Almost one year ago, on November 16, 2015, 29 Central American women and their 35 minor children, represented by the ACLU Immigrants’ Rights Project, sought federal court review of the legality of their removal orders, through an action known as habeas corpus. A year later, the 18 families who remain detained face imminent deportation without ever having had a meaningful chance to present their claims for immigration relief.
All the women and children named in the lawsuit fled horrific violence and persecution in Central America and made their way to the U.S. border to seek protection, or asylum, from the U.S. government. Upon arrival, these families were placed in detention to await the opportunity to present their claims for asylum to the U.S. Asylum Office. Despite presenting substantial evidence proving that they have good reason to fear return to their home countries, these families’ claims were denied following a cursory review, on the basis that they did not establish a “credible fear” of torture or persecution if they were to return home.
These cases illustrate the limited judicial review available to asylum-seekers who are placed in the government’s “expedited removal” process. In 2008, the Supreme Court ruled in Boumediene v. Bush that the non-citizen “enemy combatants” held in Guantanamo Bay had a constitutionally protected right to seek habeas relief in federal court. And yet, both the district and appellate courts in Pennsylvania have ruled that these asylum-seeking women and children, all of whom have presented substantial evidence demonstrating the harms that await them in their home countries, have no such right.
In the lawsuit, the ACLU argues that the process outlined in the Immigration and Nationality Act for assessing “credible fear” is inadequate, “resulting in erroneous negative credible fear determinations,” such as in the case of these women and children. However, before the families can present their claims for asylum in a full hearing before an immigration judge, they must first establish their right to judicial review in the U.S. federal courts. If, as the government argues, these asylum-seeking families have no such right, they could soon returned to the violence and persecution from which they fled.
In August, a federal appellate court in Pennsylvania agreed with the government and held that the families do not have a constitutional right to challenge the flawed process that the government tried to use to deport them in federal court. Last Friday, the same court denied the families’ request that the case be reheard by a full panel of judges. The next stop is the Supreme Court — if the Supreme Court is willing hear the case. Meanwhile, the families, all with outstanding orders of removal, remain vulnerable to deportation. If neither the appellate court in Pennsylvania nor the Supreme Court agrees to extend their stays of removal, which have been in place during the litigation thus far, all 18 families could be deported within days.
These families have faced physical, emotional, and psychological harm during their detention in secure facilities for up to and over a year awaiting decisions in their cases. Many of the women and children – some of whom took part in a hunger strike two months ago to protest their prolonged detention – have been diagnosed with PTSD or suffer from other serious medical problems. Now, as their deportation is imminent, they face the horror of knowing they may soon be forced to return to the domestic violence, gang violence, and other harms that await every one of these families in El Salvador, Guatemala, and Honduras, some of the most dangerous countries in the world. As a nation of immigrants, America can and must do more for these families.
Photo by Phil Roeger.