Dilley, TX and Leesport, PA – “¿Puedo decir algo más? / Can I say something else?” That’s the voice of “Antonio,” an eight year-old boy, detained with his family in the South Texas Family Residential Center for more than 456 days. He spoke to reporters about his hopes and fears, from the detention center. Antonio doesn’t want to be deported, but he doesn’t want to spend another Christmas in detention either. His voice may be small, but his words were powerful.
Antonio and two other children who are facing deportation as early as this weekend spoke alongside their lawyers, in a Zoom meeting November 18. They are part of a group of 28 children in imminent danger of deportation and a return to persecution with their parents, if the Trump administration carries out its cruel plan. Their ages range from 2 to 18.
Listen to “Ana,” detained for 438 days and “Margarita,” detained for 459 days, both fifteen years-old. (All pseudonyms courtesy of Telemundo.) They may not have been born in the United States, but they do understand their legal rights, and know that their families were illegally denied a fair chance at asylum. Despite the difficulties of being detained for 459-plus days, Margarita said: “We don’t want to die or for our parents to die. If we weren’t afraid [of going back], we wouldn’t have stayed in detention so long.”
Nicole Phillips, Legal Director with Haitian Bridge Alliance, recounted the harrowing experiences of one Haitian couple, their child, and their unfinished journey to safety and freedom. (Content Warning: gender-based and sexual violence and racism). They and another Haitian couple with a child are currently facing deportation out of the Berks County Residential Detention Center in Pennsylvania.
Due to a settlement agreement, these families could be deported to Haiti, Central America, and South America as early as this Sunday, without ever having a real evaluation of their need for protection. Shalyn Fluharty, Attorney with Proyecto Dilley who represents the children, outlined some of these policies on the call with reporters.
Bridget Cambria, Attorney at Aldea-The People’s Justice Center, and lawyer for many detained families at the Berks County Residential Detention Center, called on the Trump administration to stop these deportations in one of its last official acts.
“Alexa,” a formerly detained child, recorded a video begging for the release of the #28Children. She asked: “Why do they say that children have rights in this country when they don’t respect children’s rights?” Alexa and her mother were denied medical care while in immigration detention, and upon release, her mother discovered she had cancer.
This week, sixty organizations sent a letter to President Trump, President-Elect Biden, and Congress, calling on them to protect the #28Children “and their families from persecution and torture.” 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
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 being cheated by the government out of their legal right to seek asylum, the Trump Administration will most likely deport them one of its last official immigration 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.
Most recently, lawyers supporting Aldea and Proyecto Dilley who represent the families moved to intervene in East Bay, the case barring enforcement of the STCTB nationally. The families’ latest stay of deportation was pursuant to this motion to intervene. 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).
The legal team immediately filed an appeal before the Ninth Circuit, and reached an agreement with the government not to deport the families until at least until November 21, to give time to the Ninth Circuit to make a decision on whether to stop the families’ removal. We will seek to avail the children’s legal rights to address every unlawful policy they were subjected to, but time is of the essence.
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.