The study shows that, despite the administration’s claims, Trump and his agents do not have to indefinitely detain immigrant families. It is legal to apply for asylum. And immigrant families want to adhere to the law and show up to their immigration court hearings, but bureaucracy, government inefficiency, and bad actors often get in the way.
As Lind explains:
Many families are trying to keep up with their cases, but are thwarted by bad information or unclear directions
…Some families missed their court dates because of confusion, often exacerbated by the effects of trauma from their home countries or other mental illness. Or because they worried that Immigration and Customs Enforcement (ICE) would arrest them if they showed up to court.
But in a lot of cases, a parent thought she was doing everything right and it just wasn’t enough.
..In one case CLINIC and ASAP encountered, a parent changed her address with ICE, but ICE didn’t tell her that she had to update it separately with the immigration court. So she missed the notice of her hearing date, and then missed the hearing. Another parent was told after she moved that she had a hearing in July 2016, only to discover too late that she’d missed a hearing she didn’t know about in August 2015.
Swapna Reddy, Co-Director of the Asylum Seeker Advocacy Project, said, “We must fight to keep families together, but NOT in detention. The only winner from a policy of detaining families is the private prison industry. Our report exposes the Trump administration’s excuse for detaining asylum seekers for what it is – an excuse to put more obstacles in the way of mothers and children seeking asylum.”
As Lind notes, the study also documents nonpunitive solutions to this issue:
In some cases that CLINIC and ASAP found, particular people were to blame: immigration judges who refused to move hearings, ineffective or fraudulent attorneys who got notices of court dates but simply never told their clients. But often, the advocates blame “structural and bureaucratic obstacles” — a system that is simply too complicated to allow families who want to show up to court to successfully do it.
When these obstacles are discovered, it’s often possible to fix the problem. ASAP and CLINIC challenged 46 in absentia removal orders, on behalf of 22 families, by the end of 2017. Ninety-six percent of the time they successfully got the government to reopen the family’s case.
These are probably the most compelling cases the advocates found. But they are a strong indication that at least some of the people who have been ordered deported because they didn’t show up to court are, in fact, trying to go through the asylum process the right way.
The Trump administration could adopt this as a premise of its asylum policy. It could use more discretion in figuring out which families are particularly likely to abscond, and focus enforcement resources on them, while making sure families who wanted to apply for asylum got the information they needed to do it outside of detention.
The administration could do a better job of coordinating between agencies so that migrants only needed to update their addresses once. It could adopt a case-management approach that assumed that people are trying to get through the system the right way and simply need a little help navigating it.
The Trump administration has not done that so far. It has instead adopted a blanket approach that assumes that any given family will evade the law if given the chance. It’s fighting in court to keep families under physical control in detention for as long as their cases take, while pressuring judges to speed up those cases so they can be deported more quickly, rather than ever getting released. And, when it fails, the administration is claiming that lawlessness is inevitable.
That’s the choice the administration has made. It’s the most punitive option available to them. It’s not necessarily the one best suited to the problem.
According to Michelle Mendez, Manager of the Defending Vulnerable Populations Program at CLINIC, “Detaining and prosecuting families who fled persecution to seek asylum is not the way to ensure they appear in court. This report highlights that what asylum seekers need is guidance, case management, and legal counsel to help them understand the United States’ complicated immigration system and present their claims in immigration court.”