Detention of Asylum Seekers in Artesia, New Mexico: Immigration Law in the Wild West
The woman told me that her father-in-law had been shot seven times; the hospital report I saw showed four bullets to his head. She and her children had hidden, crouched under a window in another room, after seeing the gang banging on the door outside. They fled the next morning. Another woman told of people who had spoken out against the gangs in her town being decapitated and their bodies hung from power lines. Another told of finding her neighbors’ severed body parts outside her house, as a warning to pay “la renta”, the extortion money demanded from people living in the vast areas of El Salvador under gang control. Several women told of their daughters being picked up from school and driven around by gang members, often at gunpoint, sometimes sexually assaulted, and then told they would be kidnapped or killed if their families didn’t pay “la renta”. Others told of their children being used to collect drug and extortion money; some of the young girls had similar stories. A teenage boy told of threats to cut his hands off if he didn’t do the same thing. There were stories of domestic violence, too, although the word “domestic” is an unlikely adjective to describe the abuse these women suffered – rape at gunpoint, beatings, broken bones from being pushed down stairs, stabbed while pregnant, sexual abuse of their children from other partners. Sexual slavery and indentured servitude seems like a better description.
These are typical stories of the hundreds of women and children seeking asylum from El Salvador, Honduras, Guatemala and Mexico now detained in Artesia, New Mexico, under conditions that our government has made particularly difficult, in order to deter others from coming to the US and making similar claims. The gangs at home threatened to make an example of these people, and so they fled; the government here now threatens to make an example of them if they don’t go back. The treatment of these people, and in particular their detention, violates both the letter and the spirit of our immigration laws.
How US immigration law treats non-citizens facing deportation depends on number of factors, including physical location, immigration status, and how long they have been here. Generally speaking, people facing deportation are entitled to a hearing before an immigration judge (an “IJ”) at which they can assert defenses to deportation and/or apply for certain types of immigration status, including asylum. However, people who are apprehended at or close to the US border after having entered illegally, or who have entered the country illegally within the last two years, can be deported without any court hearing. This process is known as expedited removal.
The one significant exception to expedited removal is for people who claim to fear persecution or torture in their home countries, who cannot be deported without a hearing. This involves a two-step process. First, the person is interviewed by an asylum officer to determine whether or not there is a significant possibility that he or she will be eligible for asylum or protection from deportation (called withholding of removal) under the Convention Against Torture. This is called a credible fear interview. A negative credible fear determination can be reviewed by an IJ, and if it is upheld, there are no further appeals and the person is deported. A positive credible fear determination, by either an asylum officer or an IJ, finding results in a full immigration court hearing on the merits of the claim. All of the immigration court cases at Artesia are of people who have had positive credible fear findings.
In the asylum context, not all incidents involving gang violence qualify as persecution, and not all people who fear gang violence have a claim for asylum. However, the converse is also true, and the fact that violence is perpetrated or threatened by a gang doesn’t mean that the person is not eligible for asylum. Almost all courts have found that at least under certain circumstances, actual or threatened gang violence, as well as domestic violence, can sometimes be a basis for asylum as well as for protection under the Torture Convention, and the vast majority of claims made by the women at Artesia have been found to satisfy this initial credible fear test.
Artesia is a small town of eleven thousand people located in south-east New Mexico. From Albuquerque, it is a straight one hour drive east on Interstate 40 and then three hours south on Route 285, a dull and dusty road that cuts through flat south-eastern New Mexico like a never-ending straight piece of spaghetti. There is not much of anything in Artesia; it is hard to find a place to eat after nine in the evening, and even before then the choice of places to go or things to do is limited. In other words, not many people come to Artesia. The detention center is actually a federal law enforcement training center, poorly equipped for long-term detention of people with children (or even people without children). The immigration court hearings are all conducted by video, with the judges and DHS lawyers located in Arlington, Virginia, probably two thousand miles away, and all of the immigration officers have been detailed there from other locations. The detainees are housed in row upon row of barracks-style trailers; there is no playground for the children that I saw, and no outdoor area for adults to exercise. The ground is all tarmac and concrete paving; there doesn’t seem to be even a blade of grass, or a plant.
Many of the young children are ill, both because of the food, which is unfamiliar, or because they have other illnesses, ranging from asthma to bronchitis to seizures to unexplained rashes and fevers, yet medical facilities are limited and the treatment advice is meaningless. Their parents, too, have physical and (unsurprisingly) mental health problems, but there is no mental health treatment there. I read medical records for one woman who was diagnosed with a major recurrent depressive disorder. She had a positive credible fear finding, and relatives in the US were willing to care for her, yet DHS refused to parole her from custody. There were many similar cases. The detainees are given one piece of fruit daily, but some of them don’t eat it and give it to someone else or save it for another day; ICE officers routinely search the dormitories for this food and then throw it away, claiming that it is contraband.
The presence of the detainees in Artesia is controversial, as evidenced by protests against them (but also against their detention); the office from which the immigration lawyers’ pro bono representation project operates is located in a church, but has asked that its address be kept secret in case it, too, is the target of protests. Such are the contradictions in a town where over 40% of the population is of Hispanic or latin descent and signs of religious zeal are everywhere, even in the local hipster-looking coffee shop which has fliers for Christian rock concerts, crucifixes on the wall, and a bible open in front of the cash register.
I recently spent three days in Artesia, providing legal assistance to the people detained there. I spoke with some of the women, and reviewed probably close to 100 of their case files. Despite largely finding that the women’s fear of persecution is credible, DHS has consistently refused to parole them from custody, instead preferring to detain them and their children under appalling conditions and at the taxpayer expense, in order to prove a point.
It is impossible to separate the humanitarian from the legal concerns about Artesia, both because the women there are all asylum seekers, which is itself based in humanitarian concerns, and also because the oppressive conditions under which these women are detained impairs their ability to properly assert their claims. Most people involved, including the government, will readily admit that this is the entire purpose of Artesia.
The first and obvious concern is the location. It is clear that Artesia was chosen as a detention center precisely because it is so remote, which poses huge challenges for representation. The nearest immigration law firm is in El Paso, a few hours drive away, and there have been reports of attorneys from there being told by ICE officers that their client’s hearings, which they drove several hours to attend, had already been held without them. Most of the legal representation is provided by volunteer lawyers and paralegals who have taken days or weeks from their practices to travel to Artesia at their own expense and provide assistance. This makes continuity of representation difficult in all but a few cases, as lawyers continually rotate in and out of a particular case, thus requiring additional time to become familiar with the facts and relevant legal principles. Having lawyers represent clients remotely with the assistance of volunteers physically present in Artesia is also not satisfactory, as it limits the quality of the representation and delays the overall proceedings, but it is done because of necessity. Although the pro bono project and volunteers operate as best it can given these limitations, these limitations would not exist at all if the women and children were detained in a more accessible location.
The second concern is the actual conditions under which the detainees are held. Artesia was not designed as a detention center; there are few-to-no facilities for families, and the children, already traumatized by the persecution they have often witnessed and then the arduous overland trip to the US, are again traumatized by being imprisoned. They have constant medical problems, and the treatment is poor, harsh and unsympathetic. It is unrealistic to expect women, under these circumstances, with sick children, to be able to respond properly to questions from asylum officers, much less assist lawyers in obtaining medical and police records from their home countries to support their asylum claims, and reach out to family or friends in the US to obtain financial and other documents to support their bond applications. If the families must be detained (and there is no reason why they should be), it should be in a facility which offers proper facilities, including child care, recreation, and medical treatment.
The third concern is with credible fear hearings and decisions. Nationally, asylum officers make a credible fear finding in over 60% of cases they interview (and that number used to be far higher), yet in Artesia, this number dropped to about 30%. But the Artesia claims cannot be much different from other credible fear claims, almost all of which are also from central America and Mexico and are also largely gang related. Many of these credible fear denials are later reversed by Immigration Judges, which also bucks the national trend of it being far more difficult to win credible fear before an IJ than before an asylum officer, and further emphasizes that the asylum officers are determined to deny as many of these cases as possible. The only, and obvious, explanation for this low credible fear number is that the asylum officers are responding to a directive to apply a higher standard and deny as many of these claims as possible, instead of deciding them objectively and on their merits. While it is positive to see Immigration Judges granting more credible fear claims, this process takes additional weeks, during which the women and their children continue in unpleasant detention conditions, and is a waste of both the government’s and the detainees’ limited resources.
The fourth concern is with regard to parole and bond, and both DHS and the immigration court are applying different, and higher, legal standards than usual.
People subject to expedited removal are subject to mandatory detention during the credible fear process (i.e., until their credible fear claim is decided), although in practice DHS often paroles people from custody prior to scheduling a credible fear interview. A decision to release someone from DHS custody after a positive credible fear determination can be made either by DHS, or if they refuse, by an Immigration Judge, once the person has been placed in removal proceedings.
Up until now, DHS typically released people from custody, usually without bond, upon a positive credible fear finding, and a December 2009 ICE memo on the issue all but requires such release, describing it as being in the public interest. Although this memo addressed release of people termed “arriving aliens” (a technical term in immigration law to describe people detained right at, instead of close to, the border), its rationale and principles apply equally to everyone in the credible fear process. For the Artesia detainees, however, DHS has taken the opposite position. With few exceptions, it has refused to grant parole requests filed by the women whose credible fear claims have been granted, even for those whose children have medical problems, and/or who have relatives in the US willing to support them. As a result, everyone has to seek a bond hearing with the Immigration Court. This is a huge waste of resources.
In these immigration court bond hearings, DHS has argued against any bond being set, on the basis that it will simply encourage other people with asylum claims to come to the US across the southern border, thus posing a threat to public safety and the public interest. In other words, ICE argues that its own policy as stated in the December 2009 memo, that paroling people with a credible fear finding is in the public interest, is itself a public safety threat. This makes a nonsense of both the parole policy and the detention policy, and holds the agency up to ridicule.
In a further departure from standard practice, immigration court bond hearings at Artesia typically last for two to three hours, because the IJs examine the merits of the underlying claims in great detail. This in contrast to the typical bond hearing, which takes less than thirty minutes, and which focuses on whether or not the person is a threat to public safety and is a flight risk. Of course, the merits of the underlying immigration court case should be a valid consideration in any bond application, but in the Artesia cases there has already been a credible fear finding (otherwise the person wouldn’t be in immigration court and wouldn’t be eligible to seek bond), and so there should be no need for any further examination of the merits. After these excessively long hearings, bond is either denied or else set at upwards of fifteen thousand dollars, knowing that most of the detainees simply cannot post it. The typical bond in an immigration case where there is no criminal history and the person is eligible for relief, has been in the region of five thousand dollars or less. DHS have also begun appealing all of the IJ decisions to grant bond, arguing that releasing any of these asylum seekers is a threat to public safety. It is plain that bonds are being set so high in order to ensure that they cannot be met, in hopes that the detainees will agree to be deported rather than spend additional months in Artesia, and to deter others from seeking refuge in the US.
This is completely unacceptable. When Immigration Judges make decisions in a class of cases (Artesia detainees) that are inconsistent with other, legally-identical cases and that articulate the stated goals of the government (that asylum seekers from Central America detained near the border will not be released on bond), their decisions are not based on the law and instead are nothing more than mouthpieces for government policy. Immigration Judges should demonstrate more independence.
A repeated justification for this harsh treatment is that smugglers have induced people to come to the US by telling them that if they claim asylum once they get here, the US government will grant them temporary permission to stay. Therefore, the government argument goes, we must discourage people from believing the smugglers.
This argument makes no sense. To be sure, it is entirely possible that many of these people have been told by smugglers that DHS will grant them temporary permission to stay here if they claim asylum, but that is not inconsistent with having a valid claim for asylum; in fact, it is irrelevant to it. It is unlikely that people would undertake dangerous trips to the US if they knew or believed that they would not be able to seek asylum here. To the concern that people will come to the US and claim asylum, knowing that they will be able to remain here for the years it can take for their cases to be finally decided, the solution is simple: hire more immigration judges, so that cases can be decided quicker. The Immigration and Nationality Act requires asylum cases to be adjudicated within 180 days of the application being filed, yet it typically takes anywhere from two to five years for the immigration court to decide an asylum case, simply because there are not enough judges. As long as those delays continue, the advice given by the smugglers to people from Central America will continue to be true, and locking five hundred people up in the middle of the desert will not change it.
The case files for the women detained at Artesia tell stories of unimaginable violence. Most of their claims have been found credible by asylum officers or immigration judges. At that point, they should be released immediately. As pointed out above, DHS’s own parole guidelines both authorize and require this. If DHS refuses to do so, and the person has to seek a bond hearing in immigration court, the Immigration Judges should comply with the numerous Board of Immigration Appeals decisions which provide that a bond amount should be set no higher than is required to secure the person’s attendance, which in analogous cases is about $5k.
There is simply no justification for detaining these women and children in Artesia, which has already been the target of sustained criticism by the media and immigration and human rights advocates. If the government insists on detaining them throughout the credible fear process, it must shut down the Artesia detention center and house families together in a setting with proper facilities and that is accessible to all, and once a credible fear has been found, they should be paroled from custody. In the meantime, mistreating these women and children in order to send a message of deterrence to other people is precisely the situation from which many of them have fled. They, and we, deserve better.