Lawyers Say They Will Continue Fighting ‘Indefensible’ Family Detention

Lawyers representing women and children locked in family detention centers offered a sharp rebuke Friday to the Obama administration’s argument that it should be allowed to continue the practice.

The Obama administration defended family detention late Thursday night in a 60-page court filing responding to U.S. District Court Judge Donna Gee’s ruling saying the family detention system violates the 1997 Flores Agreement. That settlement requires undocumented children to be held in the least restrictive setting possible and orders DHS to generally follow a policy of releasing them.

The filing says new policies expediting release for asylum seekers make Gee’s ruling obsolete and that immigration officials still need to use family detention facilities to process mothers and their kids for periods of roughly three weeks before deciding whether they can be released to pursue asylum claims or other relief outside detention.

But lawyers representing immigrants in family detention weren’t buying that claim on Friday in a phone call with reporters.

“We believe their position is morally indefensible,” Peter Shey, one of the attorneys suing the federal government under the Flores Agreement, said. “We believe that it is legally indefensible. We believe that it is indefensible from the standpoint of the special needs of children.”

Shey said the Obama administration’s policy of detaining family units specifically composed of mothers and children -- rather than children traveling with uncles, fathers or cousins -- is also inexplicable and discriminatory.

“What man running the Department of Homeland Security’s agencies thinks that they can get away with a policy that punishes only mothers in certain circumstances, and in identical circumstances does not punish fathers, uncles, grandmothers?” Shey said.

Laura Lichter, an attorney who represents migrants in family detention as part of the CARA Pro Bono Project, said the Obama administration’s filing made little sense to those familiar with the problems faced by detained families. Contrary to government claims, Lichter said, conditions in family detention are deplorable, and families with credible asylum claims often languish for months waiting for release.  

“We are finding mothers and their infants getting detained for longer than people who are convicted felons,” Lichter said. “It is shameful and it is baffling.”

Women and their children often face medical neglect, with detention center staff telling detainees to “drink more water” no matter what the ailment, Lichter added.

The Huffington Post has previously reported cases of a woman allegedly being told to drink more water after showing up in detention with broken bones in her hand and a child being told the same thing after vomiting blood for days.

The mother of that child, Celina Gutiérrez Cruz, has yet to be released from detention even though she passed a screening with an asylum officer showing she had a “reasonable fear” of returning to her home country of Honduras, where a gang assaulted her and threatened to kill her 6-year-old daughter. The screening is the first step toward establishing a claim for withholding of removal, a type of deportation relief similar to asylum.

The Obama administration had all but abandoned the practice of detaining families back in 2009. But following a sharp uptick in the number of families crossing together illegally into the United States last year, federal officials expanded family detention once again, arguing that it would act as a deterrent. Some 68,000 family units crossed illegally into the United States last year.

A federal judge issued a preliminary injunction in February, however, barring the administration from keeping mothers and their kids seeking asylum locked up for deterrence alone.

Nevertheless, the government argued in its court filing on Thursday that eliminating family detention could incentivize further migration from the violence- and poverty-plagued countries of El Salvador, Guatemala and Honduras. The Department of Homeland Security reiterated that position in a statement on Friday.

“DHS remains concerned that if required by the Court to release all families seeking to illegally enter the United States -- including those who do not establish eligibility for relief or protection from removal -- another notable increase in the numbers of adults attempting to cross the border with children may ensue,” the statement reads.

Lichter said the government’s argument showed that it had yet to abandon its commitment to use family detention to deter would-be migrants.

“They say they stopped detaining to deter, and yet they’re saying if they stop detaining they won’t be able to deter,” Lichter said. “Their argument is circular.”