On Monday, the Supreme Court refused to hear a case challenging the government’s efforts to remove 28 Central American mothers and their 33 children from the country without an asylum hearing. This decision leaves in place a disastrous ruling from the Third Circuit Court of Appeals, which found that noncitizens apprehended near the U.S. border do not have rights under the U.S. Constitution. This is an unprecedented curtailing of protections for people seeking refuge in the United States.
All 28 families, including 14 currently in detention in Berks County, were denied their right under law to an adequate screening for humanitarian protection needs, and their lives will be in danger if they are deported.
For future asylum-seekers and everyone detained by immigration authorities in the United States, this decision poses a threat to fundamental constitutional and moral principles on which this country rests. For the asylum-seeking families directly involved in the case, this decision is akin to a death sentence.
The women and children involved in this case came to the United States from El Salvador, Honduras, and Guatemala, countries that rate among the most dangerous places in the world. Each of them fled situations of domestic violence, sexual assault, and threats from powerful criminal networks. One petitioner was sexually assaulted by the leader of a gang, who also threatened to kidnap her son. Another fled with her children because members of MS-13, one of the most powerful gangs in the region, made sexual threats against her 12-year-old daughter.
These 28 families received deeply flawed asylum screenings that did not meet even minimal legal requirements. The women described in their petition how asylum officers judged their fears “not credible,” without any substantive analysis, and failed to produce a written justification of their reasoning, as required by law. Based on these brief screenings, the families have been put into “expedited removal,” which means that they will be deported without a hearing.
The issue is not whether these families received a fair asylum screening, but whether they have a right to appeal their case before a judge, a deeply held principle of due process. In bringing this case to court, the women were invoking the principle of habeas corpus — a fundamental legal right that no one can be imprisoned without having the right to challenge their confinement in a hearing before a judge.
Prior Supreme Court rulings have unanimously found that all people who are within the jurisdiction of the United States have habeas protections, making the court’s denial of certiorari, which left the Third Circuit’s ruling in place, both astonishing and unprecedented. Indeed, the court in recent years has determined that the right to habeas is so basic and fundamental a safeguard for all other legal rights that it extends even to people who are detained in U.S. custody in off-shore facilities like Guantanamo Bay, and who have never set foot on U.S. soil.
Without the right to an effective remedy against unjust imprisonment and the ability to challenge due-process violations before a judge, all other protections that asylum-seekers theoretically possess are meaningless. While even the expedited removal system ostensibly ensures that anyone who legitimately fears persecution in his or her country of origin will have the chance to present a case for asylum, such guarantees are empty if border agents and asylum officers can violate them with impunity — as happened with these 28 families.
We have already heard well-documented stories from across the border region in recent months of Customs and Border Patrol agents refusing to hear asylum claims from people they apprehend, in plain violation of U.S. law. By finding that no asylum-seeker apprehended near the border can challenge these violations, the courts have ensured that these blatantly unlawful and life-endangering practices can continue, and even become routine.
The majority of the families involved in this case have been held in detention since litigation began 18 months ago. Unitarian Universalist Service Committee (UUSC) staff visited some of these mothers and their children this past fall. Some of the children, only toddlers, have passed more than half their lives in detention. They are subjected to degrading conditions that have devastating mental-health impacts, including nighttime “bed checks” every 15 minutes that interfere with their ability to sleep. One child we spoke to was celebrating a second consecutive birthday in the prison. Prior UUSC research has confirmed that long-term detention of this kind has devastating impacts on the mental health of families, and especially of children.
By refusing to hear this case, the Supreme Court has shown that our government is willing to imprison families with children for as long as 18 months, but it is not willing to grant them one hour to present their asylum case before a judge. It has extinguished the last hope for legal relief for these families and exposed them to the threat of deportation to possible persecution or death.
Courts in the future should drastically rethink the perilous direction in which this decision has carried our immigration jurisprudence. In the meantime, the Department of Homeland Security should act immediately on its own authority to release these 14 families on parole and place them into genuine removal proceedings before an immigration judge where they can make their case. Only in this way can it reverse the potentially fatal consequences for these families of the Supreme Court’s denial of justice.
Carol Anne Donohoe is an immigration attorney who has represented, pro bono, numerous families at the Berks County immigrant detention center. firstname.lastname@example.org
Jillian Tuck is an international human rights lawyer and senior program officer for Rights at Risk at the Unitarian Universalist Service Committee. email@example.com