Contemporary Family Detention and Legal Advocacy
136 Harvard Latinx Law Review Vol. 21
30 Pages Posted: 25 May 2018
Date Written: May 16, 2018
This essay explores the contemporary practice of detaining immigrant women and children — the vast majority of whom are fleeing violence in their home countries and seeking protection in the United States — and the response by a diverse coalition of legal advocates. In spite of heroic advo- cacy, both within and outside the detention centers from the courts to the media to the White House, family detention continues. By charting the evolution of family detention from the time the Obama Administration resurrected the practice in 2014 and responsive advocacy efforts, this essay maps the multiple levels at which sustained advocacy is needed to stem crises in legal representation and ultimately end family detention.
Due to a perfect storm of indigent detainees without a right to appointed counsel, remote detention centers, and under-resourced nonprofits, legal representation within immigration detention centers is scarce. While the Obama Administration largely ended the practice of family detention in 2009, the same administration started detaining immigrant families en masse just five years later. In response to the rise in numbers of child migrants seeking protection in the United States arriving both with and without their parents, and with the purported aim of deterring future flows, the Obama administration reinstituted the policy of detaining families. The Ad- ministration calls these detention centers “family residential centers,” while advocates use the term “baby jail.”
The response from the advocate community was swift and overwhelming. Lawyers and law students from all over the country traveled to the detention centers, in remote areas of New Mexico and later Texas, to meet the urgent need for representation of these asylum-seeking families. This essay calls for continued engagement by attorneys throughout the nation in filling the justice gap and providing representation to these asylum-seeking families and other detained immigrants.
The crisis in representation for detained immigrants is deepening. Given the success of intensive representation at the family detention centers discussed in this article, advocates are beginning to experiment with the same models in other locations. For example, at the Stewart Detention Center in Lumpkin, Georgia, the Southern Poverty Law Center, in conjunction with four other organizations, launched the Southeast Immigrant Free- dom Initiative in 2017. This initiative enlists and trains lawyers to provide free legal representation to immigrants detained in the Southeast who are facing deportation proceedings. The American Immigration Lawyers Association and the American Immigration Council have partnered to create the Immigration Justice Campaign, where pro bono attorneys are trained and mentored when providing representation to detained immigrants in typically underserved locations. Given the expansion of the volunteer model of providing legal services to detained immigrants, opportunities will continue to arise for lawyers, law students, and others to engage in crisis lawyering and advocacy. This article provides the background to understand the government’s practice of detaining families, to the extent that it can be understood, and to emphasize a continuing need for legal services for this population.
The introduction explains the population of asylum seekers and the law and procedure governing their arrival, detention, and release into the United States. The essay then traces the evolution of the U.S. government’s most recent experiment in detaining families from the summer of 2014 to present. The next part outlines the access to counsel crisis for immigrant mothers and children in detention and highlights the difference that representation makes. The article concludes with a call to action to attorneys and non-attorney volunteers nationwide to commit and re-commit to providing services to detained immigrant families and individuals.
Keywords: immigration, asylum, clinical teaching, service-learning, crisis lawyering, detention, family detention, advocacy, pro bono, law schools
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