These are people who have been the victims of severe domestic violence, trafficking, political attacks."

5) Judges won't tell anyone about the legal basis for their decisions

Immigration judges aren't part of the normal federal court system, but they still make their rulings based on precedent decisions from the Board of Immigration Appeals. But Lichter says that she's seen cases in Artesia where the immigrant's asylum claim was identical to one of the cases traditionally used as precedent for granting asylum — except that this time, the immigrant was denied.

Judges aren't telling lawyers what legal opinions they are relying on to determine whether an immigrant met the burden of proof, either. Additionally, in asylum cases, documents from the Department of State are generally used to educate judges about whether the immigrant's home country is as dangerous as he or she claims — but in Artesia, Lichter and her colleagues haven't been told what resources the judges are consulting.

6) Asylum officers are asking questions detainees can't understand

Before an immigrant seeking asylum even goes before an immigration judge, he or she has an interview with an asylum officer. The asylum officer is in charge of determining whether or not the immigrant has a credible fear of persecution if he or she returns to his or her home country. There are five asylum officers at Artesia, according to Lichter, and they're churning out about 100 cases a week.

It's hard enough to get immigrants to talk about traumatic experiences with strangers, especially when, as Lichter notes, many of them assume that everyone knows how dangerous it is in their home countries, so it isn't even something they think needs to be said. But asylum officers are supposed to get immigrants to talk about their experiences, and then figure out whether or not they're at risk of persecution. Lichter says some asylum officers instead are expecting immigrants to understand the legal terminology around asylum, asking questions like "Are you a member of a particular social group" (one of the kinds of discrimination that an asylee can claim) "and if so, what is that group?"

7) Border Patrol agents aren't telling the whole story

Asylum officers are given reports from the Border Patrol agent who first apprehended an immigrant. If that report doesn't mention that the immigrant fears persecution, the asylum officer is less likely to trust the immigrant's claim. But Lichter's clients are saying Border Patrol agents aren't asking whether they fear persecution. Instead, they're asking them if they plan to get a job while they're in the United States. If an immigrant says yes, the Border Patrol agent writes that he or she is here to work, not here to seek asylum.

8) ICE isn't letting detainees leave after they've passed their asylum screenings

According to a 2009 memo, Lichter says, ICE agents are supposed to release immigrants from detention after they've passed an asylum screening, so that they can find their own lawyer and live freely while they're pursuing their case through the courts. But ICE isn't letting anyone out of the Artesia center. Lichter says they've declared that all 627 parents and children in Artesia are a "national security risk," and therefore need to be held in detention for the weeks or months it will take to finish their case.

9) ICE tried to change the rules to keep lawyers from using computers or printers at the detention center

Lichter says that given their caseload and the amount of time it takes to get into and out of Artesia, the only way they've been able to do this work at all is that they're able to have computers and a mobile printer/copier on hand to type up notes, print out documents, and fact-check clients' claims. But on Monday, she says, the ICE officers running Artesia gave the lawyers a "new list" of prohibited items, which included cell phones, computers, printers, wi-fi, etc. Lichter said that by late Monday ICE had worked out a "compromise" with the lawyers where phones would still be prohibited but other items might be permitted. But if the change weren't reversed, she says, she'd be able to do "maybe 5 percent" of the cases she does now. That means that there would be 10 immigrants getting lawyers in all of the Artesia facility.

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