The U.S. Third Circuit Court of Appeals has delivered a major setback to the 28 immigrant mothers and their children detained in Pennsylvania seeking asylum in the United States.
It’s a case that immigration advocates say could set a troubling precedent for those crossing the border illegally for refuge, while lawyers for the U.S. Department of Justice maintain that the undocumented families should not be given their day in court.
The mothers and their kids from El Salvador, Honduras and Guatemala say they were escaping gang wars and domestic violence when they crossed the border last year into Texas.
They were immediately arrested and screened to see if they were fleeing a credible threat. Government officials determined that were not, which finalized their removal orders.
In response, attorneys for the families filed paperwork arguing that they were being detained unlawfully, or a habeas petition in attorney parlance.
Now, three judges with the U.S. Court of Appeals have rejected their petition on technical grounds, saying that the families do not have Constitutional rights since they entered the U.S. illegally.
The families remain in limbo at the Berks County Residential Center, about 70 miles northwest of Philadelphia. The facility is just one three sites nationwide that house mothers and their children awaiting deportation. In January, state officials revoked its license. And some of the families have been on a hunger strike protesting their detainment for months.
“We are sympathetic to the plight of petitioners,” Judge D. Brooks Smith wrote. “Nevertheless, Congress has unambiguously limited the scope of judicial review, and in so doing has foreclosed review of petitioners’ claims.”
In other words, a court can only get involved in a federal removal order in very few cases, and these families are not in that subgroup.
Officials say because they entered illegally, they need to be sent back to their home countries.
ACLU attorney Lee Gelernt, who represented the families, disagrees.
“By definition, asylum-seekers can’t wait around in their countries looking for their papers and waiting for their visa to come through,” Gelernt said. “They have to flee immediately. Any parent would do that on behalf on their child, if they faced the type of horrific abuse, and possible death, that these women and children were facing.”
The issue that made it all the way to the Third Circuit, which is one step below the U.S. Supreme Court, is rather narrow. It’s not focused on whether the families should be given asylum, but on a deeper legal question: If someone crosses the border illegally, does one automatically have Constitutional rights?
That’s been debated in many cases over the decades. Here, though, the court concluded that the families do not have legal protections.
Some prisoners at Guantanamo Bay, Cuba, have been given court hearings, the judges noted. That’s enough to argue that the law isn’t being applied evenly, according to Gelernt.
“It’s perverse to suggest that those enemy combatants are entitled to habeas corpus, but not these women and children who are on U.S. soil,” he said.
Gelernt said the deportations are on hold pending their appeal, which advocates say may have a spot at landing in front of the country’s highest court.
In the opinion, Judge Smith wrote that the issue of whether denying an undocumented immigrant the right to a habeas hearing violates federal law was, before the court’s decision on Monday, an unsettled matter. It can, however, still be reviewed by the U.S. Supreme Court.
“This is a very difficult question that neither this court nor the Supreme Court has addressed,” Judge Smith wrote.
Harvard Law professor Gerald Neuman, who was part of an amicus brief in the case arguing that the families should be granted a court hearing, disputes the past cases the judges relied on in the decision. Different precedent-setting cases, he said, should have been emphasized.
“The Constitution gives almost all of its protections to people who are inside the United States, regardless of how they got here,” Neuman said.
Many cases of expedited removal, he said, happen at airports during which undocumented immigrants are processed in secret parts of the facility and do not have the ability to raise any challenges.
“This is really the first case where there’s been a serious test of the ability of someone inside of the country to challenge expedited removal,” Neuman said.
A spokesman for the Department of Justice declined an interview request.