Deportation Raids Against Families Exacerbates Due Process and Human Rights Problems

When asylum seekers are stopped by federal immigration authorities, the government does not always provide them with adequate explanations regarding the immigration court process and their obligations to appear for hearings. In particular, when an increasing number of children and families sought protection at the southwest border last year, Human Rights First and other groups documented failures in providing adequate, accessible information related to appearance and supervision requirements, as well as clerical errors that can have serious consequences.

That’s why it’s alarming to hear recent reports that the Department of Homeland Security (DHS) is planning a series of deportation raids against families.

According to the Washington Post the operation has not been given final approval, but Secretary of Homeland Security Jeh Johnson has been pushing for it in light of the increasing numbers of children and families arriving at the southwest border.

It is not unlawful for the United States to deport individuals who have been ordered removed by a judge. But if the families aren’t receiving adequate court information, the U.S. government is not giving asylum seekers the tools to succeed.

Many of the families who have received removal orders have not had a full merits hearing. According to government data through November 2015, 83 percent of removal orders against families have been issued in absentia; 97 percent of those in absentia orders were issued against unrepresented families.

Families may fail to appear in court for a number of reasons, often related to systemic failures to provide adequate information on appearance obligations, lack of legal advice or representation, or inadequate support throughout the process. While conducting research at the southern border last year, Human Rights First researchers found that some asylum seekers were given hearing notices for a court located in a different state—apparently a mistake by the authority issuing the notice—with no explanation of how to correct such errors. Others have documented recent instances in which mothers were not provided information about their appearance obligations. Without this information, families may fail to appear for a court hearing, which can result in a removal order in absentia—when a judge orders an individual deported for failing to appear for a court hearing.

Legal counsel significantly improves families’ outcomes as well as the likelihood they will be in compliance with their court proceedings, but the government does not provide it. A growing body of research shows that representation can significantly improve the likelihood of a positive outcome – a fourteen-fold difference in cases of families. Less than half of families whose cases were initiated in fiscal year 2014 have been able to secure counsel. (But among those families who are represented by an attorney, 98 percent are in compliance with their court obligations.)

The administration’s plan also risks sending families to their deaths, potentially violating U.S. international legal obligations to not return individuals to a country where they face persecution. Many of the families seeking protection in the United States are fleeing epidemic levels of violence, including systemic violence against women and children in particular. Recent research has identified at least 80 cases in which individuals deported by the U.S. to Central America since January 2014 have been murdered upon their return. UNHCR has called upon all countries in the region to recognize that there is a growing refugee situation in parts of Central America. Even those who do not meet the technical requirements for asylum may face life-threatening dangers if returned to their home countries; experts have recommended the United States create broader routes to humanitarian protection to address these threats.

Moreover, the negative impact on children of detention and deportation has been well documented. Some families may include U.S. citizen children who will be at risk of entering the foster care system if their parents and older siblings are deported. Researchers have found that immigration enforcement measures that split up families take a significant toll on children and leave the state with high costs of foster care and related services.

Given the known deficiencies in providing families with adequate notice and due process protections, as well as the fact that family migration from Central America is part of a known refugee crisis, the Obama Administration should immediately reverse any plans to conduct blanket raids on families. A more effective and humane way to ensure families fulfill their obligations to appear for immigration proceedings would be to follow the recommendation presented in Human Rights First’s recent report, Family Detention: Still Happening, Still Damaging and implement greater access to counsel and legal orientation programs at the border. Such orientations would inform families of their rights, including the availability of legal counsel, and ensure fair and effective proceedings by providing families with the information they need to be in compliance with their immigration court hearing obligations. In individual cases determined to need additional support, families should be referred to community-based programs, which are more cost effective and humane than detention.

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Published on December 30, 2015

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