The U.S. Supreme Court, after more than a year of legal proceedings, has decided not to hear a case involving asylum-seeking mothers and children who may now be deported immediately.
In November 2015, 28 women and 33 children from El Salvador, Honduras, and Guatemala filed the habeas corpus lawsuits that comprise Castro v. Department of Homeland Security, alleging that they had failed their “credible fear” interviews for asylum because their full cases were not heard by an immigration judge.
A “credible fear” interview takes place at least 48 hours after an asylum seeker arrives at a detention center, according to U.S. Citizenship and Immigration Services (USCIS). An asylum officer must determine whether the asylum seeker has legitimate reason to fear persecution or torture in their country of origin. USCIS reports that after an asylum seeker is taken into Immigrations and Custom Enforcement custody, they are given an orientation on the “credible fear” process along with a list of pro bono legal service providers. That was not the experience of many asylum seekers detained at the Berks County Residential Center in Pennsylvania, as Rewire reported.
The families wanted another chance to remain in the United States and challenged the rejection of their asylum claims, alleging their right to due process was violated. In August, the Third Circuit Court of Appeals said the women were to be treated “the same way as non-citizens seeking initial admission to the United States, who do not have any constitutional rights of review if denied entry,” Reuters reported. The women appealed to the Supreme Court.
Now that the case isn’t moving forward, the 12 family members detained inside Berks, one of the country’s three family detention centers, may face deportation.
The families involved in the Castro case were detained after crossing the southern border, according to NBC Philadelphia. During their credible fear interviews, they were primarily asked “yes” or “no” questions, sometimes not in their native languages, and were often cut off mid-sentence, NBC reported. They were returned to detention to await deportation after failing to prove credible fear.
Eric Ferrero, an Amnesty International spokesperson, told Rewire that there’s still a chance those involved in the case will be able to see an immigration judge.
“While the Supreme Court decided not to hear case, that doesn’t mean that they can’t still have the opportunity to have their cases heard in an immigration court, and we hope they will. It has to be understood that these families—including the 14 still in detention at Berks—have never been able to present their cases in court,” Ferrero said.
Women detained in Berks launched a hunger strike last year after then-Secretary of Homeland Security Jeh Johnson said the average length of stay in family detention was 20 days. The women who launched the strike had been detained in the facility with their children, ranging in age from 2 to 16, for between 270 and 365 days, as Rewire reported. Some of the teens in the facility reported being suicidal.
Besides holding asylum-seeking mothers and children indefinitely, Berks has a history of human rights abuses. A former counselor at Berks was sentenced to between six and 23 months of jail time for the repeated sexual assault of a 19-year-old asylum-seeking mother. The young woman, along with her 3-year-old son, fled sexual domestic violence in her native Honduras. The assaults on the young mother at the detention center were witnessed by at least one of the children detained with her.
Women and children detained inside Berks—including 12 who are part of the Castro case—may be being held unlawfully.
A federal appeals court in July 2016 ordered the Department of Homeland Security (DHS) to end family detention because it violates Flores v. Johnson, which determined that children arriving to the United States with their mothers should not be held in unlicensed detention centers. Soon after, family detention centers scrambled to get licensed as child-care facilities—a battle that is ongoing in Texas, where the two remaining family detention centers are located. But the Pennsylvania Department of Human Services licensed Berks to operate as a children’s delinquency center. In October 2015, Pennsylvania DHS officials decided not to renew the license, which would have expired on February 21, 2016, because the facility holds asylum-seeking families as opposed to only children, as the license permitted. Berks appealed the decision to not renew its license, and continues to operate until it receives a ruling on that appeal.
Ferrero said he is hesitant to comment on whether these detentions are unlawful. He said Amnesty International sent a team of researchers to Berks to investigate the conditions inside the facility and that they were “shocked and appalled” by what they discovered.
“In every way possible, we need to demand accountability,” Ferrero said. “When people come to this country seeking asylum, they are entitled to a fair hearing, this is an international agreement and obligation we have. These folks still have not been given their day in court and we don’t know what’s going to happen to them. They could get deported, they could be detained indefinitely. The not knowing is such a big part of the problem. What they’re going through is horrifying.”