Facing long odds, Berks detainees seek rehearing on asylum

After losing their case in the 3rd U.S. Circuit Court of Appeals last month, 28 Central American women and their children seeking asylum in the United States continue to fight for a judicial review, saying their constitutional rights are being ignored.

On Monday, the American Civil Liberties Union filed a petition for a panel of 3rd Circuit judges to rehear their case, “because the [3rd Circuit] Court’s decision conflicts with multiple rulings of this Court and the Supreme Court and raises questions of historic importance.”

The women fled gang and domestic violence in their home countries of Guatemala, El Salvador and Honduras and were picked up by U.S. border patrol shortly after entering the country. Near the border, immigration officers vetted their asylum claims and decided they didn’t meet the threshold of “credible fear” needed to stay in this country.

In the federal case, the women assert that under the constitutional writ of habeas corpus, they have a right to bring their asylum cases before a neutral judge before being deported.

“The Supreme Court made clear that even alleged enemy combatants held at Guantánamo, who have never set foot on U.S. soil, are entitled to invoke the writ of habeas corpus,” said Lee Gelernt, the ACLU attorney arguing the case.

In court documents, lawyers for the Department of Justice say the Guantánamo case answered a different question of law, whether the U.S. could detain persons without charges “indefinitely,” and that the women’s rights have been satisfied. DOJ representatives declined to comment for this story.

Nearly 70 habeas and immigration law scholars have signed amicus briefs in support of the women’s case.

“What the court is saying here is that if you’re apprehended a short time after you cross the border, it’s as if you never got into the United States,” said signer and University of Pennsylvania law professor Kermit Roosevelt. “That’s a pretty difficult line to draw and not what the Supreme Court has said and not what the Constitution says.”

The women and children are currently detained by Immigrations and Customs Enforcement in a Berks County facility, one of three centers the federal government uses to detain families who cross the U.S. border illegally.

All three have been the subject of protest and litigation, and the commonwealth of Pennsylvania has revoked the Berks County Residential Center’s license to operate in January, citing misuse. That decision is now pending an administrative appeal.

Last month, 22 women at the center went on a hunger strike to protest prolonged detentions.

If the rehearing is not granted, Gelernt said he will appeal to the U.S. Supreme Court. That body hears less than 2 percent of cases that apply.