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In Violation of the Constitution, Obama Is Deporting Asylum-Seekers Without Oversight From The Courts

Child on fence
Child on fence
Terry Ding,
ACLU Immigrants' Rights Project
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June 18, 2015

When Liliana fled from her home in Guatemala to the United States with her two young children this March, she did so because she had no other choice.

Liliana had been raped twice by members of a notoriously violent gang: Once when she was washing at the river, and again when gang members broke into her home and raped her and her mother. Both times the gang members threatened that if she tried to report the crimes, they would kill her in front of her three-year-old daughter and one-year-old son and then kill the children too.

These were not empty threats. A year earlier the same men had brutally raped and murdered Liliana’s cousin. The family called authorities, but the Guatemalan police, generally unable or unwilling to interfere with gang activities, did not investigate and made no arrests.

Fearing for their lives, Liliana and her children left Guatemala a week after the second attack, making the treacherous journey to the United States to seek asylum. But their ordeal was far from over. Upon their arrival in this country, they were detained at the Karnes County Residential Center, which is, despite its name, a prison. They would remain there for the next two-and-a-half months.

Our immigration laws, on paper, guarantee a fair process for vulnerable individuals like Liliana. People seeking asylum are entitled to a full asylum hearing as long as they can establish, during an initial interview with an asylum officer, a “credible fear” of persecution in their home countries. Liliana and her children should have easily passed this standard based on the unimaginable harms they suffered, but the asylum officer found otherwise. Liliana and her children were told that deportation back to Guatemala — and near certain death — was imminent.

Only after the ACLU and ACLU of Texas filed a lawsuit on the family’s behalf did the government give Liliana a new credible fear interview. She passed the new interview and was allowed to proceed with her asylum case. Two weeks ago, she and her children were finally released from detention.

Liliana’s struggles with the asylum process are far from unique.

Since last summer, the ACLU has filed six other cases on behalf of Central American refugees fleeing extreme sexual violence and death threats to seek asylum in the United States, only to be detained, determined to have no credible fear, and put into deportation proceedings. In every case, the Obama administration has argued that it can deport asylum-seekers without any oversight or review from the federal courts. This practice deprives asylum-seekers of their constitutional right to challenge their deportation orders in federal court. And in every case, the administration has ultimately reversed course and granted our clients new interviews with asylum officers — effectively acknowledging the flawed nature of the process they had been given. After the new interviews, nearly every one of these clients has had their deportation orders vacated and has been released from detention.

These cases illustrate the inhumanity and unfairness of the Obama administration’s treatment of families and adults seeking asylum — treatment that the ACLU is fighting on several fronts.

In addition to representing individuals like Liliana, we recently obtained a ruling from a federal district court enjoining as unconstitutional the government’s practice of detaining asylum-seeking families for the sole purpose of deterring others from coming to the United States. We also filed a case last year challenging the government’s failure to provide counsel to children in immigration court who are forced to represent themselves in deportation hearings. In addition, our litigation, together with key advocacy efforts, helped to close down a remote family detention facility in New Mexico, just months after we filed suit.

Outrage over the government’s unnecessary and unconstitutional family detention policies is gathering momentum. On the heels of the 136 House members who urged Department of Homeland Security Secretary Jeh Johnson to end the detention of families like Liliana’s, 33 senators echoed the message in a letter to Secretary Johnson two weeks ago, writing that:

“We do not believe there is any system of mass family detention that will work or is consistent with our moral values and historic commitment to provide safe and humane refuge to those fleeing persecution.”

It is time for the government to give vulnerable refugees the meaningful opportunity to apply for asylum that they are entitled to under the law, instead of detaining them and deporting them back to near certain violence, if not death.

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