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Lory D. Rosenberg on Appeal Matters

The Relevance of Outrageous Conditions: A Blog in Two Parts

Rating: 3 votes, 5.00 average.
Recently, I engaged in a friendly, late night debate with a dear friend and colleague who is a seasoned immigration lawyer and law professor. It was triggered by the story on the Immigration and Customs Enforcement (ICE) website of a little girl in the Artesia, New Mexico family detention facility, who almost died of a seizure caused by a high fever but was saved by an EMT-trained guard.[1] The government’s self-congratulatory article about its “humanitarian mission” not only overlooked the fact that the facility had failed to provide the child with adequate medical care to treat the fever, but even admitted that the toddler was taken, not to a hospital, but to the dispensary – all that is available to the 500+ mothers and children held at Artesia. It was the final straw.

After reading this horrifying story and reports of ICE’s neglectful and shameful treatment of the mothers and children they have held without bond for over 3 months in the makeshift trailers encircled by barbed wire, my colleague was livid. Unable to sleep, he emailed me at about 3AM.

“Immigration Judges should give considerable weight to evidence of these poor conditions. What do you think?” his email read.

A long-time immigrants’ rights advocate himself, my friend and colleague was wide awake. He queried rhetorically whether the pro bono attorneys representing the detainees through the American Immigration Lawyers Association (AILA) Pro Bono Project should be filing “massive detention conditions evidence” in every bond redetermination case seeking their release from custody. He asserted that the unhealthy, repressive, and family un-friendly conditions in which the mothers and children are detained (glossy public relations videos of the Artesia detention facility notwithstanding), should be a significant factor in an Immigration Judge (IJ)’s analysis whether depriving these moms and kids of their liberty is justified. These conditions of detention, he opined, are a persuasive counterweight to ICE’s misguided contention that continued custody and high, impossible-to-pay bonds will effectively deter others jn Central America from fleeing the pervasive violence, poverty and persecution in their countries.

I’m sure it was no surprise to him that I was working at that late hour, putting the final touches on a practice advisory for the pro bono volunteers tirelessly representing the mothers and children in Artesia. “I doubt that IJs will find that the Artesia detention conditions, no matter how inhumane or deleterious, are sufficient to overcome the specter touted by ICE, albeit erroneously, of a migration movement posing a national security threat to the U.S.” I skeptically replied by email.

I told him that I agreed that conditions in Artesia are offensive to international refugee standards that prohibit penalizing individuals who are fleeing persecution and must cross borders in search of surrogate protection from a country such as the United States, which is a signatory to the United Nations Refugee Convention and Protocol. Indeed, I would argue that detaining such a vulnerable population in the miserable and restrictive conditions existing at Artesia violates the provisions of the Refugee Act of 1980, our own domestic statute, which authorizes persons fleeing persecution and threats to their lives and safety to apply for asylum at a U.S. port of entry or land border.

However, I wrote back cynically, “that humanitarian promise obviously has been abrogated to some extent by the requirement that an asylum seeker must first pass the ‘credible fear test’ to access our asylum system.” That, and the fact that most, if not all, U.S. government officials deny that any aspect of our domestic law is meant to fulfill either the letter or the spirit of the United States’ international humanitarian obligations. Oh well.

My colleague pressed forward nonetheless, “what about the evidence of conditions?”

“I haven't reviewed all the specific custody conditions,” I emailed back, and besides, “I‘m not sure that egregious conditions overcome ICE’s objections to release or how an IJ would balance these factors. Clearly, detention itself isolates asylum seekers and handicaps them in seeking legal representation and being able to prepare their cases properly. It even may deter them from hanging in there to pursue relief, especially when they and their kids are so miserable and sick.” Barely awake, I asked, “Is there anecdotal evidence of any IJ decisions that rely on egregious detention conditions to undercut arguments in favor of maintaining custody?” And said good-night.

But my colleague would not be put off. By the time I returned to my computer the next morning, there was his rejoinder: “I disagree strongly. You are being too legalistic. All factors are relevant. Sympathy goes a long way in cases like this and it is important to make the historical record.”

Well, I concede that I am being legalistic, I replied, not taking offense. I also agree that as far as I can tell, the IJs have no idea of the actual conditions being endured by these poor mothers and their children. Or by their pro bono counsel, who are trying to provide excellent representation under challenging conditions.

So exactly what are these conditions anyway?

Part I. The “Family” Detention Facility

It’s difficult to capture in a blog, the reality of mothers with one, two or even three children, some of them infants and even new-borns, held captive in jail - yes, the facility is within barbed wire fencing, no visitors allowed, situated in a remote corner of the New Mexico desert, and the mothers and baby inmates alike are monitored 24/7 by uniformed guards. Young mothers and their children who left their homes behind reluctantly and fearfully, to embark on an arduous and terrifying journey. Young women of 22 or maybe 25 or 30, travelling alone through Mexico with their 2 year olds, their 5 years olds, their pre-teens, their babies.

It’s difficult to capture in words, the reality of young women who have suffered rape, torture, theft, assault, and even worse in their home countries and in the course of their flight to save their own and their childrens’ lives. And it’s equally hard to convey what it’s like to arrive here, exhausted and frightened, to be interviewed by border patrol officers who ask questions, write down responses and ask them to sign, and then to be flown to Artesia, to be told that they will be deported eventually.

Does anyone really think that these young mothers are audacious enough to have put themselves and their kids at risk in such a dangerous, violent, and unsympathetic world, but for the utmost necessity?

The mothers arrive scared, confused, and disoriented. They and their children are subject to the commands of strangers in uniforms. The children are often cold, always hungry, chronically sick, and subconsciously terrified, picking up on their own mothers’ fears and tears. The kids have no way of understanding the new rules: that playing with other kids is bad, that crayons can be “contraband,” that feeling hungry or tired is bad, that crying or screaming or running around can get their mothers in trouble. The mothers are constantly surrounded by screaming children and babies (which would drive me stark raving mad), and routinely insulted, ordered around, taunted and called names by the guards. And they can’t do anything about it.

As reported by the pro bono lawyers who represent them, the mothers and children in Artesia are residing in anything but family friendly conditions. Rather, they are held in jail-like conditions, poorly operated and maintained jail-like conditions. Deborah S. Smith, one attorney who volunteered at Artesia over the summer, reflected upon reading the September 19th ICE article, “ I am appalled that ICE can refer to Artesia as a ‘humanitarian mission,’ and allege that it has an ‘open environment.’ Nothing in or about Artesia is ‘open’ or ‘humanitarian.’”[2]

“Everything is controlled by the guards, both for the detainees and the legal volunteers. Everything. Including what we eat, where we walk, when we walk, when we come, when we go, where we sit, and on and on. When I was there, the playroom was never used . . . at that point it could only be used by a child whose mother was in a hearing or interview. A guard was the daycare provider. What kind of mother is going to leave her young child alone in a trailer with only an unknown ICE guard to watch over the child? No responsible parent would do that. In the real world, parents can get investigated by Family Services for leaving their children with total strangers who may be irresponsible or untrained, or worse. The playroom is window dressing.”

She continued, “Medical care is a joke. Educational services remain non-existent. And social workers? Did I really overlook the availability of such professionals on the ground who could counsel our clients? I regret doing so because every single one of the women and kids could have benefitted from a supportive shoulder."

And the children are getting sicker, not with the dread diseases that some phobic American citizens feared they were bringing into our country, but with colds, sore throats, and viruses that they caught here in the U.S., in Artesia. The children are running fevers constantly, not eating, losing weight and losing vitality. Yet, visits to the Artesia “dispensary” result in nothing more than advice that children who wake up in the middle of the night with nightmares, fever, and coughs, try ”breathing.” It was no accident, but a predictable event, that children left untreated for chronic colds and fever would experience life-threatening febrile seizures.

(To Be Continued . . . )

[1] See News Release of September 19, 2014,“ERO, HSI share a humanitarian mission at ICE Family Residential Facility in Artesia, New Mexico,” (On file with author via Google cache as it appeared on Sep 24, 2014 12:57:36 GMT. No longer available on ICE’s website).

[2] Email from Deborah S. Smith, Esq. on file with the author.

(c) 2014. All rights reserved. Lory D. Rosenberg

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Updated 10-03-2014 at 02:03 PM by Lrosenberg

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