In the last week of July 2015, I had the privilege of volunteering with the CARA Family Detention Pro Bono Project at the Southwest Family Detention Center in Dilley, Texas. CARA is a highly dedicated coalition of attorneys and non-attorney volunteers dedicated to providing legal and advocacy services to the women and children detainees in Dilley and to ending family detention.   As a consequence of my participation as an attorney volunteer, I observed first hand the psychological violence that U.S. family detention policy continues to inflict on Central American refugee women and children. I also met a lot of inspiring and dedicated volunteers and the experience was one of the most meaningful ones I have had as an attorney.

In two scathing orders, a federal judge has declared the Obama administration’s policy of detaining minors to be in violation of a class action settlement agreement reached in 1997 and therefore illegal.[1] And yet, the administration continues to aggressively pursue family detention based on frivolous legal theories that barely pass the laugh test.   The administration’s family detention policy becomes even more grotesque if one considers the enormous profits Correction Corporation of America (the for-profit private prison contractor employed by the Federal government to house the women and children at Dilley) makes off of the human suffering perpetuated at the internment camp it euphemistically refers to as a “family detention center.”[2]

The overwhelming majority of the women and children I represented in bond proceedings were from Honduras, El Salvador and Guatemala. Nearly all were under 30 and some were as young as 18. All were jailed with their children. Most were fleeing unspeakable violence at the hands of gangs, drug traffickers, and in numerous instances, domestic violence, not to mention extreme poverty. And of course, all of the women endured enormous hardships in traveling from their countries through Mexico before ultimately arriving in the United States.   Many of the kids I encountered were sick with colds, earaches and coughs and their mothers frequently complained of inadequate or virtually non-existent medical care at the facility.

A palpable sense of lawlessness pervades the detention facility in Dilley. During the week I was there, ICE officers summoned women detainees (nearly all of whom had been represented by CARA attorneys) to a court room (outside the presence of counsel) in an effort to force them (through misinformation and coercion) to forgo their right to seek a monetary bond and instead agree to be released with an ankle bracelet – an embarrassing and stigmatizing apparatus that although allows a detainee to be released without putting up any money nevertheless requires periodic reporting in person to ICE for potentially the entire duration of the woman’s court proceedings, which once released from custody, could amount to as long as five years. Naturally, none of this was explained to the women.   And the use of the courtroom by ICE for this purpose (aside from violating the women’s right to counsel) caused confusion and disorientation as many detainees mistakenly believed that they were attending a court hearing, when in fact they were not.

A particularly zealous CARA attorney and colleague of mine learned that one of his clients had been summoned to one of these meetings after a Judge had ordered her released from custody subject to a monetary bond and was erroneously informed by ICE at this gathering that she must accept release with an ankle apparatus.   So the attorney raised hell with ICE and then filed a motion with the Immigration Court seeking redress for the numerous violations incurred by ICE as result of this practice. By the end of the week, he was forcibly removed from facility without explanation.

Notwithstanding the pathetic and disingenuous arguments of the Obama administration, family detention cannot be justified either morally or legally.   And it is particularly troubling that it continues despite its blatant illegality and in the absence of any mass protest in this country. Hopefully coverage of the Syrian refugee problem will spark a renewed emphasis and comparable expression of compassion for the women and children seeking refuge at our own southern border.

[1] See Cindy Carcamo, “Judge Orders Prompt Release Of Immigrant Children From Detention,” Los Angeles Times, August 22, 2015, http://www.latimes.com/nation/la-na-family-detention-children-20150821-story.html

[2] See Betsy Woodruff, “Prison Gets Rich Locking Up Preschoolers,” The Daily Beast, September 8, 2015, http://www.thedailybeast.com/articles/2015/09/08/america-s-most-lucrative-preschooler-prison.html; Aseem Mehta, “A Jail For Babies: Absurdity and Abuse At The American Border,” Fusion, July 22, 2015, http://fusion.net/story/170590/a-jail-for-babies-absurdity-and-abuse-at-the-american-border/

Given the definition set forth above, there are several things to keep in mind in regards to asylum claims:

1. The fact that there is a lot of violence in one’s country does not by itself qualify one for asylum. The law does not protect every type of fear that one may have of returning to one’s native country. Again, the fear of harm must be “on account of” one of the specified grounds set forth in the statute, such as race, religion, nationality, political opinion or membership in a particular social group.[5] Generalized conditions of violence will not suffice.
2. The harm must rise to the level of persecution. Persecution generally does not mean discrimination, economic or emotional hardship. So the fact that you have no family in your native country, would have a hard time finding a job, and would miss your family here in the U.S. if deported (while relevant for some other immigration forms of relief) will not qualify you for asylum.
3. The harm feared must be at the hands of the government or someone the government is unwilling or unable to control.   Fear of harm related to private actors is not sufficient unless you can show that the government is unwilling or unable to protect you from private individuals.
4. A showing of past persecution establishes a rebuttable presumption that an asylum applicant has a well-founded fear of future persecution. Upon a showing of past persecution, the burden shifts to the government to demonstrate that conditions in the applicant’s country have changed to such an extent that the fear of persecution is no longer well founded.[6] Therefore, it is crucial that applicants who have suffered harm in their countries prior to arriving in the U.S. submit as much corroborating evidence as possible.
5. Even if you do not qualify for asylum, other related forms of protection might be available depending on the facts of your case. For example, relief under the Convention Against Torture – which requires an applicant to demonstrate that it is more likely than not that he or she will be tortured by or with the acquiescence of the government if deported – does not require the applicant to demonstrate that such torture is on account of a specified ground.[7] The fear of torture can be on account of any reason so long as it would be carried out by or with the acquiescence of the government.   However, protection under the Torture Convention (unlike asylum) does not lead to lawful permanent resident status; rather applicants granted this form of protection are permitted to remain in the U.S. and work, so long as the conditions in their countries giving rise to torture remain the same.
6. You should consult a licensed attorney before deciding whether or not to apply, especially if you are not in removal proceedings as the filing of an asylum application with the Department of Homeland Security always carries the risk that the application will be referred to an Immigration Judge.   An experienced immigration attorney can assess your chances of qualifying for asylum, assist you with the preparation of the application and supporting evidence, and represent you at the asylum interview (or court hearing). Further, like immigration law in general, asylum is a very intricate and constantly evolving area of practice.  Applicants who fear returning to their countries because of reasons unrelated to political opinion, race, religion or nationality often attempt to qualify by asserting that they are members of a “particular social group” as defined under immigration law. The law in regards to the definition of “particular social group” is a heavily litigated area of immigration law and a thorough discussion of this aspect of asylum is well beyond the scope of this article. But generally, to qualify for asylum based on membership in a particular social group, an applicant must demonstrate (in addition to all the other statutory requirements) that the group is (1) defined by an immutable characteristic (i.e. one a person “cannot change, or should not be required to change.[8]”); (2) is socially distinct (in that the society in question actually perceives the social group as such) and (3) sufficiently particular (in that the group’s boundaries can be delimited and verified by the society in question).[9]  As you can imagine, crafting a successful asylum claim requires a substantial amount of research and preparation.   If you fear returning to your country because you might be subjected to persecution or torture, call our office now and so we can educate you about this process and help you make an informed decision as to how to proceed with your claim.

PLEASE NOTE: The information contained in this article is not intended to constitute legal advice for any individual case or situation. This information is general and should not be relied on for any specific case. In order to obtain advice concerning your specific situation, contact an experienced immigration attorney for a personal consultation.

[1] INA §§101(a)(42)(A).  Madrigal v. Holder, 716 F.3d 499, 506-07 (9th Cir. 2013).

[2] See id.  

[3] INA §208(a)(2)(B), (D).

[4] INA §209.

[5] See INS v. Elias-Zacarias, 502 U.S. 478 (1992).

[6] 8 C.F.R. §208.13(b)(1)(i)(A).

[7] See 8 C.F.R. §§208.16 to 208.18.

[8] Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985).

[9] See Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).