ACLU Says Immigrants Are Being Indiscriminately Held In Detention As A ‘Deterrent’

An Orange County Sheriff’s deputy keeps a watch over a group of immigration detainees. CREDIT: AP PHOTO / JAE C. HONG
An Orange County Sheriff’s deputy keeps a watch over a group of immigration detainees. CREDIT: AP PHOTO / JAE C. HONG

A new detention center that will hold thousands of migrant families opened in Texas this week to handle a growing number of detained immigrant families. While the public justification for the facility is merely to hold an influx of immigrants who crossed the southern border this summer, a new lawsuit from the the American Civil Liberties Union suggests there’s another reason the number of U.S. detention center beds for migrant families spiked from 96 to 3,000 this year.

The lawsuit alleges that over the last few months, the Department of Homeland Security quietly changed its policy, so that even immigrants who have expressed a potential asylum claim of “credible fear” are automatically held in detention, in what the ACLU calls a “blanket no-release policy” that uses locking immigrants up as a deterrent to thwart other immigrants from crossing the border, rather than as a means to ensure that only those immigrants who pose a public safety threat are kept in lock-up. Before an influx of southern border crossings this summer, most migrant families who asserted potential claims of asylum were not held in lock-up while they waited for a court date, the ACLU says.

If true, the new policy alleged by the ACLU runs counter to the constitutional justification for detaining people, and counter to longstanding U.S. policy on deciding when to detain.

In comments to the San Antonio-Express, immigration officials have previously denied claims that they have any blanket policy on releases. A spokeswoman for Immigration and Customs Enforcement in San Antonio said, “Bond decisions are made on a case-by-case basis, based on considerations of risk of flight and public safety. These cases are screened by ICE and detention has been deemed appropriate.”


But the ACLU alleges that a class of immigrant families it is representing have all been detained since news about southern border crossings prompted public concern, and that even immigration judges have observed that “DHS attorneys are taking a blanket ‘no bond or high bond’ position in custody proceedings.” The lawsuit also states that DHS agents and attorneys have told families’ attorneys about a blanket no-release policy.

Several members of Congress noted the apparent existence of this policy in a letter to Congress, which noted that among those who were initially held in detention were a “mother and her child with brain cancer,” who was held without bond even after an official determined that the family had successfully overcome the first hurdle to claiming asylum.

“In another case,” the letter states, “a House staff member attended a bond hearing involving a mother and five-year-old child who had passed credible fear screenings at [the now-closed detention facility] Artesia. At the hearing, ICE opposed the granting of bond to the family notwithstanding the fact that the child was a victim of sexual assault at the age of four and had a fear of persecution in her home country. During her detention, the child suffered additional psychological damage.”

As the lawsuit points out, deterrence is not among the reasons typically permitted by the law for holding individuals behind bars. But even if there were, “there is no empirical evidence” that detaining families seeking asylum serves that purpose. In fact, far more adults cross the southern border alone, but adults without children are not subject to the no-release policy, according to the lawsuit.

Typically, the American legal system has three justifications for holding individuals behind bars. One is if they post a threat to public safety and need to be contained for the good of others. The second is if they are considered a flight risk and may not appear for a later court date unless compelled by force. And the third is punishment.


Courts have held that these justifications can only be met in criminal cases by allowing judges to make individualized determinations about the flight risk or danger of an individual who has not yet been convicted of a crime. So if an individual is charged with a crime and not yet convicted, judges decide on a case-by-case basis whether to release them. Just this past October, a federal judge struck down an Arizona law that called for automatic jail time for certain classes of undocumented immigrants charged with crimes.

The ACLU argues that in immigration court, there’s even less justification for holding migrants in detention. Immigration offenses are civil, not criminal, matters, and so they are explicitly not intended as punishment. What’s more, those who have established a claim of credible fear of returning to their home country are similar to criminal defendants in that they are simply awaiting a full hearing on their claim that they should be granted asylum or other relief from deportation.

The new family detention center opening in Texas this week comes with its own source of controversy. The new facility will be run by Corrections Corporation of America, a private prison firm with a record of abuse and mistreatment. Just a few years ago, the firm was forced to remove children from another Texas immigration center because of subpar conditions. Another major private family detention facility that has complaints of rampant sexual abuse and harassment by detention center employees voted to expand its number of beds this week.