On the 516th day of their detention, Lorena (a pseudonym) and her 4-year-old son hoped the U.S. Supreme Court would allow a judicial review of their pending deportation to Honduras, where the murder rate is nearly ten times the global average.
“We came here after so much trauma,” she told Rewire, in an exclusive interview by phone from the Berks County Residential Center in Leesport, Pennsylvania. “It would be very difficult for us to return to the nightmare we lived before.”
But on Monday, the nation’s highest court rejected her request in a case brought by the American Civil Liberties Union (ACLU) on behalf of more than two dozen families, deciding instead that the executive branch is the sole judge in cases like hers that are fast-tracked through “expedited removal.”
The process relies on a brief interview with an agent who decides whether someone can prove “credible fear” of persecution if forced to return to their home country. If the answer is no, a person has one chance for review by an administrative judge with the Executive Office for Immigration Review, under the U.S. Department of Justice.
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“This is a devastating blow for these women and children, who now face the prospect of being returned to the abuse and danger from which they escaped,” said attorney Lee Gelernt, who is lead counsel in the case and deputy director of the ACLU’s Immigrants’ Rights Project. “We’ve always had a system in place where the federal courts had the last say when an individual’s liberty is at stake.”
The Obama administration used expedited removal primarily to deport immigrants apprehended at the border after spending less than 14 days in the country, including thousands of Central American families who flooded the southern U.S. border seeking asylum. In February, the Department of Homeland Security under President Donald Trump urged agents to use expedited removal in cases of undocumented immigrants who have lived in the United States for as long as two years.
Lorena and her son fled Honduras after repeated assaults by a gang member even after she sought police protection. She says they arrived at the Texas-Mexico border on October 24, 2015, and were taken into custody by U.S. Customs and Border Patrol and interviewed by an agent while she was “hungry and tired and cold.” She described her fear of retaliation, but he decided it was not “credible.” After a perfunctory review, an immigration judge upheld the decision to deport them.
“We were never given a chance to fully present our case,” Lorena insisted. “If they really reviewed it they would see I’m a mother who came here to save the life of my child.”
According to court records, on November 18, 2015, Lorena and her son were transferred to Berks and soon joined other families in the ACLU’s case. They’ve spent two Christmas holidays there because Immigration and Customs Enforcement (ICE) refused to let them live with family members in the United States during the appeals process.
In order to win their release to family members, they were told to demonstrate they would not pose a danger to public safety. But ICE categorically refused the requests, in some cases before lawyers had even submitted them. Despite this ordeal, Lorena and the others did not agree to be deported in order to leave the detention facility.
“If we didn’t have real fear we would not have stayed detained for 17 or 18 months,” she said. “We are still here because we are afraid of returning to the danger in our country.”
The United States Citizenship and Immigration Services’ own data shows the rate of approved credible fear interviews varies depending on their time and location. For example in July 2014, just 43 percent of applicants passed, while seven months later 93 percent were successful. Meanwhile, immigration judge decisions showed drastic discrepancies, with affirmance rates ranging from 8.5 to 100 percent.
The arbitrary screening process can have tragic consequences if someone with a viable asylum claim is removed. A forthcoming study by social scientist Elizabeth Kennedy of San Diego State University found at least 83 people were reported murdered after they were deported to El Salvador, Honduras, and Guatemala between January 2014 and September 2015. Many died within a year of their return, and the rate of such murders has continued to increase.
“I don’t think I’ll be able to sleep at night if I’m forced to return to Honduras,” Lorena said. “I’m a single mother and we are especially vulnerable.”
Immigration lawyers in Berks County who represent the families are now pursuing alternative avenues to protect those denied having their case reviewed by the Supreme Court. In 1990, Congress created the Special Immigrant Juveniles (SIJ) status for abused, neglected, or abandoned children who lack authorization to be in the United States. If granted, it offers a path to lawful permanent residence.
“We’re asking the agency to do the right thing and make sure we’re not sending kids back to death,” local immigration attorney Bridget Cambria told Rewire.
She and her colleagues applied for and received SIJ status for four of the children detained at Berks, including Lorena’s son. But even though U.S. Citizenship and Immigration Services gave them SIJ status, Cambria says “the enforcement side of Homeland Security argues nothing can stop their removal.”
“Any decision by ICE to vacate the minors previously issued expedited removal orders would solely be considered as a matter of prosecutorial discretion,” Acting Deputy Field Officer Michael Ramella wrote in a February letter to Cambria, “which ICE has declined to exercise.”
On Wednesday, a U.S. district court judge in the Eastern District of Pennsylvania heard arguments from both sides during a phone conference and issued a two-week temporary injunction to consider the complicated statutory issues at hand.
This is the same district where a different judge first ruled it is constitutional to bar judicial branch review of executive branch decisions in expedited removal cases, which the Supreme Court agreed with on Monday.
In the meantime, Lorena says she is “waiting for a miracle.”