Early this week, the Supreme Court denied a petition for a hearing from 28 asylum-seeking mothers and their 33 children, all of whom were denied fair asylum screenings in detention and are asserting their right to challenge these due process violations before a judge. These families fled conditions of extreme violence in Central America, and some have already been detained for as long as eighteen months in a facility in Berks County, Penn. By refusing to hear their consolidated case, Castro v. Department of Homeland Security (DHS), the Court has left in place a ruling that undermines key legal and constitutional safeguards for all asylum-seekers, thrown out decades of precedent, and exposed these families to the threat of imminent deportation to places where their lives will be at risk. DHS should act immediately to release these families on parole and grant them full and proper asylum proceedings before an immigration judge.
The stories of the women and children in this case are regrettably all too familiar among asylum-seekers in family detention. Many escaped domestic violence and threats from powerful criminal networks in Central America. These women, like nearly all immigrants and asylum-seekers apprehended near the border, were subjected to a process called “expedited removal,” which means that they would not be granted a full hearing before an immigration judge unless they could first establish a “credible fear” of persecution if they are returned to an asylum officer.
While the expedited removal process already lacks numerous essential protections for asylum-seekers, it does include a clearly defined procedure for how asylum officers should conduct these initial screenings. Yet in the case of the 28 women involved in this case these minimal statutory safeguards were denied. For example, the women’s petition to the Supreme Court described how the asylum officers they met with issued negative “credible fear” determinations without providing any written explanation for their decision, despite such explanation being required by law.
By bringing their case to court, these 28 courageous families were not challenging the “expedited removal” system itself – deeply flawed as it is; they were simply asserting their right to a fair screening as defined under the law. Lower courts, however, have ruled that these families could not do so, because, as non-citizens apprehended near the border, they did not have constitutional protections. In particular, the Third Circuit found that the families were not covered under the Suspension Clause, which guarantees that all people under U.S. jurisdiction have the right to habeas corpus (except in cases of invasion or rebellion), meaning that they can access the court system as a remedy for wrongful imprisonment.
By denying the women’s petition, the Supreme Court has left the Third Circuit’s deeply misguided ruling in place and introduced a bizarre discontinuity into our country’s jurisprudence concerning the rights of people in detention. Prior Supreme Court decisions have found that all people who are under the sovereignty of the U.S. government are protected by the habeas principle, even if they have never set foot on U.S. soil. Without this right, all other legal protections are not worth the paper they’re written on. Legal rights for asylum-seekers, such as those spelled out in immigration law, are useless if they have no access to the court system to defend these rights when they are violated. By preserving the astonishing and unprecedented Third Circuit ruling, the Supreme Court has thrown the rights of all other asylum-seekers into doubt. Its non-decision will allow U.S. immigration authorities to continue denying the basic safeguards for asylum-seekers described under the law, without leaving any recourse for their victims, as already commonly occurs.
UUSC has repeatedly called on the Obama and Trump administrations to end the shameful practice of family detention and to grant asylum seeking families full and fair asylum proceedings. In a press conference held in Martha’s Vineyard last August, UUSC stood alongside Make the Road PA and other advocates and faith leaders to express solidarity with the mothers and children detained at Berks, who were then on the seventh day of a hunger strike to protest their unjust imprisonment. UUSC’s research has documented the dire impact of family detention on the mental health of parents and children. These families who have already endured so much and fought for so long are asking only for one of the most basic and fundamental of constitutional rights. “The really outrageous thing,” said Jillian Tuck, UUSC’s Senior Program Leader for Rights at Risk, “is that our government was willing to imprison these families for more than a year– but they aren’t willing to give them less than a day to present their asylum case to a judge.”
Time is running out fast for the 28 families. Now that the Supreme Court has brought their litigation to a sudden end, they may be deported to life-threatening conditions in a matter of hours or days. Four of the families are protected for now under a temporary restraining order, because their children have Special Immigrant Juvenile visas, a particular status granted to minors with a history of abuse or neglect, but the others are now at the mercy of an executive branch that has shown itself to be no friend to asylum-seekers, no matter how vulnerable. DHS must act now to remove all 28 families from detention and provide them with a proper chance to present their case for humanitarian protection before an immigration judge.