Detaining Families: A Study of Asylum Adjudication in Family Detention

The United States currently detains more asylum-seeking families than any nation in the world, and the government is trying to further expand family detention. Sadly, this practice is not new. Since 2001, families have been held in detention as they pursue claims for protection. Until now, little was known about how detention impacts a family’s access to a fair process.  

Today, the American Immigration Council released Detaining Families: A Study of Asylum Adjudication in Family Detention, co-authored by Ingrid Eagly, Steven Shafer, and Jana Whalley. Drawing on thousands of government records over a 15-year period, the report highlights the multiple barriers to justice families seeking asylum face while in detention, as well as the important role the courts have played in protecting due process.

Here are some of the findings:

Families have been detained in remote locations, have faced barriers accessing the courts, and—despite valiant pro bono efforts to assist them—have routinely gone to court without legal representation. Detained parents and children rely on volunteers and nonprofit attorneys willing to travel to remote detention centers to provide pro bono representation, which is still insufficient to serve all detained family members. During the period studied, we found:

• Families were detained in remote locations, far away from urban centers and service providers. Almost all hearings in family detention (93 percent) were conducted remotely over video, rather than in a traditional face-to-face courtroom setting.
• Families released from detention were more likely to have legal representation. At the most recent merits hearings for families in our study, 76 percent of family members who had been released from detention were represented by counsel, compared to 53 percent of family members who remained detained.
• Barriers to obtaining lawyers in detention were particularly profound at the initial stage of proceedings, where only 32 percent of detained family members found counsel.

The vast majority of families released from detention showed up for court.

Despite the challenges posed by detention, family members pursued viable claims for protection and showed up for proceedings after release from detention. During the 15 years of our study, we found:

• Family members who were released from detention had high compliance rates: 86 percent of released family members (with completed and pending cases) had attended all of their court hearings that occurred during our study period. This rate was even higher among family members applying for asylum: 96 percent of asylum applicants had attended all their immigration court hearings.
• Family members who were released from detention and obtained counsel had a relatively high rate of success in their completed cases. Half (49 percent) of family members who were released and sought legal relief from removal with the help of an attorney were allowed to stay at the completion of their case. By comparison, only 8 percent of detained family members without representation had the same success in their cases.
• Case outcomes for families varied widely, however, depending on the jurisdiction in which their cases were adjudicated. In addition to the different asylum grant rates of judges in each jurisdiction, we find that disparities in case outcomes reflect broader jurisdictional inequities, such as the availability of local attorneys and the willingness of local prosecutors to grant a case closure based on prosecutorial discretion.

Families have been subjected to overdetention by immigration officials, and the courts have served as an important check and balance in this complex system.

Our study documents the often lengthy and wasteful process associated with detention. Our review of the government’s own data supplies ample evidence that families have been subjected to overdetention by immigration officials. The study further reveals the important role immigration courts can play in protecting due process—yet these checks and balances can vary considerably across different jurisdictions. This variability results in uneven access to justice for asylum-seeking families.

KJ