The U.S
Detention Centers and Alternatives:
When asylum seekers arrive at the border between the United States and Mexico, they present themselves to U.S. Border officials at ports of entry or after crossing the border. All asylum seekers must pass a Credible Fear Screening performed by U.S. Citizenship and Immigration Services; this screening establishes that an asylum seeker has reasonable fear of persecution or violence if they had to return to their home country. Some ports of entry have placed caps on the number of migrants they will receive for asylum claims daily, creating encampments along the Mexico border of asylum seekers waiting their turn to present themselves. Asylum seekers who chose to cross the border, often under dangerous conditions, present themselves to Border Patrol agents. Both asylum seekers at ports of entry and those who cross the border are immediately detained following the Credible Fear Screening.
On any given day, there are 30,000 individuals in over 200 immigration detention facilities across the United States. According to U.S. Immigration and Customs Enforcement (ICE), in 2018 the cost of maintaining each immigrant detainee was $127.54. The conditions described at these private and federal institutions are well documented by news outlets and class action lawsuits filed by human rights organizations. One of the most commonly reported abuses in detentions centers are the hieleras, or “iceboxes.” Detention centers have been accused of maintaining unreasonably and unhealthily cold temperatures in their holding facilities where men, women, and children eat, sleep, and wait for the progression of their cases. Adequate healthcare is reportedly insufficient in many detention centers, especially for young children and individuals with complex medical needs.
There are multiple options for the legal observation of asylum seekers besides detainment in detention centers; these are called Alternatives to Detention (ATDs). ATDs commonly used by ICE include parole, bond, check-ins at ICE offices, home visits, telephone monitoring, and GPS monitoring via ankle bracelets. ATDs are significantly more cost effective than detainment, with an average daily cost of $5.89 per person in 2017. While ATDs such as ankle monitors have a success rate as high as 99% in ensuring asylum seekers attend their immigration court dates, ICE prefers the security of detention to ensure deportation in the situation of a failed immigration case.
An additional factor necessary to consider in the debate on immigrant detention policy is the immigration industrial-complex created by privatization of detention centers. The two largest private detention companies, CoreCivic and GEOGroup, manage more than half of the country’s private detention contracts and earned over $4 billion in revenue in 2017. Additionally, many of the ATD programs are contracted by private companies like GEOGroup. Entire towns have become economically dependent upon the contracts and job development of private detention companies. Detention of asylum seekers is not merely a stage in a complicated legal system - it has so entrenched itself into the fiber of towns, states, and ICE itself. Meanwhile, the pattern of human rights abuses and inadequate care in immigration detention centers renders all participants complicit.
The Flores Decision and Family Separation
The Flores decision, which shapes immigration policies to this day, began in the 1980s when Jenny Flores, the Salvadoran daughter of an undocumented immigrant, was caught by the Immigration and Naturalization Service (INS) while trying to reach her mother in the US. At this point the INS was in charge of most aspects of the immigration process. Flores could not be released because the INS would only release her to her mother and her mother was worried that if she were to claim her she herself would be apprehended. Flores was also kept in substandard conditions: she and various others whom the INS had in custody were staying in an old motel with a chain-link fence around it and barely supervised.
Flores’s treatment and inability to be released led to a class-action lawsuit sponsored by various human rights groups in 1985. Carlos Holguin, an immigration attorney in Los Angeles who worked on the case, told NPR “When we began to look at the conditions that existed in the facilities in which the INS was placing these children, those conditions were completely inconsistent with any true concern for child welfare or their well-being. So the lawsuit basically argued two things. One is that the INS should screen other available adults and release children to them if they appeared to be competent and [safe] and that … the government needed to improve the conditions existing in facilities in which it held minors to meet minimum child welfare standards.”
This lawsuit went to the district court, the 9th circuit, the full panel of the 9th circuit, and finally to the Supreme Court, which in 1992 ruled 7-2 in Flores v. Reno in favor of the INS. In the opinion, Scalia wrote, "Where the Government does not intend to punish the child, and where the conditions of Governmental custody are decent and humane, such custody surely does not violate the Constitution."
According to the Center for Immigration Studies (CIS), human rights groups were unsatisfied with the government’s explanation of the conditions under which those detained were kept, and in 1997 the push for better conditions reached the Flores agreement which continues to operate today, saying that children must be released ‘without unnecessary delay’ and kept in the ‘least restrictive’ appropriate setting, as well as that the INS would implement standards for these children’s care in detention. In 2003, these responsibilities passed to various departments of the Office of Homeland Security with the dissolution of the INS.
Congress in 2008 passed the Trafficking Victims Protection Reauthorization Act (TVPRA), which codified some parts of Flores, preserving rights for migrant children.
In 2015, federal district court judge Dolly Gee found in a decision that children were held in ‘deplorable conditions’ in Border Patrol detention cells. Gee interpreted the meaning of Flores to apply to accompanied children as well as unaccompanied. Importantly for immigration policy today, she also interpreted the original policy of ‘without unnecessary delay’ to mean that children cannot be detained for more than 20 days.
Asylum
Once an individual makes the journey and arrives into the United States, they can apply for asylum if they suffer persecution or fear of persecution due to race, religion, nationality, membership in a particular social group, or public opinion. They will have to apply for asylum within one year of arrival to the United States in order to be granted permission to remain in the U.S. While applying for asylum an individual may include their spouse or children on the asylum application, but the children must be under 21 and unmarried.
A regular immigrant will have to wait on average 578 days for their case to be completed which includes all the hearings and decisions; whereas asylum cases take around 3 years to be completed. This creates even more difficulties because circumstances back home can change and cases become harder to prove. Even if an individual is caught in the backlog of the Asylum system, they must be dependent on their sponsors because one cannot apply for permission to work at the same time they apply for asylum. They can only apply for employment authorization if 150 days have passed since they filed a complete asylum application and no decision has been made on the application. Being caught trying to work during this time will hurt the asylum case down the road.
Asylum seekers are not given a defense attorney, so those who are able to afford one or find one that works pro bono are 5 times more likely to win their case. Those from the northern triangle have a very high denial rate when it comes to Asylum cases in the U.S. So even if these people are able to pass the credible fear hearing, they are denied asylum at rates for each country at Salvador (82.9%), Honduras (80.3%), and Guatemala (77.2%). So if a person is denied asylum they might be able to appeal, if they went through the defensive asylum process. Otherwise they will be returned to their prior legal status, which many times lead to deportation. If an individual is deported and able to make it back to the United States, they are able to apply for asylum again if they can prove their circumstances change.
If an individual is granted Asylum, then they will be able to apply for a green card one year later, in order to be granted permanent residence. While those who are granted Asylum gain freedom they did not have in their home country, they are still extremely disadvantaged. The percent of Central American immigrant families that live in poverty in the United States is around 28%, compared to immigrant families from Costa Rica and Panama at 13% and native born families at 9%. The percent of Central Americans that have health insurance coverage is at a much lower rate than the national average. Guatemalan immigrants have a insured rate of only 50% and Honduran immigrants of 48%, while the average of U.S. born citizens is 93%. So while many Central American immigrants have completed their journey, they will many times not have the quality of life as those born natively in the United States.
Relief Asylum Seekers Qualify For:
After asylum seekers arrive in the U.S. and become processed, the U.S. categorizes them into either “Qualified” or “Not Qualified” status. The 1996 Welfare Law categorized immigrants into two different sections depending on their legal status and their eligibility for certain benefits. “Qualified” immigrants fall under refugees, people granted asylum or withholding of deportation/removal, and conditional entrants. These “qualified” immigrants are eligible for many government funded programs such as TANF, Medicaid, and CHIP. However, for programs like SNAP or the food stamp program, only certain individuals that have met a prerequisite may be allowed to accept the benefits of the program. These individuals must have credit of at least 40 quarters of work history or qualified status for at least 5 years. Now if an individual lives in one of the following 5 states they may be eligible for benefits regardless of prerequisites: California, Connecticut, Maine, Minnesota, and Washington.
Other benefits that “Qualified” immigrants qualify for Low-Income Home Energy (LIHEAP) and Weatherization Assistance Programs (WAP). This means that “qualified” immigrants can receive payments to help them pay for costs of heating and cooling, to help cover unpaid energy bills, or weatherization. Now households qualify for LIHEAP when one or more individuals in the household receives TANF, SSI, food stamps or, “household income does not exceed 60 percent of the state median income or 150 percent of the federal poverty level, whichever is greater.”
Now “Not Qualified” immigrants may not qualify for any government funded programs but are allowed to receive certain benefits in order to survive. For example, “not qualified” immigrants qualify for Emergency Medicaid. But the actual conditions for someone to be covered for Emergency Medicaid is defined in the following: “Emergency Medicaid covers the treatment of an emergency medical condition, which is defined as “a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: (A) placing the patient’s health in serious jeopardy, (B) serious impairment to bodily functions: or (C) serious dysfunction of any bodily organ or part.”
Undocumented immigrants may be eligible for: Emergency Medicaid, Access to treatment in hospital emergency rooms, or access to healthcare nutrition programs under the Special Supplemental Nutrition Program for Women, Infants and Children (WIC). Also now some 26 states are introducing programs for immigrants that are state funded rather than government or federally funded.