By Michelle N. Mendez
On February 20, 2015 the U.S. District Court for the District of Columbia responded to the desperate pleas of detained Central American women and their children. The women had been found to have a credible fear of future persecution by an Asylum Officer or the Immigration Judge yet they remained detained on account of the U.S. government’s national security-based deterrence strategy of sending a message to other women and children considering fleeing to the United States for safety. The message? Think twice about coming to the United States for you may end up being indefinitely. But the court rejected this speculative reasoning writing “incantation of the magic words 'national security' without further substantiation is simply not enough to justify significant deprivations of liberty." The court enjoined DHS’s sweeping no-release policy as, among other things, a violation of the Fifth Amendment of the U.S. Constitution.
Immigrant rights advocates cheered the judge’s order and expected the women to undergo individualized consideration of whether they pose a danger or flight risk that justifies their detention. Given that most of the women and children were themselves victims of extreme violence, death threats, or rape and had every incentive to pursue asylum and related relief, it was difficult to see how these women and their children posed either a danger or a flight risk warranting their prolonged detention. However, on February 27th when the Department of Homeland Security at the Southern Texas Family Residential Center in Dilley, Texas began distributing bond determinations generally between $7,500 and $15,000 in response to the injunction, those expectations went unmet. The glimmer of hope evident on the women’s faces upon learning that a judge far away had ruled that they should have the opportunity to pay a bond quickly faded when they realized that DHS had set a bond at an amount that was the practical equivalent of the judge never having issued that decision in the first place. One woman prophetically remarked, “What is the point of the government setting bonds that we cannot possibly pay?”
Requesting review of the bond amount by the Immigration Judge was the next option. The Denver Immigration Court has jurisdiction over the women and children at the Southern Texas Family Detention Center so the women’s hearings are held over videoconference that provides a perhaps convenient barrier between the judges and ICE attorneys and the humanity of the women and children. In the first weeks following the injunction, the women argued that the Immigration Judge should lower the bond set by DHS and that a reasonable amount would be the statutory minimum of $1,500. One judge lowered bonds to $3,000, $6,000, and $7,500 in three cases. The higher bonds were not lowered further because, for the judge, the fact that many of the detainees had hired and financially supported a commercial smuggling ring suggested a connection to an enterprise that would allow one to flee easily within the United States. The judge’s logic was that a reasonable bond should not be less than the amount paid to the smuggling ring. Aside from the $3,000 bond, it was unlikely that the other two women would be able to post the bond amounts the Immigration Judge set. Those who are unable to pay the reconsidered bond have little choice but to face another eight months in detention awaiting their merits hearing. The only other option, and one the detention officers are willing to suggest, it to agree to a removal at government expense. Despite the injunction, the initial DHS bonds and the Immigration Judge’s review of these bond amounts are proving to be cost-prohibitive for most of these indigent women and children who sacrificed their life savings—and more—just getting to the United States.
The EOIR recently announced that the Miami Immigration Court will take jurisdiction over the Southern Texas Family Residential Center detainees. Advocates eagerly await the changes to come, if any, on bond review decisions. However, the 2009 to 2014 asylum denial rate for Miami judges is fairly high, according to Syracuse University’s Transactional Records Access Clearinghouse’s records.
Michelle spent two weeks in San Antonio and Dilley, Texas during which she met with detained women and observed immigration hearings at the Southern Texas Family Detention Center. She represented CLINIC in developing the new collaboration among AILA, RAICES, and American Immigration Council named the CARA Project to assist detained women and children and provide a “face” to the issue of family detention.