But COVID Outbreak Adds New Threat to #SafetyForThe28
Washington, DC – On Thanksgiving eve, the U.S. Court of Appeals for the District of Columbia issued a temporary stay of removal for the 28 children and their parents facing imminent deportation from the South Texas Family Residential Center and Berks County Residential Detention Center in Pennsylvania.
“This stay means that federal judges have decided that these families’ claims are worth taking a careful look. We are relieved that the court is taking its time to review these issues closely, and we remain hopeful that, this time, the court will find a way to protect these families,” said Bridget Cambria, attorney on the case and Executive Director at Aldea – the People’s Justice Center.
Added Guerline Jozef, President of Haitian Bridge Alliance: “We can no longer allow this cruel system built on racism to destroy the lives of children and their parents who barely fled in search of safety. No child and their parents should be caged and deprived of life, liberty, and the pursuit of happiness. I would like to echo one of the father’s voices… Aren’t we human, too?”
The stay is temporary, and was issued to give the court more time to consider the underlying case, M.D.C. v Wolf, which challenges certain directives applied to the families’ credible fear process. Briefing from the Department of Homeland Security is due today, and the families’ lawyers have until December 3 to submit a reply.
Also last week, the Shut Down Berks Coalition demonstrated to demand #SafetyForThe28 in Philadelphia and Leesport. Leaders from Haitian American Voice, Pennsylvania Immigration and Citizenship Coalition, Juntos, and others joined State Reps. Joe Hohenstein and Chris Rabb reading letters from the families who are detained.
“We won’t let ICE use the holidays to deport families,” the crowds in PA said. Then came the news of the emergency stay order, which was celebrated.
But on top of the celebration is much uncertainty. The families’ fates are still unknown as the court case proceeds. Now, there is a massive COVID-19 outbreak in the South Texas Family Residential Center, threatening the families’ safety in a different way.
“Forcing children to spend two Christmases behind chain-linked fences as punishment for seeking safety is unconscionable. The government should protect children, not detain them indefinitely in a private prison with a COVID outbreak,” said Shalyn Fluharty, an attorney with Proyecto Dilley who represents several of the children and their parents.
Today, Proyecto Dilley released a declaration from a mother detained with her 8 year-old son for 425 days. She repeatedly reported signs of her son’s illness to detention center staff, but was brushed off. Days later, he was diagnosed with COVID-19. The mother’s declaration provides a window into the inhumane treatment these families receive inside one of our nation’s family immigration jails:
When the doctor told us that S.G.L. tested positive for COVID-19, I started to cry. I was crying because I was scared for him but also because I was furious. The doctor and nurses told me, “don’t cry, be strong!” But I wanted to yell at them, “He’s been sick since Sunday! How many people will have been infected since then?” From the first moment that a nurse saw S.G.L. on Sunday, they should have isolated him…. Every day I think about the two year old daughter of my friend that S.G.L. was always hugging, and the three year old boy S.G.L. played with four whole days after his symptoms started. I pray that they don’t fall sick.
Congressional leaders have been demanding that ICE and DHS halt these deportations and give the families a meaningful chance to apply for asylum. Release is also the best thing to do for their health. Senator Bob Casey outlined many of the families’s stories here. He and Senator Cory Booker sent a letter to the Department of Homeland Security, stating:
These families fled unspeakable violence in their home countries. For many of these children, deportation is tantamount to a death sentence…With more pressing issues facing ICE and the need to spend our limited federal resources wisely, there are more cost effective and humane approaches to this situation than family detention. We urge you to release these families to their sponsors and allow them a fair hearing of their case.
Alysia Reiner of “Orange is the New Black” fame also read one of the children’s letters in a video. Sixty organizations sent a letter to President Donald Trump, President-Elect Joe Biden, and Congress, calling on them to protect the #28Children “and their families from persecution and torture.”
In an earlier press call, lawyers laid out harrowing details these families have faced in their long, unfinished journeys to freedom, while three children representing the 28 bravely offered their thoughts from inside the detention center (“Antonio,” “Ana,” and “Margarita.”) See the following backgrounder for more about the families’ cases.
To schedule an interview with families, contact Dilley@familiesbelongtogether.org.
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Background on #SafetyForThe28
Twenty-eight children detained with their parents at the ICE Berks and Dilley Family Detention Centers are facing imminent deportation to Guatemala, Haiti, Honduras, El Salvador, Ecuador, Chile, Nicaragua and Peru.
These families are brave and heroic. These children are bright, kind and scared. They should be welcomed to the United States, not summarily deported by this callous administration. Not only did they travel thousands of miles in search of protection, but when the Trump Administration refused to hear their asylum claims, they took the government to court and invalidated the policies they had been subjected to, over and over again. Yet because of the dysfunction and injustice in the U.S. immigration system, they are still subject to deportation.
The whole time, however, they remained locked up in so-called family detention centers, celebrating holidays, birthdays, and other milestones without knowing what their future holds. After aggressive litigation to deny these families their legal right to seek asylum, the Trump Administration would apparently like to deport them as one of its last official acts.
Here is how these families’ U.S. nightmare began:
After requesting asylum at the U.S./Mexico border, these 28 children and their families were arbitrarily placed in expedited removal proceedings, instead of regular immigration proceedings. As the expedited removal statute mandates, Customs and Border Protection (“CBP”) referred the families to asylum officers, who then conducted interviews to determine whether the families have a “credible fear” of persecution or torture if returned to their countries of origin. When a family passes their credible fear interview, they are then released from detention and referred to an Immigration Judge so that they can formally enter the process of seeking asylum before the Immigration Court.
But the credible fear interviews conducted with these families, these life or death determinations, were flawed in multiple ways:
- Rather than having an untrained asylum officer conduct their interviews, these families were interviewed by unqualified CBP officers who conducted hostile, law-enforcement style interrogations. This is contrary to law per the D.C. District Court’s A.B.-B. v. Morgan, No. 20-cv-846, 2020 WL 5107548 (D.D.C. Aug. 31, 2020);
- The families were interviewed within 24 hours of arrival and categorically denied the right to consult with counsel prior to their interview. This was contrary to law per the D.C. District Court’s March 1, 2020 order in L.M.-M. v. Cuccinelli.
- The asylum office conducted these interviews under a heightened standard resulting from the Safe Third Country Transit Ban (STCTB or Asylum Ban 2.0), which disproportionately affected Black and Central American immigrants who had to travel great distances, under extraordinarily difficult circumstances, to seek protection in the United States. On June 30, Judge Timothy Kelly of the U.S. District Court for the District of Columbia vacated the interim final STCTB rule in Capital Area Immigrants’ Rights (CAIR) Coalition et. al. v. Trump. Additionally, on July 6, the Ninth Circuit Court of Appeals issued a preliminary injunction against enforcement of the STCTB nationally in East Bay Sanctuary Covenant et. al. v. Barr. Both courts reached the same conclusion: that the STCTB is unlawful as promulgated and as written.
- The asylum office conducted these interviews employing a Lesson Plan that has now been vacated by the D.C. District Court’s October 31, 2020 order in Maria Kiakombua v. Wolf. 1:19-cv-01872 (D.D.C.).
The government subjected these families to a deficient process, which resulted in erroneous negative credible fear determinations. Because the interviews were conducted pursuant to the STCTB and a Lesson Plan that were declared unlawful, and both were vacated, the negative determinations should be vacated as well. The families should be issued a Notice to Appear before an Immigration Judge and should be released immediately from the Family Detention Centers.
These families have fought for their right to access the asylum process in several courts. In M.M.V. v Barr, the families challenged the written regulations, directives, and procedures issued by the Administration to implement and enforce the Asylum Ban 2.0. In this case, the Court partially granted the government’s motion to dismiss and denied the families’ motion to stay their removal pending appeal. In D.A.M. v. Barr, the families challenged the government’s plan to remove them during the COVID-19 pandemic. Here, the Court found that it lacked jurisdiction under 8 U.S.C. § 1252, which bars judicial review of any claim “arising from or relating to the implementation” of expedited removal proceedings.
Throughout, ICE has refused to release these families pending litigation on the validity of these negative determinations, even though it has the power to release them at any moment. It is clear their detention is retaliatory and punitive, and they are being targeted because they are a family seeking asylum.
Lawyers supporting Aldea and Proyecto Dilley who represent the families moved to intervene in East Bay, the case barring enforcement of the STCTB nationally. However, the Court in East Bay issued an order denying their motion to intervene, but making an important notation:
The Court takes no pleasure in this holding. “[T]he facts amassed by the plaintiffs are deeply troubling, and . . . Congress has been too parsimonious with judicial review in an area where individual lives and liberty are at stake.” M.M.V., 456 F. Supp. at 217. The Court respects the limitations on its jurisdiction set by Congress, but feels compelled to observe that Defendants may now remove Proposed Intervenors from the United States after denying them the right to apply for asylum based on an illegal rule. To put it mildly, that result is both “unsatisfying” and “unduly harsh.” Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1142 (9th Cir. 2008).
Most recently, we appealed to the D.C. Circuit Court in M.D.C et al. v. Wolf, challenging certain directives applied to the families’ credible fear process. At the root of these directives is a lesson plan which was employed to conduct the families’ credible fear interviews – lesson plans which were deemed unlawful and were vacated in Kiakombua v. Wolf. We will seek to avail the children’s legal rights to address every single unlawful policy they were subjected to.
It is unacceptable for the government to continue to subject children in their custody to the torture of detention and to cheat them out of their lawful right to seek protection. It is made worse by the government’s relentless efforts to remove these children without a lawful process when that same government is also responsible for the torture of children who were separated from their parents, for those children whose parents remain missing, and for those children who the government continues to harm daily through the use of indefinite detention and expulsion.
The children, their families, and representatives are looking to the government and its representatives to provide safety for these children and their parents who have been denied lawful access to the asylum system. Failing these children means that our government will be responsible for the removal of innocent children to harm, persecution and even torture.
We are asking for #SafetyForThe28.
Please see this link for a letter signed by over 60 organizations demanding the government take action: http://bit.ly/SafetyForthe28
Aldea – The People’s Justice Center is a non-profit organization that provides universal pro bono representation to all families who are detained in the Berks County Residential Center. The mission of Aldea is to provide a holistic approach to meeting the multi-faceted needs of our immigrant community members, including through legal, social, educational, and medical services.
Proyecto Dilley provides free legal services to asylum seeker families who are detained at the South Texas Family Residential Center, using a volunteer-based model. Over the last four years, Proyecto Dilley has represented more than 55,000 families. Proyecto Dilley currently represents 26 of the 28 children who face removal to persecution and torture subsequent to indefinite detention.
Haitian Bridge Alliance is a nonprofit community organization that advocates for fair and humane immigration policies and connects migrants with humanitarian, legal, and social services, with a particular focus on Black migrants, the Haitian community, women, LGBTQIA+ individuals, and survivors of torture and other human rights abuses.