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Obama Administration Shamefully Attempts to Scuttle Court Order Against Immigrant Family Detention

On Thursday, President Barack Obama’s administration requested that a federal court reverse a July 24 order which prohibited the detention of mothers and children who fled violence in countries in Central America.

In a filing submitted in the United States District Court for the Central District of California, the Justice Department argues the administration may have violated the “Flores agreement,” in force since 1997, which is supposed to protect the rights of immigrant children. However, any violations do not matter anymore because Homeland Security and Immigration Customs and Enforcement (ICE) changed the policies at issue in this lawsuit challenging immigrant family detention.

“Even assuming arguendo that DHS’s previous policies and practices violated the agreement and could be enjoined, the court should not prohibit the current policies and practices that implement removal authorities and detention mandates in the [Immigration and Nationality Act],” and “were never challenged by plaintiffs in this enforcement action (or at any time in the last 15 years), and do not violate the agreement.”

The Obama administration insists it has ended the “blanket” detention of “female-headed families.” It maintains that the length of detention at family facilities has been dramatically reduced. And ICE “no longer considers general deterrence as a factor in individual bond determinations for Central American women and children.”

The filing adds, “The court’s order almost exclusively analyzed and addressed detention policies and practices that no longer exist.”

This represents a slimy attempt to push Judge Dolly M. Gee into scuttling an order, which sought to hold the Obama administration accountable for corruption and misconduct that has been ongoing as a result of immigration policies. But the administration does not stop there.

The Justice Department stretches the nature of the judge’s order and disingenuously claims this may undermine the government’s ability to detain and expedite removal of undocumented immigrants as Congress intended. It suggests progress achieved in “reducing the number of families illegally crossing the Southwest border since the summer of 2014” could be undone.

“Specifically, the proposed remedies could heighten the risk of another surge in illegal migration across our Southwest border by Central American families, including by incentivizing adults to bring children with them on their dangerous journey as a means to avoid detention and gain access to the interior of the United States.”

It is a despicable example of fear-mongering, when a large part of the “surge” was the result of families fleeing Central America to seek safety from violence in their home countries. These families are not “illegal immigrants.” Rather, they are refugees.

In fact, about 86.9% of families who claim a reasonable or credible fear if they are returned to their home country have been confirmed by authorities to have credible claims.

There is no statistical evidence to support the notion that allowing this order to stand will encourage more families to “illegally immigrate” to the United States. On the contrary, a Border Patrol officer who submitted testimony to bolster the government’s case acknowledged apprehension of families has been declining 16% each year.

Northwest Detention Center Resistance activists block a Seattle intersection with banners, including one that reads "Not 1 More Deportation," and a bed, on August 3, 2015. (Facebook / Northwest Detention Center Resistance)

Northwest Detention Center Resistance activists block a Seattle intersection with banners, including one that reads “Not 1 More Deportation,” and a bed, on August 3, 2015. (Facebook / Northwest Detention Center Resistance)

The American Immigration Lawyers Association (AILA) and American Immigration Council expressed outrage.

“The response from DOJ to Judge Gee’s recent ruling is no more than bad play-acting at compliance. Truly, they should be embarrassed to submit such a document to a court of law,” AILA President Victor Nieblas Pradis stated. “Ever since Judge Gee first threatened her order, the administration has been scrambling to quickly release some of the mothers and children, and they’ve bungled the process badly, leaving in detention many women and children who have been locked up way too long.”

“The government’s protest that ‘we’ve fixed things, we promise’ rings hollow when the sharp light of reality shines on the detention centers. Our volunteer attorneys on the ground with the CARA project see the truth every day, and know that it is not reflected in this shameful document. They know, and have submitted case after case to ICE, of the children and mothers confined for extended periods, waiting for someone to act on their cases. This injustice must end.”

For example, at facilities in Dilley and Karnes, Texas, the CARA Pro Bono Project reported its volunteers had observed ICE using “coercive tactics to persuade women to accept ankle monitors.” And, in the process, these women are being denied access to counsel.

“Specifically, ICE has summoned women to ‘court’ appointments using post-it notes instructing them, “Ir a Corte” (Go to Court) within thirty minutes (see post-it note attached). The women have no idea why they are being summoned,” according to CARA. “Once inside the Executive Office for Immigration Review (EOIR) courtroom trailer, ICE officers told the women ankle monitors were a condition for release. For the women who had their bond reviewed and lowered by immigration judges, ICE officers proclaimed that the immigration judges’ word has no value.”

“We do not understand the authority that ICE has to issue ankle monitors after an immigration judge has reviewed and set the bond. The Miami Immigration Judges have been similarly perplexed, as authority to change the terms of the bond lies with the court via a motion for redetermination based on changed circumstances or with the Board of Immigration Appeals via an appeal. While ICE can offer terms less restrictive than the immigration judge’s order, anything more restrictive is firmly within the purview of the courts.”

Mothers at Dilley have faced “intimidation as a result of speaking with counsel about their ankle monitors.”

CARA reported, “One terrified CARA client reported that, on the night of July 23, 2015, at about 9:00 pm CST, officials went room-to-room wanting to know the names of the mothers who told CARA about the problems with the ankle monitors. These officials emphasized that they wanted the mothers’ names. The client reported that the angry officials told the mothers that lawyers have nothing to do with this matter.”

Corrections Corporation of America (CCA) guards and ICE have conspired to deny immigrants access to CARA attorneys prior to their bond hearings.

CARA maintains, “There is no transparency or consistency regarding how ICE sets bond amounts, why certain individuals are required to pay a bond in addition to an ankle monitor, and why restrictive forms of supervision like ankle monitors are necessary to mitigate a particular flight risk.”

Simply put, the Obama administration cannot credibly claim to suddenly have taken all appropriate steps to protect immigrant families in order to convince a judge to vacate her order.

“ICE’s frantic attempts to release some mothers and children do not provide the due process guaranteed by our Constitution and the proper care of children required by the Flores settlement,” stated Melissa Crow, legal director of the American Immigration Council.

“The government’s ongoing violations of the rights of detained mothers and children belie DOJ’s claims about the impact of DHS’s current policies and procedures,” Crow added. “Despite the government’s claims that things have changed, the fact remains that incarcerating asylum seekers is contrary to our laws and values, and detaining children is reprehensible. Instead of arguing about which traumatic facets of detention they are improving, they need to end it once and for all.”

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."