Refugees Shouldn’t Be Deported

Today’s New York Times editorial rightly condemns the Department of Homeland Security’s “appalling” home raids targeting mothers and children from Central America. In a January 4 statement, DHS Secretary Jeh Johnson made clear that Central American families and unaccompanied children who sought protection at the U.S. southern border are a top removal “priority” for the Department. In fact, Johnson considers them as top priorities along with terrorists and criminals.

Noticeably absent from the Secretary’s statement was any mention of the fact that so many of the families ordered deported have been unrepresented by legal counsel, did not receive adequate notice of hearing dates, and/or would be at risk of grave danger if returned to their violence-ridden home countries.

According to government data through November 2015, only 17 percent of families with removal orders have had a full merits hearing, where a judge considers an individual’s asylum or other petition to remain in the country. The remaining 83 percent were issued removal orders in absentia, meaning that a judge ordered deportation for failing to appear for a court hearing.  A full 97 percent of those in absentia orders were issued against unrepresented families. As our previous factsheet outlined, 98 percent of families who are represented are in compliance with their appearance obligations for court hearings.

Through Human Rights First’s extensive pro bono representation work, we know that often a failure to appear at court is related to systemic failures to provide accurate information (or in some cases any information at all) on appearance obligations, along with a lack of quality legal advice or representation for those who are indigent and cannot afford to pay for quality legal counsel. Given the complexities of our immigration system, it is difficult to impossible for asylum seekers to successfully navigate it alone and secure protection without legal representation. The following are just a few examples of these failures that Human Rights First attorneys have encountered in practice in the past year:

• One mother was scheduled for a hearing in Houston after she was released from detention in Conroe, TX, even though she notified Immigrations and Customs Enforcement officials that she was relocating to Maryland.
• One mother, after being released from the family detention facility in Dilley, TX, was told she had to check in with ICE in Salt Lake City. When she checked the hotline for immigrants with hearings she discovered she had a hearing in immigration court in Salt Lake City. The mother lived in Virginia and had notified ICE of her intent to move to Virginia upon release and had no family or reason to be scheduled in Utah.
• One mother was scheduled for an immigration hearing in New York for late December. She happened to check the court hotline and discovered her hearing date had been changed to later that week. She did not receive a notice advising her of the scheduling change.

As these examples illustrate, immigration authorities do not always provide asylum seekers and other immigrants with adequate, accessible information regarding the immigration court process and their obligations to appear for court hearings. Human Rights First and other groups have long urged U.S. immigration authorities to take steps to significantly improve the notice provided to asylum seekers and to support legal orientation presentations at the border. As a result of these notice deficiencies, some may not have the information necessary to appear for a court hearing, resulting in a removal order in absentia.

Many of those the government is seeking to deport will be sent back to a region plagued by high levels of violence. Secretary Johnson’s statement itself outlined plans to expand refugee processing in the Central American region in recognition of the dangerous and unstable country conditions. Given the extraordinary levels of violence and persecution in these countries, DHS should not seek to deport these families. Instead, they should have access to temporary protection or deferral of removal in light of the serious security concerns that they would face upon return.

President Obama should direct DHS to halt these raids and removals. As an immediate step, any families who have been taken into custody and face imminent removal should be immediately assured an opportunity to consult with legal counsel in order to explore whether their cases can be reopened. The Obama administration also needs to focus on real solutions that address the regional crisis and improve protection across the region, and provide due process, legal counsel, and protection to families with children fleeing violence and persecution.