Problems With Detaining Children Evident in New Mexico Center
July 29, 2014
Detaining immigrant families is unnecessary and cruel. Instead of funding additional detention beds, Congress should be adding immigration judges and improving access to legal counsel to make the asylum process fairer and more efficient.
Clara Long, US researcher

(Washington, DC) – The US Congress should support greater due process protections for migrant families rather than increasing funding for facilities to detain those crossing the US southern border, Human Rights Watch said today. In the last week of July 2014, Congress is expected to debate supplemental appropriations requested byPresident Barack Obama on July 8 for 6,350 additional detention beds for undocumented migrant families with children.

Human Rights Watch visited the newly opened 672-bed family detention center in Artesia, New Mexico on July 22, and documented serious human rights abuses there. These included due process concerns and obstacles to people seeking asylum, as well as the risk of harm to children from prolonged detention.

“Detaining immigrant families is unnecessary and cruel,” said Clara Long, US researcher at Human Rights Watch. “Instead of funding additional detention beds, Congress should be adding immigration judges and improving access to legal counsel to make the asylum process fairer and more efficient.”

Senator Barbara Mikulski, chair of the Senate Appropriations Committee, released an emergency funding proposal on July 23 that includes $586 million for the “detention, prosecution, and removal of undocumented families.” The House of Representatives is expected to vote on its own smaller emergency funding package this week. If Congress approves additional funding, it would only increase the number of families and children who could be detained for prolonged periods in places like Artesia.

Since October 2013, federal officials have detained more than 55,000 migrant parents and their children. This is an increase of nearly 500 percent from the previous 12 months. The administration contends that this influx justifies an expansion of family detention to deter families from crossing into the United States. But available evidence shows that detention is not a deterrent to irregular migration, Human Rights Watch said.

“Jailing immigrant children is hardly in their best interest,” Long said. “Cost-effective, humane, and reliable alternatives to detention are used around the world and have been found to benefit government and the community, as well as children.”

Rights Concerns in the Artesia Detention Facility

As of late July 2014, the Artesia facility housed 287 families from Guatemala, Honduras, and El Salvador, with a total of 603 mothers and children, and no men. Half of the children were under six-and-a-half-years old, and many were toddlers or still nursing. Before the center opened in June, the only family detention center in the United States was the Berks Family Residential Service in Leesport, Pennsylvania, with 85 beds.

Many of the women and children detained in Artesia may be asylum seekers, trying to obtain protection as refugees because they fear being returned to a place where they would be likely to face persecution. Human Rights Watch interviewed seven women, all of whom said they feared for their lives if they were sent back to their countries.

Human Rights Watch observed serious barriers to a full and fair process for making effective asylum claims. Officials told Human Rights Watch that the cases of nearly all of the women and children detained in Artesia are being handled under the expedited removal process, which applies mostly to foreigners who arrive without proper travel documents who are apprehended at or near the border within two weeks of their arrival. They are not entitled to appear before an immigration judge unless an asylum officer finds during an interview that their fear of returning to their country is credible.

Asylum officers described to Human Rights Watch that interviews about eligibility for asylum are conducted with female detainees in the presence of their children. The children’s presence may inhibit women from speaking frankly, interfering with their ability to make their claim, and may further traumatize both the mother and her children, Human Rights Watch said. The practice should be ended immediately.

One woman awaiting an asylum interview told Human Rights Watch that she would only speak about the death threats she received from gangs in Honduras when her 8- and 11-year-old children were out of earshot.

In its guidelines on international protection for child asylum claims, the United Nations refugee agency, UNHCR, recommends separate and confidential interviews for all family members to give each an opportunity to discuss any independent claims for protection. UNHCR has also found that a lack of confidentiality could hinder the ability of women to fully access asylum procedures and recommended that “a confidential personal interview, that is gender and culturally sensitive, should be guaranteed in the asylum process, to help ensure access.”

“A woman isn’t going to want to discuss severe trauma or violence, including sexual violence and abuse, in front of her children,” Long said. “Compelling a woman to discuss that trauma in front of her children is not merely cruel, but could hurt her chances to get the protection she may desperately need.”

Asylum officials in Artesia told Human Rights Watch that they do not, as a matter of policy, screen children under 14 for asylum separately from their parents. The Convention on the Rights of the Child, to which the US is a signatory, states that children have a right to be heard “in any judicial and administrative proceedings affecting the child.” UNHCR, noting that children may have their own claims to asylum, has stated that children have the right to express their views in asylum proceedings through safe and child-appropriate procedures at all stages of the asylum process.

Detainees in Artesia also face nearly insurmountable obstacles in obtaining legal counsel. Under US law, the government does not pay for legal representation for asylum seekers and others in immigration proceedings. UNHCR guidelines say, however, that counsel should be available to immigration detainees as soon as possible after arrest or detention.

Detainees spoke to Human Rights Watch about their inability to get legal assistance. Though they were given a list of three legal service providers, those providers were hours away from Artesia and unable to represent the hundreds of detainees at the facility. “I need to find a lawyer but it seems impossible,” one woman from Honduras told Human Rights Watch. “I will die if I am sent back to my country.”

US officials in Artesia told Human Rights Watch that women and children who file for asylum in immigration court could be detained throughout the entire process, which can last months or even years. Such prolonged detention of children could do them serious harm, Human Rights Watch said.

The United Nations stated in 2012 that children should never be detained for immigration reasons, and that immigration detention can never be considered in a child’s “best interests.”

In its 2012 detention guidelines, UNHCR called for “alternative care arrangements” for children accompanying their parents, “not least because of the well-documented deleterious effects of detention on children’s well-being, including on their physical and mental development.”

Alternatives to prolonged detention can include electronic monitoring or supervised release, in which the head of the family checks in regularly with authorities – programs that are already in use for families in US deportation proceedings.

“Children in detention face anxiety, depression, and long-term psychological and emotional damage,” Long said. “It should never be considered in their best interests to lock them up.”

A Salvadoran woman who is detained in Artesia described the effect on her 2-year-old daughter: “She’s been so upset during the two weeks we’ve been here that I notice her losing weight. She just won’t eat.”

Detainees told Human Rights Watch that officials in Artesia punish children for misbehavior by imposing improper sanctions against entire groups. Several detainees said that guards had forbidden telephone access to all of the detainees in one of the barracks buildings for a day after they accused children of intentionally clogging the toilets.

“Group punishment that affects access to lawyers and family communication is a dangerous response for childish misbehavior,” Long said. “The problems caused by prolonged family detention are an argument for curtailing it, not expanding it as President Obama wants to do. Congress should be seeking alternatives that wouldn’t cause children further trauma or harm.”