What’s Next for Family Detention?

The U.S. Department of Homeland Security has made important announcements in the past month regarding family detention – specifically, regarding Central American mothers and children who have been languishing in DHS custody while their asylum claims proceed in immigration court.  Earlier this week, the DHS began releasing many of the mothers and children who have been detained at Karnes and Dilley, Texas, and Berks, Pennsylvania.  The immigration advocacy community has welcomed these announcements, and everyone (myself included) is very excited that these mothers and children are being released from custody.  The announcement is also troubling, however, because it could forecast trouble for families who are detained in the future.

Last month, DHS Secretary Jeh Johnson announced “a plan to offer release with an appropriate monetary bond or other condition of release to families at residential centers who are successful in stating a case of credible or reasonable fear of persecution in their home countries.”  (emphasis added).  The announcement did not indicate that DHS intends to end family detention, however – to the contrary, it specifically noted that “continued use of family residential centers will allow for prompt removal of individuals who have not stated a claim for relief under our laws.” (emphasis added).  In other words, DHS intends to release families who pass a credible or reasonable fear interview, but continue to detain those who do not, so that they may be promptly removed.

This is troubling to me because in April 2014 the USCIS announced changes to the way it would conduct credible fear interviews of persons who request asylum upon arrival in the United States.  The rationale for these changes is the perception that too many people have been passing their credible fear interviews.  These changes represent a departure from humanitarian law and the common sense premise that these initial screening interviews should err on the side of inclusion, because their purpose is not to act as a barrier to asylum, but to ensure that we do not inadvertently return individuals to situations where their lives and freedom would be threatened.

The release of mothers and children who have passed their credible fear interviews is welcome, but in light of the Obama Administration’s inexplicable commitment to family detention, officials may try to use it to justify the future detention and expedited removal of families who are just as deserving of protection.  By making the credible fear interview the determining factor for release after changing the rules so that the credible fear interview becomes harder to pass, the Obama Administration has set a dangerous stage for future asylum seekers.  In this context, Secretary Johnson’s instruction “that USCIS conduct credible fear and reasonable fear interviews within a reasonable timeframe” could ensure that families are shepherded through the process without adequate preparation or access to counsel, all but ensuring that they will not be able to establish a credible fear of persecution under the heightened criteria.

USCIS has hired additional asylum officers, and they will presumably be trained to implement the heightened criteria for determining credible fear.  The release of mothers and children this month should not be used to justify the detention and removal of mothers and children next month.  The Obama Administration may claim that future asylum seekers who fail their credible fear interviews are different from the families being released now, but it is entirely possible that the only difference will be the criteria by which their claims are evaluated.

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