A Federal Court Judge recently banned the U.S. Government from using deterrence as a basis for denying the release of women and children from immigration detention facilities.
Article about the Decision:
Copy of the Judge’s Opinion:
District Court Judge James E. Boasberg, from the U.S. District Court for the District of Colombia, ordered the Department of Homeland Security to stop the practice of denying immigration bonds to women and children from Central America who had entered the U.S. without authorization. The Department had justified their routine denial of bonds on the basis that detaining and removing these immigrants would provide a deterrent to other women and children from coming to the U.S. illegally to escape the rampant violence, crime and gangs that are pervasive in Honduras, Guatemala and El Salvador.
Last year, we saw a huge increase and influx of unaccompanied minors and single mothers with children coming into the U.S. through the Mexican border. These immigrants entered the U.S. without valid documents and without being admitted by an immigration officer. Usually, when the U.S. Border Patrol catches people entering the U.S. in this fashion, they are detained and then removed to their country through an expedited deportation process called “Expedited Removal.” Most people subject to Expedited Removal are detained in immigration detention centers and not released until they are deported. However, when an immigrant has a credible fear of persecution, harm or torture if they are deported, they cannot be immediately removed and they usually get to see an Immigration Judge and can seek release from detention.
In the case of an immigrant who has a credible fear of harm and who is in a detention facility, they can have a bond hearing before an Immigration Judge. During a bond hearing, an Immigration Judge will determine whether the person is a risk to flee and not return for Court hearings or if their release would pose a danger to other people or their property. The Judge will look at the immigrant’s criminal record and immigration history to determine if they are a danger to the community. The Immigration Judge will consider how long a person has been in the U.S., their education and work history, family ties in the U.S. and eligibility for relief from removal to determine if the person is a flight risk.
An immigrant who has family in the U.S. and has passed a credible fear review is usually not considered a flight risk, because they have a place to live and an incentive to go back to court. Passing a credible fear review means that you have a good chance of winning an asylum case and then becoming eligible for a green card.
This is what normally happens. However, in the thousands of cases at the Southwest border where children and families were detained by the Department of Homeland Security, the Department was routinely refusing to release immigrants after they passed their credible fear reviews, even when they had friends and families with whom they could live in the U.S. The Department was arguing that they had the authority to deny bonds based upon a case called Matter of D-J-, 23 IN Dec. 572 (A.G. 2003). In this decision, the Attorney General said that the Department and Immigration Judges could deny bond to one person if it could deter “mass migrations” by other similar immigrants.
Judge Boasberg’s decision said that the denial of a bond to one person cannot be justified based upon its possible effects upon another group of people. This decision should pave the way for thousands of women and children to be able to obtain new bond hearings and release from immigration detention centers at the Southwest border.
John Gihon is an experienced immigration and criminal defense attorney at Shorstein, Lasnetski & Gihon. John has years of experience litigating detained immigration removal cases. If you, a friend or a loved one is in an immigration detention center, call today for a free consultation.
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