A judge has stymied President Trump’s directive to detain illegal immigrants seeking asylum by issuing a preliminary injunction requiring individual hearings – to see if they pose a flight risk or a danger to the community – before they can be detained.
The order was issued by Judge James Boasberg, on the U.S. District Court for the District of Columbia, says public interest law professor John Banzhaf, who notes that Trump’s policies posed serious problems under international law as well as under U.S. laws, including the Constitution.
Banzhaf notes that, almost overlooked in discussions of this new indefinite incarceration policy, is that it might violate not only international law, but also specific international treaties which can be enforced in U.S. courts. Of particular interest are Article 14 of the Universal Declaration of Human Rights, and especially the Refugee Convention and Protocol to which the U.S. is a party.
Other treaties such as the International Covenant on Civil and Political Rights (ICCPR), which the U.S. has also ratified, prohibit arbitrary detention and the deprivation of liberty. The ICCPR holds that detention should only be used with an individualized determination of a need to detain, which should then be periodically reviewed by an independent court. A blanket detention policy for all illegal crossings apparently violates this principle.
Law professor Banzhaf has made these international law arguments to Judge Dolly Gee, U.S. District Court, Central District of California, who is considering whether to permit immigrants (including parents with children) whose only crime is crossing the border illegally, to be held indefinitely “during the pendency of immigration proceedings.”
Banzhaf told the judge that, using the words of the Flores Agreement which severely limits the time that children can be held, it is not “necessary” to physically detain entire families indefinitely, even under Trump’s new zero tolerance policy and the President’s opposition to a so-called “catch and release” system. Here’s how he put it in his brief amicus curiae filed today.
“But delay is not at all ‘necessary’ because the government has many well-tested and easily-scalable programs which would permit it to carry out its new zero-tolerance policy, thereby avoiding which has been termed a “catch and release” program, while at the same time not detaining children with or without their parents. Below are four such programs, and additional ones are noted in the references provided below.
ANKLE BRACELETS – For many years, immigration officials have used ankle bracelets with built-in GPS monitoring to keep track of certain subjects who are required to appear in court. The small units, attached to the ankle and incapable of being removed without detection, keep ICE apprised of the location of each person being monitored, and apparently can even send an alert if he moves beyond a certain range, or otherwise engages in movements which appears suspicious. The cost of this form of electronic monitoring is reportedly less than $5.00 a day per person, compared with hundreds of dollars a day to physically detain him, and much more if children are also to be detained with him.
CELL PHONE ONE – A second form of electronic surveillance uses a cell phone app called SmartLINK which works by requiring the subject to check in at specified times by cell phone, and permits the government to monitor people without physically detaining them or watching them at all times. To verify the identity of the person checking in via a cell phone, the app can use a photo check-in picture [photo ID system] as a biometric measure.
CELL PHONE TWO – Still another ICE cell phone check-in system uses voice recognition software, which reportedly is also highly accurate. Contractors provide telephonic monitoring for less than 20 cents a day, according to the Department of Homeland Security.
At least up until recently, the majority of undocumented immigrants detained at the border would be enrolled in Immigration and Customs Enforcement’s ‘ALTERNATIVE TO DETENTION’ program which utilizes these various types of electronic devices to monitor subjects who are required to report for a trial. This tech alternatives program works well, and reportedly has a 99.8% compliance rate, with virtually all of those being monitored showing up in court to receive justice. As of mid February, over 77,000 people were supervised under this program.
SOCIAL WORKERS – Still another method of insuring justice while avoiding physical incarceration of persons required to appear at a trial is known as the ‘FAMILY CASE MANAGEMENT’ program [FCMP], a program originally developed under the Obama administration in 2016, only to be abandoned by the Trump administration in 2017.
Under this program, immigrants were paired with social workers who helped insure that they would show up for their court dates. This program was almost as successful as the technical monitoring programs, with only about 2% of the immigrants failing to show up in court on time. However, its cost was slightly higher: $36 a day per person.
In summary them, it is not at all ‘necessary’ (in the words of the Flores Agreement) to detain entire families indefinitely “during the pendency of immigration proceedings” in order to comply with the Ms. L order while at the same time enforcing a new zero-tolerance policy as the President has directed. Any such argument is false and deceptive.”