The 3rd U.S. Circuit Court of Appeals is considering a case that aims to shore up the right for asylum-seekers to appeal deportation orders to a judge.
When people fleeing violence cross the southern United States border and file for asylum, federal immigration agents vet their claims.
In Rosa Elida Castro vs. the Department of Homeland Security, 28 Central American women and their children — represented by the American Civil Liberties Union — say they were not evaluated fairly and would like to be able to refute the outcome before a federal judge under the writ of habeas corpus.
Twenty of the families are held in the Berks County Residential Center, one of three facilities nationally where families are detained on behalf of federal immigration agents.
Under the U.S. Constitution, the writ of habeas corpus guarantees prisoners the right to have their case reviewed by a judge. It has also been applied to removal orders, said Lee Gelernt, lead ACLU counsel in the case.
“There has never been a time in the history of this country in which someone did not have access to the federal courts to challenge the legal validity of the removal order if they were on U.S. soil,” he argued on May 19, before a panel of three appellate judges.
U.S. District Court Judge Paul Diamond dismissed the case earlier this year, saying the ACLU’s claims “generated more heat than light” and with the rationale that this question is beyond his jurisdiction.
For its part, the Department of Homeland Security said it already does enough to give asylum-seekers a fair process, through its own internal judicial processes. It also posits that people picked up within a certain distance of the U.S. border, or after only a short duration in the country, may undergo an expedited process for removal.
What’s more, said lawyer Erez Reuveni who represents the Department of Homeland Security, the financial burden of extending judicial review to applicants is just too great.
“Fifty thousand people make these claims every year,” he told the judges. The ACLU maintains that costs are not grounds for failing to deliver on constitutional rights.
The backdrop of this case is the swell of tens of thousands of Central American minors and families who have fled gang violence in El Salvador, Guatemala and Honduras for the United States over the last three years. Many file asylum claims, but the federal definition of asylum is less clear in how it applies to their situation, as opposed to a civil war or ethnic conflict.
“This is a tough case, the panel will take it under advisement,” said Judge D. Brooks Smith, following oral arguments.
The families can stay in this county — in detention — pending that decision.