A federal court has enjoined the Department of Homeland Security from detaining Central American mothers and children for the purpose of deterring future immigration. While the order in the case of RILR v. Johnson, released February 20, 2015, was somewhat overshadowed by an order from a different federal judge (whose ruling on February 16 put the administration’s plans for deferred action on hold), the opinion in RILR signals one of the most significant challenges to federal immigration detention policy, which has been largely unfettered by either legal or budgetary constraints.
The order by Judge James Boasberg, U.S. District Judge for the District of Columbia, also granted provisional class certification to Central American mothers and children who have been or will be detained in ICE family detention facilities while seeking asylum. Read more about the case at the ACLU’s Immigrant Rights Project, which is lead counsel for the case. You can hear a great 3-minute discussion of the opinion by Melissa Crow, legal director of the American Immigration Council.
Detention-as-deterrence is an affront to human rights. It violates longstanding standards against arbitrary detention by failing to afford the detained mothers and children an individual custody determination and by depriving liberty as a result of the exercise of the right to seek asylum from persecution. It is contrary to the guidance of the UN High Commissioner for Refugees, which allows for detention of asylum seekers only as a last resort. And it flies in the face of our obligations under international refugee law by deterring refugees from seeking asylum at all.
Judge Boasberg’s opinion bears close reading. One by one, the judge dismantles the stack of assumptions upon which the government has built its precarious justification for imprisoning families who have fled to this country seeking asylum.
At the outset the judge makes clear that the government’s decision to imprison arriving asylum seeker families rests not on any threat to public safety or risk of flight posed by the individual mothers and their children. Instead, U.S. immigration authorities’ decision to detain arriving families “reflects a desire to deter” the flight of others.
That the government is detaining families in order to deter asylum seekers from seeking protection has been of grave concern to The Advocates for Human Rights, as we pointed out in a statement made to the Senate Judiciary Committee earlier this year:
…[T]he Administration’s … decision to continue the detention of families fleeing to the United States in search of asylum is of grave concern. Just days before the announcement of administrative relief for undocumented Americans, the Administration reiterated its commitment to the imprisonment of families seeking asylum by confirming it plans to open the massive Dilley, Texas family detention center before the end of the year. This action not only violates the obligation to protect the family, but raises serious concerns about the rights to freedom from arbitrary detention and due process of law. The Administration’s detention of families, deliberately designed to deter asylum seekers from seeking protection, also violates our obligations under the Convention and Protocol relating to the Status of Refugees.
In his opinion, Judge Boasberg looks the Constitution directly in the face, so to speak, and finds that family detention designed to deter future migration gives the Fifth Amendment’s Due Process Clause a black eye.
Quoting Zadvydas v. Davis, the Supreme Court’s 2001 case that put an end to indefinite detention of immigrants, Judge Boasberg notes that the Court has repeatedly recognized that “[f]reedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that Clause protects.” He reminds us that “in keeping with this fundamental precept, the Zadvydas Court explained that “government detention violates [the Due Process Clause] unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” 533 U.S. at 690.
Immigration detention is civil detention, or as the judge puts it, “non-punitive in nature.” As a result, it bears few of the procedural safeguards of the criminal detention system (and many indicia that it violates international standards against arbitrary detention). There is no right to an attorney, no independent review of the decision to detain. At the same time, for those confined within the walls of the hundreds of county jails, ICE detention centers, and private prisons that hold upwards of 34,000 immigrants every day, it is without doubt a deprivation of liberty.
The Advocates submitted a laundry list of human rights violations attendant with U.S. immigration detention policies to the UN’s Human Rights Council, which will review the U.S. human rights record later this year.
Finding the detention of mothers and children to be civil, the judge poses the relevant question: “whether the Government’s justification for detention is sufficiently “special” to outweigh Plaintiffs’ protected liberty interest.” There are times, the judge notes, when the reason for detention has been sufficient justification; for instance preventing flight or protecting the community from individuals found to be especially dangerous.
But in this case, where the government seeks to use its detention authority to deter mass migration, it misses the mark. Relying the Supreme Court’s decision in Kansas v. Crane, 534 U.S. 407 (2002) the judge reminds us that when it comes to civil detention such general deterrence justifications are impermissible.
In a particularly piercing analysis, Judge Boasberg puts paid to the oft-repeated “they don’t have rights” myth relied upon by the government:
In an attempt to evade this rigorous inquiry, [the Government] note[s] that the present class is comprised of noncitizens, whose entry into this country was unlawful. It follows, they say, that “Plaintiffs have extremely limited, if any, due process rights regarding [their] custody determinations.”… The Government is mistaken.
While it is true that “certain constitutional protections are unavailable to aliens outside of our geographic border,” the Supreme Court has made clear that “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693 [further citations omitted]….It is clear, then, that they are entitled to the protection of the Due Process Clause, especially when it comes to their liberty.
The court finally deals with what has too often been a trump card when it comes to limiting the human rights of immigrants: [cue ominous music] national security.
The judge first notes that the government has “essentially conceded that the recent surge in detention during a period of mass migration is not mere happenstance, but instead reflects a desire to deter such migration. Indeed, they state that ICE officials are required to follow the binding precedent contained in Matter of D-J-, 23 I. & N. Dec. 572 (2003)…”
Matter of D-J-, issued by Attorney General John Ashcroft in April 2003, upheld the categorical detention of all Haitians attempting to seek asylum by boat. Relying on the same specious arguments that underpin the Government’s decision to imprison Central American families, the Attorney General found that mass migration was, in and of itself, a national security threat because it “heavily taxed Coast Guard capacity and capabilities.” Matter of D-J-, 23 I. & N. Dec. 572, 578.
At the time the Attorney General issued Matter of D-J-, I despaired of the blind eye turned to individual liberty – not to mention the right to seek and enjoy asylum from persecution. It’s taken over a decade to see a court not shy away from the dread specter of “national security” and instead presses for evidence that the purported national security risk is, in fact, well-founded:
Even assuming that general deterrence could, under certain circumstances, constitute a permissible justification for such detention, the Court finds the Government’s interest here particularly insubstantial. It seeks to deter future mass immigration; but to what end? It claims that such Central American immigration implicates “national security interests,” (citing D-J-) but when pressed to elaborate, the principal thrust of its explanation is economic in nature. It argues, in essence, that such migrations force ICE to “divert resources from other important security concerns” and “relocate” their employees. The Government has not, however, proffered any evidence that this reallocation of resources would leave the agency somehow short-staffed or weakened. Defendants have not conjured up the specter of an influx’s overwhelming the country’s borders or wreaking havoc in southwestern cities. The simple fact that increased immigration takes up government resources cannot necessarily make its deterrence a matter of national security, with all the attendant deference such characterization entails. (Opinion at 35-36).
Rightly, when it comes to depriving persons of their fundamental right to liberty, the judge demands more of the Government: “when its chosen vehicle [to deter mass migration] demands significant deprivation of liberty, it cannot be justified by mere lip service.”
By: Michele Garnett McKenzie, The Advocates’ director of Advocacy