Commentary

10.19.17

The Right to Asylum: Detention and Legal Counsel

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When we think about the detention, what first comes to mind is that it is a form of punishment. Punishment for a misdemeanor, felony, or for any ‘wrongdoing’ that requires isolation from the society or serves as a lesson – that through incarceration the individual is supposed to rehabilitate, and refrain from committing a violation of the law again. So, why are people escaping persecution being placed in detention? For what reason are those, who seek relief from torture, war, or gang violence being detained? This is not only inhumane but against legal standards, both domestic and international. In 2016, there were 352,000 people detained by the ICE, at least 34,000 on any given day, to meet the lock-up quotas set by Congress.

Two years ago, Alan Kurdi’s motionless body found on the Turkish shore moved social media followers worldwide, but what is mostly an ‘underreported’ story is that there are thousands of Alans being incarcerated daily. When I was a teenager, I was stunned to see my peers shackled in front of an immigration judge in El Paso, Texas during their trial. What a discrepancy in treatment – we were all migrants, yet I was on a high school trip while they were about to be deported into an unknown fate of a gang violence…

“Certainly the detention, the isolation, the experience of being incarcerated and being treated as a criminal even when you have zero criminal history, and you really have not experienced that type of enclosure and supervision, every movement being regulated and overseen- it impacts people.”

The dehumanization that happens within the asylum and migration system in regards to minors violates multiple international laws, including The Convention Against Torture, or The Convention on The Rights of The Child (CRC) which the United States of America unfortunately has never ratified despite the promises of some politicians. CRC states in Art. 37 that: no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. Moreover, the United Nations Committee on the Rights of the Child urges that the detention of children on the basis of their immigration status should be expeditiously and completely ceased.

When volunteering in Poland, going to adult detention facilities was already a painful experience. I cannot even imagine how terrible this would be for someone six years old, who comes from the hell of persecution right into the hell of detention. What marks will this form of ‘reception’ leave on his or her psyche? That is if they have any future at all. Oftentimes the danger of being deported back to a violent area can lead to death as many instances have already shown. Some of these children are even born while in detention, others do not know any other reality than behind bars. Pediatricians righteously state that the detention of children is a form of a child abuse.

There has to be a simple message given to our representatives: Detention centers for children do not meet any standards of decency and they should be closed in their current form!

The Federal Government in 2014, following the stark increase of asylum seekers coming to the U.S., openly stated that detention of children and women is “an aggressive deterrence strategy,” and was later found illegal by a Federal Court in Washington D.C.

The ACLU has not separated itself from this issue. Our lawyers have been litigating the Jennings v. Rodriguez case at the Supreme Court in regards to detention of those who are in immigration prisons across the U.S. We fight to end imprisonment of people without the due process of a hearing. This year we also supported four-year old Carlos and sixteen-year old Michael (names were changed for privacy reasons) in their release from the immigration detention center in Berks County, P.A., after Carlos and Michael were held in detention for almost two years. Yet, there is still so much to be done.

To understand the nature of these issues I interviewed a forerunner of the Immigration & Human Rights Clinic at the Akron University School of Law – Professor Elizabeth Knowles*:

  • Q: The detention of children is a ‘big problem’ surrounding asylum seekers in the United States – can you tell us more about that?
  • A: These places are operating using childcare licenses as a guise, as if they were day care centers, in fact we call them “baby jails” because this what they are. The conditions of these jails are less than ideal. When I was there, the children had been running around sick and they had mainly just come from ICE temporary holding facilities, which had even worse conditions. They are actually called “neveras y perreras” – “freezers and dog kennels” – so just from those two words we get the image of being cold, overcrowding, unsanitary conditions, and that exactly what they suffer from. When I was in Dilley, Texas – “South Texas Family Residential Center” apart from interviewing and figuring what the claims for asylum were, we were also taking statements on the conditions asylum seekers were in. There were some instances that a child had wet her/himself and they were not given anything dry to wear. Mothers told us that they were fighting for whose child would sleep behind the toilet base because it was the warmest spot on a floor. These children come from terrible situations they could no longer withstand, and this is how they were greeted in our country where they expect to be protected.
  • Q: Many asylum seekers also have various health problems, including PTSD – can you tell us more about it?
  • A: Some of the clients that we had in San Diego had severe mental illnesses. Certainly the detention, the isolation, the experience of being incarcerated and being treated as a criminal even when you have zero criminal history and you really have not experienced that type of enclosure and supervision, every movement being regulated and overseen – that impacts people. It would impact the ‘healthy’ individual who is not suffering from any mental illnesses, so it severely impacts individuals who suffer from mental illness and who suffer from trauma – it causes them to withdraw, it causes them to act out, and to not want to participate in their formal legal proceedings – it is very detrimental. The staff at the CoreCivic or GEO are not given extensive training on how to work with individuals who suffer from trauma. So there is no professionally trained personnel who are taking care of the psychological needs of the folks that are detained there and are awaiting the outcome of their removal proceedings. What is more, not every facility is equipped equally. Let us take for example the Otay Mesa facility in California where I previously worked and provided services. They had a mental health team on site, mostly because it was a designated ‘hub’ for individuals with mental illnesses to be detained there. But at the Northeast Ohio Correctional Center in Youngstown, Ohio owned and operated by CoreCivic there might be individuals who have mental illness. But, there are no dedicated mental health staff, psychologists, or licensed social workers on site to provide care to them. It is part of the standards that if somebody has a medical emergency, and it would include mental health emergency, that they must be provided transportation to a nearby facility. But that it is no guarantee that a detainee’s medical request will be answered in a timely fashion..
  • Q: According to the 2015 study, published by the University of Pennsylvania Law Review, only 14 percent of detained immigrants including asylum seekers or unaccompanied children can count on legal representation – this statistic is simply horrifying, especially when compared to another fact: those who have legal assistance are 10-times more likely to win their cases…
  • A: Non-citizens have a right to a lawyer, but not to a lawyer on governmental expense. Therefore they must pay for their own legal counsel if they obtain one. There are limited pro bono representation opportunities available. The nonprofits that can provide representation are so saturated with pro bono cases, that the demand far outweighs the supply. Honestly, so many of the nonprofits that serve the non-citizen community do not have funding to do the direct representation. They do not have enough funding to go to detention centers and help individuals, so they rely on attorneys to volunteer their time and take these cases.Congress made it clear that they would appoint counsel for non-citizens in one narrow class, and, that class constitutes individuals who are mentally incompetent and who are already detained. These individuals must be in the Ninth Circuit when this determination is made. What immediately comes to mind is that there is another class of individuals that should be given appointed council and they would be children in criminal proceedings. Children three and four years old are being asked questions by the immigration judge, and they even do not even know their ABCs yet. So it is unconscionable that we expect a child to put forth a legitimate legal defense, and there is a trained governmental attorney sitting out there questioning them. It is a very sad state of affairs. It seems like there should be something in place for them. Some states have started to initiate programs where they provide council for individuals in removal proceedings. But not every state would be on board with that, and the federal government is far, far, far away from appointing council across the board for non-citizens. So, I believe if appointed council for non-citizens is going to expand it is going to expand one narrow class at a time. And, I think that the next group of individuals that should be afforded council are children in removal proceedings.
  • Q: What would be the perfect balance between keeping secure borders and securing the right to asylum??
  • A: The individuals who come in, come to our borders seeking protection and are immediately detained. This model is wrong. We say on paper that this is a civil detention model, but there is no civil detention model?! Detention is based off of the criminal detention model. We do not have any civil model to base it on. And that is why, it does not look civil. You walk into immigration detention facility, they are wearing the same suits. There are behind the same bars. They are eating the same food. They are being treated with the same disrespect as anybody who is there for criminal matter. You are not going to say that this one facility houses criminals who are being overseen by U.S. Marshals Service, and then that other half of people are being treated differently because they are ‘civil detainees’. That is not happening. It is fiction.
    When I go to these facilities and I speak with them they are concerned how the staff addresses them. The language that is used can really impair somebody’s psyche. They refer to them as “bodies. If you go there and you need to visit your client during lunch they would say that: “The bodies are feeding right now and there is no movement.” That is the type of language that we use when we talk about the animals that we do not care about. There needs to be a paradigm shift in the way we view individuals who are here from a foreign country and seeking protection. Are we going to provide protection and do it with dignity? Are we going to allow them to go through the process feeling that they have all of their humanity intact, or are we not? Or will we scare them before they can even voluntarily partake in the process, and encourage them to flee before they can even benefit from their right to a hearing?

DISCLAIMER — The views expressed in this article are the author’s own and do not necessarily reflect the views of the ACLU.

Prof. Elizabeth Knowles is an Assistant Clinical Professor of Law at the University of Akron School of Law which she joined in 2016. At Akron Law, she supervises the Immigration & Human Rights Law Clinic and teaches asylum law. Before coming to Akron, she served as the Executive Director of the American Bar Association’s Immigration Justice Project (IJP). She is a member of the California State Bar, the American Immigration Lawyers Association, and the American Constitution Society (more information about prof. Knowles can be accessed over here: https://goo.gl/NZ1vJB).

* Lukasz W. Niparko LL.M., is a Humanity In Action Fellow (HIA) at the ACLU of Ohio. He graduated from the European University Viadrina with a degree in international human rights and humanitarian law. Prior to coming to the ACLU, Lukasz has served with various NGOs such as The Association for Legal Intervention, The Helsinki Foundation for Human Rights, and Polish Humanitarian Action.


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