Tuesday, November 1, 2016

What The Rise of Immigrant Detention Means For Some of the Most Vulnerable People Seeking Refuge On Our Border

Posted By on Tue, Nov 1, 2016 at 6:00 AM

click to enlarge ANDREW J. NILSEN
  • Andrew J. Nilsen

Mayra was six months pregnant when she was raped and beaten so badly she had to be hospitalized out of fear she’d miscarry.

A violent partner at home wasn’t the only reason she wanted to flee El Salvador. Mayra (not her real name) finally left after gang members searching for the father of one of her children broke into her house, tore through the inside and destroyed most of her belongings. Many of her family members had already been murdered by the gang. “I am afraid that these same gang members might come back to kill me,” Mayra would later say in an immigration court filing.

In 2014, Mayra and her two kids turned themselves in at the U.S. border, part of more than 130,000 families and unaccompanied children from Central America who arrived at the U.S.-Mexico border that year, the vast majority of whom came through Texas. Mayra and her children were released with an ankle monitor and allowed to travel to Atlanta to stay with her mother while her asylum case was pending. Soon enough, however, they were forced back to South Texas.

In January 2016, federal immigration officials rang in the New Year with raids across the country, scooping up asylum-seeking families like Mayra’s who they claimed had exhausted their cases in immigration court and lost. They were shipped to a detention camp run by a private prison company situated in the middle-of-nowhere South Texas town of Dilley, about an hour’s drive from San Antonio.

Immigration attorneys and advocates fighting for the rights of asylum seekers say the raids and the detention center those families landed in are an eerie sign of the sustained federal push to detain and ultimately deport some of the most vulnerable people seeking refuge on the Texas-Mexico border. While the detention and deportation of immigrants has reached record heights under the Obama Administration, all signs point to asylum seekers making up an even greater slice of the pie in recent years. And as the feds seek to stem the tide of what has at varying points been called a “flood,” “wave” or “surge” of families fleeing violence that has convulsed Central America, advocates fear that immigration officials have sought to quickly deport an increasing amount of them without so much as a review of their claims by a judge or even an asylum officer.

Many of them end up in places like the South Texas Family Residential Center in Dilley, a complex run by the Corrections Corporation of America, one the private prison corporations that have seen profits soar with the rise of immigrant detention under the Obama Administration. Detainees inside such facilities have long claimed they suffer from medical neglect, mistreatment from guards, and prison-like conditions that make it difficult for them to even communicate with attorneys who are fighting to keep them from being deported back to what are often very dangerous situations.

None of this criticism should be news to the federal government. In fact, so-called family detention centers like the one in Dilley have become so controversial that last year the U.S. Department of Homeland Security commissioned an independent advisory committee to conduct a top-down review of the practice. That committee’s overarching recommendation, released in a preliminary report in late September, was that the government immediately put an end to it. In its report, the committee also writes that immigration officials ultimately disregarded many of their recommendations for how to fix a litany of problems with the larger immigrant detention system and even rebuffed several of their requests for basic information. U.S. Immigration and Customs Enforcement officials, according to the committee, said that "decisions to detain, length of detention, conditions of release, and related questions are 'outside the scope' of our mandate." Judging from its sharply critical report, the committee clearly disagreed.

Meanwhile, the feds this year have sought to continue the practice of detaining asylum-seeking families, shopping – so far, unsuccessfully – for a new location in South Texas for yet another facility that would be run by a private prison contractor. Which is all the more notable when you consider the federal prison system this year announced that it would phase out the use of private prisons after concluding they aren’t as safe or even as cost-effective as government-run facilities.

While DHS says it’s studying whether to continue leaning on for-profit prison contractors to house immigrants, it’s unclear whether immigration officials even really consider that to be a viable option at this point. Right now, it’s estimated that roughly 70 percent of immigrants in detention are housed by for-profit prison companies like the one that runs Dilley, which late last month renewed its contract with the feds to run the center through 2021.

Immigration attorneys insist that instead of ensuring that families with legitimate asylum claims are caught and carefully protected by the system, the feds have instead prioritized those families’ detention and deportation in recent years. Families like Mayra’s have no right to court-appointed attorneys, meaning they must either be lucky enough to score pro-bono help, scrounge up enough money to pay for a lawyer (and somehow manage to avoid what can be shoddy work from lawyers unqualified to present complicated asylum claims in court), or they must navigate the country’s labyrinthine immigration system on their own.

Denise Gilman, who directs the University of Texas’ immigration law clinic, was one of the attorneys who visited the women and children caught up in the raids earlier this year. She insists many were never able to fully air their claims for asylum before being thrown into the deportation machine – something underscored by the fact that many of them received 11th-hour reprieves from judges who stopped their deportation after volunteer attorneys managed to quickly file appeals on their behalf.

“When it comes to how we treat asylum seekers, we’re moving in the wrong direction,” Gilman says.

In court filings, Mayra claimed the lawyer she hired never even asked about her abuser and says she never got to fully explain to a judge why she fled her country. Despite that, immigration officials put her and her two children on a plane and were about to transport them back to the murder capital of the world when a last-minute court order stopped it.

If you believe the attorneys handling these cases, Mayra might actually have been one of the lucky ones.  

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Elsa first arrived at the Texas-Mexico border in February 2015, fleeing a violent partner in Guatemala. She spoke an indigenous Mayan language, Mam, and could barely understand the U.S. Border Patrol agents who she says barked orders as they put her into a kind of holding pen that migrants often call a hielera or perrera, Spanish for icebox or kennel. 

The American immigration system outlines a specific pathway for asylum seekers like Elsa (not her real name). First, they have to convince federal agents or border guards to send them to an asylum officer who then conducts what’s called a “credible fear interview.” If they can demonstrate a possible basis for asylum, they’re then bounced to an immigration judge who holds a “merits hearing” to evaluate their claims, where they can present evidence to bolster their case.

Elsa never made it that far. She says she tried to tell a border guard that returning home could be a death sentence. “He didn’t give me an opportunity to explain,” she says. Instead, guards shackled her arms and legs and led her onto a plane, which carried her back to Guatemala.

Congress created the process of so-called “expedited removal” in the mid-1990s with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act, giving immigration officers the authority to remove certain immigrants without virtually any oversight from an asylum official or immigration judge. While the practice has been controversial since its inception, federal immigration authorities have over the years expanded the policy to cover more and more categories of immigrants.

According to one recent federal review, such rapid-fire deportations appear to have increased dramatically over the past decade. While in 1998 there were some 23,000 migrants deported via expedited removal, by 2013 that number had skyrocketed to nearly 200,000 – almost all of them from Mexico, Guatemala, Honduras and El Salvador. In 2014, U.S. Department of Homeland Security Secretary Jeh Johnson called expedited removal part of his department’s “aggressive deterrence strategy” to curb the flow of Central American families seeking asylum in the country.

That’s despite immigration attorneys and advocates who caution that such a strategy is both inhumane and doesn’t really work. “These people know the risks,” says Elissa Steglich, an attorney who works with UT’s immigration law clinic. “The dangers that they face in their home countries are higher than the risk of coming to the United States and all that that entails.” She says the practice of immediate deportation is particularly troubling when you consider recent studies showing that about 90 percent of migrants coming from the so-called “Northern Triangle” countries of El Salvador, Guatemala and Honduras pass their initial screenings with an asylum officer – if they get one, that is.

Along with the rise of near-immediate deportation, it appears an increasing amount of immigrants thrown into detention are likewise pursuing asylum claims. Carl Takei, a staff attorney with the ACLU’s National Prison Project, says that in 2014, U.S. Immigration and Customs Enforcement data shows that officials detained some 44,000 asylum seekers – or, according to his analysis, about 8,170 at any given time. He says that by early this year, there were close to 15,000 asylum seekers in detention on any given day. He suspects that that number is now probably closer to 20,000.

Prior to 2014, immigration officials typically let asylum seekers, particularly those with children, live with family members while their cases played out in immigration court, making it easier for them to find competent attorneys and gather evidence to support their claims. Takei says he worries about the increased use of detention for asylum seekers because “it makes it harder for them to succeed with their cases. … They’re more likely to lose when they’re in detention. It’s that simple.”

In mid-October, four representatives from the United Nations investigating what they called “arbitrary detention” in the United States held a meeting on San Antonio’s West Side to hear from immigration attorneys and advocates before touring the sprawling system of immigration lockups in South Texas. In a preliminary report they issued several days later, those investigators said they were troubled that the detention and quick deportation of asylum seekers “appears to be implemented as a deterrent to immigration and the continuation of legitimate immigration claims.”

In a statement this week, an ICE spokeswoman said the agency “respectfully disagrees” with the UN investigators’ “characterizations of our detention operations.”

Elsa told those UN investigators how she again fled for the Texas border earlier this year because the violence at home hadn’t subsided – only this time, she says, she landed in federal criminal court for the crime of re-entering the country after having been deported.

Elsa says she was taken before a federal court judge with a group of other women facing the same charge when someone involved with the proceedings – she didn’t know whether it was a lawyer or a guard – told her to just plead guilty so she could avoid any more time in lockup. It was only when she was finally able to tell a judge that she was afraid to be sent back to Guatemala that Elsa was finally transferred to asylum officials for an interview. Steglich, whose clinic is representing Elsa, says she’s troubled by the fact that she had to travel to the border, get deported, come back, and face federal criminal prosecution before she could even make it to an asylum hearing.

Even after she passed her initial asylum screening, Elsa wasn’t let out of immigration lockup. Instead, ICE detained her at the T. Don Hutto detention center in Central Texas, a facility run by the for-profit prison company Corrections Corporation of America, where Elsa remained for several more months. She says one CCA guard kept asking her why she didn’t just go back home. She told him, “I don’t want my children to watch me die.”

Then this summer, for reasons that still aren’t clear, Elsa was again transferred, this time to another CCA facility in Laredo where she encountered a whole new set of problems.

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Attorneys and advocates who represent immigrants held in CCA’s Laredo Processing Center say it basically functions like a prison. Heavy metal doors only open when a guard unlocks them from a remote office. There are frequent inmate head-counts and strictly scheduled meal times that interrupt what few face-to-face meetings they can get with attorneys. There’s a small outside recreation area boxed in by cinderblock walls. Attorneys say detainees only get about 30 minutes of recreation time each day.

Some don’t even bother going outside, saying it’s not worth the invasive pat-downs by guards. “They’d look inside our underwear whenever we want to go out,” says Elsa, who was transferred to the facility this summer.

Such complaints aren’t uncommon, according to Luis Ortiz, a student with UT’s immigration law clinic who helps represent women detained in the facility. Unlike in other detention centers where migrants are allowed to wear their own clothes, in Laredo they’re forced to wear prison-like uniforms. Ortiz says the women there only get two pairs of underwear per week, which they claim are sometimes stained and tattered. A group of women transferred to the facility this summer complained of vaginal infections soon after they arrived, blaming the used underwear.

Ortiz says the women sleep in pods of about 70 people and all share a toilet. This summer, after one of those toilets broke, some of the women claimed they didn’t have bathroom access for nearly 48 hours and suffered from urinary tract infections as a result. At one point this summer, another broken toilet started spewing black sewage onto the floor of a unit, Ortiz says. Some of the women complained of fungal infections on their feet after having to walk through wastewater for two days, he claims.

In fact, it was the detainees themselves who helped clean up the sewage, working for $1 per shift so they could have money in their commissary account to buy things like bottled water and cups of ramen noodles. Ahead of the UN investigators’ visit to the facility, Ortiz and his team gathered a series of letters from detainees outlining the living conditions inside. Many complained of inedible food and undrinkable, foul-smelling water. A bottle of water, they said, costs $1.34. “They have to work just to get drinkable water,” Ortiz says. One of the UN representatives at the San Antonio meeting last month seemed appalled by the notion, asking, “How is this legal?”

In one of those letters, a woman says, “It’s been three months since we arrived but it feels like three years because of the way they treat us.” Another woman wrote, “When we go out for recess, they search us and keep their shotguns trained on us.” When asked for comment, a CCA representative declined any response “in deference to our government partner.” ICE, in a statement, said it “remains committed to providing a safe and humane environment for all those in its custody.”

ICE released Elsa earlier this year for reasons they never really explained, Steglich says. When Elsa spoke with the UN investigators last month, her recommendations for how to improve the Laredo facility were simple: clean underwear, edible food, drinkable water and adequate medical care. In their report, the UN workers say they found evidence of immigrants being detained in “punitive conditions that are often indistinguishable” from those inside a prison that houses convicted criminals. They also cited “degrading conditions” and “degrading treatment by some authorities and employees at detention facilities.”

Degrading, it seems, to the point that the government’s “deterrence” strategy might actually be working. Steglich says her clinic was representing a client who fled Honduras after one of her sons was killed by a gang member. Instead of being sent to an asylum officer for an interview, she was immediately deported. The woman came back a year later when another son was shot and killed. The second time, she was able to make it to an interview with asylum officials, which she passed.

Despite having a daughter who lived in the United States and having suffered from serious medical issues (she was recovering from surgery, experienced frequent back pain and sometimes even coughed up blood, Steglich says), ICE wouldn’t release the woman. Then, earlier this year, the woman’s condition worsened when ICE transferred her to Laredo – even further isolating her from her attorneys and family members.

Even though she fled her home country to plead asylum twice, the woman eventually decided to drop her case, Steglich says. “She just couldn’t stomach those conditions,” she says. “She knew she had many more months in there, and ICE clearly wasn’t going to release her. She just couldn’t bear it.”

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Bree Bernwanger hasn’t actually seen the conditions inside most of the Dilley compound, where as many as 1,400 asylum seeking women and children are held at any given time. As managing attorney for the CARA Pro Bono Project, which tries to represent all the women and children that flow through the South Texas detention center, she’s only allowed inside the on-site trailer that officials have designated for legal visits.

Bernwanger estimates that between 150 and 200 women and children pass through that trailer on any given day to explain why they fled their countries, to prepare for credible fear interviews and to try to find any way they can to stall their deportation. She says it’s a jarring sight for the volunteer lawyers and legal aides who travel to this desolate corner of South Texas – on their own dime, many of them using what little vacation time they have – to assist with the project. Bernwanger was one of those volunteers until she moved to Dilley a few months ago.

“It’s just a sea of faces that comes through, one group after another, for about 12 grueling hours every day,” Bernwanger says. “They all desperately need help and they’re all very afraid. It’s daunting.”

The federal government’s last foray into family detention ended in 2009 when they pulled kids out of the Corrections Corporation of America’s Hutto detention center in Central Texas following a legal battle with attorneys representing families detained inside. Attorneys described conditions that violated even the feds’ own minimum standards for housing children – kids forced to wear orange jumpsuits, sleeping with the lights on and locked in cells for hours at a time, receiving up to an hour of school every day.

The feds resuscitated the practice in 2014 after large numbers of Central American women and children started showing up on the southwest border to plead asylum. ICE soon tapped CCA to build Dilley, now the country’s largest immigrant detention center, capable of holding up to 2,400 women and children. Dilley’s construction dovetailed with the feds’ “aggressive deterrence strategy” to detain and rapidly deport families in hopes of keeping others from coming in the first place. The committee appointed by the Department of Homeland Security to review its family detention practices put it this way in a recent report: “As it began scaling up the use of expedited removal for families in response to the ‘surge,’ ICE opened additional family detention facilities to hold the dramatically larger number of detained families.”

Family detention and the rapid-fire deportation of asylum seekers. One is a symptom of the other. “They wanted this place to be a deportation mill,” Bernwanger says.

On the heels of yet another federal court ruling condemning the practice last year, advocates had hoped the feds might again phase out large-scale family detention. Then the state of Texas, in a surprise move, swooped in to help out, offering to license Dilley and another privately-run family detention center in Karnes and designate them state-regulated childcare centers. Many fear state licensing could very well help the feds wiggle around the federal court ruling that had threatened to shutter the centers.

Child welfare experts across the state were flabbergasted. In a hearing before state regulators earlier this year, mental health advocates who’d toured Dilley and Karnes spoke of children losing weight, shedding hair and exhibiting symptoms of anxiety and depression in lockup. Some of the attorneys and advocates working at the sites claimed health care was so bad that some kids had to be hospitalized once they were released.

Likewise, Bernwanger says she sees an alarming number of sick children come through her trailer at Dilley. For instance, last week she encountered a 6-year-old child with leukemia who’d recently undergone chemotherapy. The attorneys argued unsuccessfully for the child’s release on humanitarian grounds because she can't get the specialized treatment she needs in Dilley. “This was an incredibly ill child,” Bernwanger says. “A child with cancer shouldn’t be detained for a single day.” Such complaints aren’t hard to find. Last year, dozens of mothers held at the South Texas detention centers filed affidavits with DHS outlining similar problems. One mother spoke of how her 4-year-old suffered from kidney problems and lost his medication on the treacherous journey north as they fled Honduras. Without his medicine, the boy started to suffer from stomach pain, fever and vomiting. The solution from medical staff at Dilley: water and Tylenol.

“It’s very rare to see a healthy child in that facility,” Bernwanger claims. “It’s heartbreaking.”

Bernwanger seems most troubled by what Dilley might signify about the federal government’s priorities when it comes to asylum seekers. Why would the government rather spend resources on immigrant detention than, say, on appointed attorneys to help shepherd people fleeing violence through a convoluted legal system? Her project has a total of four staffers – two attorneys, including herself, and two aides – none of which are paid for by the federal government. The operation would grind to a halt, she says, without the regular rounds of volunteers helping families build their asylum cases.

“It should be frightening to all of us that we don’t have a better safety net for these people,” she says.

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