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Locking up Families and Children without Lawyers




by Martha Barnett, President, American Bar Association

A Guest Editorial from the American Bar Association

I recently had an eye-opening experience during a stop in Chicago, in which I had the opportunity to visit an immigration detention center for children - yes, for children - of all ages, from a number of countries.

Until this visit, I was unaware of the extensive, hidden world of immigration detention. Adult and children "detainees" have become the fastest growing incarcerated population in our country as a result of the draconian 1996 immigration laws mandating the detention of asylum-seekers and immigrants. They total more than 200,000 annually at over 900 sites, the majority of which are county jails. At least 5,000 detainees are children, one-third of whom are held in juvenile correction facilities - - often commingled with juvenile delinquents due to the lack of bed space in non-profit shelter care facilities.

As an American, this deprivation of liberty, this de facto incarceration of asylum-seekers is shocking. Asylum-seekers whom I met during my visit included Dahir Nur. Dahir is a young man from Somalia who fled after his sister was killed by Islamic fundamentalists. He sought the promise of safety and shelter in the United States. But instead of freedom, Dahir was detained for nine months in DuPage County Jail outside Chicago while he fought his case for legal protection as a refugee. For two days he was forced to testify in the immigration courtroom while bound in shackles.

As a lawyer, I was stunned by the detainee population's pressing need for legal representation. Without the right to government-appointed counsel, 90 percent of detainees go unrepresented in their often compelling claims for asylum, green cards, or other relief such as U.S. citizenship. The stakes are high in these cases, especially for those asylum-seekers who face torture or death if deported. Immigration court proceedings are adversarial. The government is represented by its attorney but often the detainees are unrepresented. Statistical and anecdotal evidence tells us that having a lawyer makes the difference in whether people can win their cases for asylum. For children to be forced to navigate these legal proceedings without an advocate is especially harsh.

As a parent, I was concerned seeing children as young as four years old detained without their parents. Families who apply for asylum are routinely separated. I met a couple from South America who fled persecution only to be separated and detained for months at different jails in the Chicago area. The wife was five months pregnant. She and her husband did not know where the other was held and they did not see each other until they were released, two and a half months later.

Mothers, fathers and children can be detained in different facilities, unaware of the condition or whereabouts of their missing family members and unable to communicate with one another. I can hardly imagine the difficulty of preparing a legal case for asylum when you have been forcibly separated from other family members, or the horror of knowing that your children are alone, afraid and beyond your comfort? Our government should consider alternatives that would allow families to remain together throughout the immigration process.

While I was in Chicago, the ABA recognized those lawyers who have represented immigrants. I also called on the private bar to volunteer more of their time and talent to represent adult and children newcomers to our nation as part of their pro bono ethic as lawyers. I have also asked that we look at programs that will provide guardians ad litem to children in appropriate cases.

I believe these dedicated pro bono lawyers can help meet the need for legal representation for detainees, but I know that they alone cannot end this crisis. Unless and until there is a material change to our laws and immigration detention policies, the business of immigration detention will continue to grow at increased taxpayer expense - - and untold stories of suffering.

Editors: For verification, or to receive this via email, contact Dave Jaffe, ABA Division for Media Relations and Communication Services, 312/988-6139. This editorial also is available on the Web at