Detention as deterrence
Faced last summer with a new wave of Central American mothers and their children illegally entering the U.S. from Mexico, the Department of Homeland Security came up with a new immigration enforcement strategy designed, in part, to deter others from making the same trip. In doing so, the department broke the law.
Before the new policy took effect, migrant mothers with children who were taken into custody at the border were offered the opportunity to show that they were fleeing persecution in their home country. Those who could demonstrate a “credible fear” were usually released on bond or under other arrangements to ensure that they’d return to immigration court for a fullfledged asylum hearing.
But in June, as the number of mothers with children surged, the government suddenly began detaining even those who were granted an asylum hearing. In December, it opened a new 2,400-bed facility in rural Texas to increase its ability to house them. The stated purpose: to send a message to others in Central America that if they tried to make the trip, they would be caught, detained and eventually sent home.
Unfortunately for the government, that strategy is illegal, U.S. District Judge James E. Boasberg ruled this year. The Obama administration has asked the judge to reconsider his ruling, likely a precursor to a full appeal. But the judge’s original decision was the correct one.
The administration argues, among other things, that it has no blanket policy of detaining people to deter the actions of others, and that it uses deterrence only as one of several discretionary factors in determining whether to detain or release mothers with children. But the government’s numbers suggest something else. According to Boasberg’s ruling, over six months last year the government released only 32 mothers and children while detaining 2,602. So if it’s not a policy in fact, it is in deed. And it is wrong.
The government has both the right and the responsibility to secure the border and enforce the nation’s immigration rules. To that end, the law allows it to detain people accused of being in the country illegally if it fears they won’t show up for court or that they pose a threat to public safety.
But the law also allows asylum seekers — many of whom are fleeing life-threatening conditions in their home countries — to come to the U.S. and make their case for entry. If they pose no threat and are expected to return for their hearings, it is both morally and legally wrong to lock them up as a matter of policy simply in an effort to deter others from coming. The Department of Homeland Security should drop its legal defense of a patently unjust policy.