Since the surge of asylum seekers arriving at our Southern border began in 2013, the number of people held in family detention has increased dramatically. Men, women (including pregnant women), children, and infants are kept in secure facilities—jails—while their asylum cases are adjudicated. There have been plenty of issues at these facilities: Allegations of physical, sexual, and psychological abuse by guards, inadequate food, suicide attempts. A recently-filed lawsuit claims that people are kept in freezing, overcrowded, and unsanitary cells. Many immigration advocates have been calling for an end to family detention, and recently 33 U.S. Senators signed a letter requesting a halt to the practice.
Powder blue is the new black.

On the other side of the debate are those who believe that family detention does not go far enough. They argue that allowing anyone to arrive at the border, request asylum, and then receive entre into the United States is an abuse of the system, a threat to our security, and an inducement to others—many others—to try the same thing. The restrictionists, led by several House Republicans, believe that permitting asylum seekers into the United States is tantamount to an open borders policy: Anyone who wants to come to the U.S. need only say the magic words—“I am seeking asylum”—and they will be granted admission.

Is this, then, our only choice? Either we detain everyone who arrives here until their cases are finally decided, or we throw open our borders to all comers?

I can imagine circumstances where it would be justified to detain arriving asylum seekers--including children--and I think it is worth exploring the possible justifications, and whether they are legitimate. Let's take a look at some of the reasons for family detention and whether they are justified:

1. Some of the people coming here are dangerous, and since we don't know who the bad guys are, we should detain everyone
- Detaining an asylum seeker (or any arriving alien) who poses a danger to the U.S. is perfectly legitimate. Given how little we know about people seeking entry at the border, it makes sense to be cautious when releasing people from detention. But in the case of detained families, it is highly unlikely that mothers and children present a threat to our country's safety. For the most part, I don’t think the U.S. government views mothers and children as a security issue, and I don’t see how the widespread detention of such people can be justified on these grounds.

2. The only way to deter migrants from making the risky journey to the U.S. is to stop rewarding them with admission into our country
– This argument at least has the pretense of concern for the migrants’ safety. Indeed, a bill floating around the House of Representative, which would make it more difficult for unaccompanied minors to seek asylum in the United States, is called the Protection of Children Act. Of course, the journey from Central America to the U.S. can be dangerous (though the danger is far less than that faced by asylum seekers who cross the Mediterranean to Europe). Despite its superficial good intentions, my feeling is that this argument is simply a pretext to keep people out. If lawmakers really cared about the fate of the young people coming to the U.S., they would ensure that each person receives a complete and fair hearing on the merits of her case.

3. Most Central American asylum seekers have weak cases, and so they will eventually be deported. If we allow them in, they will disappear and not abide by their removal orders
– The validity of this argument depends largely on how frequently non-citizens abscond. As usual, we need more data to be sure, but Immigration Court statistics indicate that since 2005, only about 60.9% of minors appear for their court hearings (the appearance rate has improved somewhat in the last few years, and represented juveniles are much more likely to appear (92.5%) than unrepresented (27.5%)). Given that a significant percentage of unaccompanied minors will abscond, this seems to be a legitimate argument in favor of detention.

To make matters worse, many of the asylum seekers coming from Central America have weak cases and—assuming they appear for their hearings—they are likely to be ordered removed. While this argument presents a real challenge to immigration advocates, there is, I think, a more humane (and less expensive) response than jailing families.

Alternatives to detention ("ATD")--such as electronic monitoring, bond, and intensive supervision (via telephonic or in-person reporting)--are effective ways to improve court-attendance rates. A recent GAO report indicates that between 95 and 99% of aliens on one ATD program reported for their hearings (the report also indicates that more data is necessary to fully evaluate the program). If more resources were shifted from detention to ATD, it would likely become an even more effective method of ensuring aliens' appearance in court.

Also, while asylum cases from Central America are often legally weak, many of the applicants have a very legitimate fear of persecution in their home countries. The problem is that the fear of harm (from gangs, cartels or domestic partners) does not easily fit within a protected category for asylum. I remember one case where I did a bit of pro bono work: A gang member wanted to date the applicant’s sister. When the parents refused, the gang murdered most of the family. Applicant escaped the massacre and came to the U.S. An Immigration Judge denied asylum because the case did not fit into a protected category. That decision was ultimately reversed (by a federal court), but it illustrates the problem—just because you do not fit neatly into a protected category does not mean that you will be safe in your country. Because of the high stakes involved and the difficulty of demonstrating a “nexus,” asylum cases from Central America often need more—not less—attention from decision-makers and advocates. When applicants are detained and their cases are rushed through the system, it is often impossible to ensure that due process is respected and that we are fulfilling our humanitarian obligations (and sometimes, the results are deadly).

4. If we allow the migrants to enter, it will only encourage others to follow
– Our geographic isolation has resulted in relatively few people seeking asylum in our country (compared with, say, Jordan, South Africa or Pakistan). This has allowed us the luxury of an elaborate (i.e., expensive) asylum system. Our system is not designed to handle large numbers of applicants, and indeed, the surge has threatened “the system” in at least two ways: (1) Delays throughout the system have become so interminable that many applicants simply cannot wait for a decision. Some are separated from close family members; others are under great psychological pressure. These delays—measured in years--have proved too much for many applicants, and they have left the country for fates unknown; and (2) The large numbers of arriving aliens have also attracted Congressional attention, and several bills have been introduced that would curtail the rights of asylum applicants.

The question here is whether detaining families and rushing court cases will deter would-be migrants, and thus save "the system."

As a general principle, I think it is a bad idea to deny certain asylum seekers due process in order to preserve the system for other asylum seekers. Part of the problem is that we have never had a real debate about who should qualify for asylum. Victims of gang violence and domestic violence are not traditional asylum seekers. Such people qualify for asylum as a result of creative lawyers pushing the boundaries of the law. Perhaps if there had been a rational policy debate about whether such people should qualify for asylum, or whether we should offer them some other type of humanitarian protection, we would not be faced with our current dilemma.

Finally, I doubt that the restrictionists will ever be satisfied with President Obama's efforts related to border enforcement. Trying to preserve the asylum system by appeasing such people is pointless. While I believe we need to decide, as a country, who we will offer asylum to, I am not convinced that detaining families will convince those who oppose the asylum system to change their minds.

In the end, while I believe there are reasonable arguments supporting family detention, I am not convinced. Given the alternatives to detention, we can better fulfill our humanitarian obligations and protect our borders without detaining families and children.

Originally posted on the Asylumist: