The Alibi talks to Lisa Graybill about the U.S.’s year-old policy of detaining immigrant families and children
By Marisa Demarco
In one facility in Taylor, Texas, about 45 minutes outside of Austin, the kids don't pretend they're teachers or doctors. In their prison garb, they play guard-detainee, where the guard screams in the detainee's face as the detainee cowers and cries. That's the picture lawyer Lisa Graybill paints of the T. Don Hutto Center, a prison converted last summer to detain immigrant families.
Hutto is run by the Corrections Corporation of America, which Graybill, the legal director of the American Civil Liberties Union in Texas, says has no expertise in creating the kind of situation required to house immigrant families from all over the world, many of whom are seeking asylum. She's met with pregnant women, 8-month-old babies, teenagers—
As tensions in the country wind tight around our immigration policy, Graybill is planning a suit against the Michael Chertoff, secretary of Homeland Security, in federal court. Thanks to a judge in Austin, the lawsuit been scheduled for an expedited trial in August.
You've worked on other cases regarding prison conditions. Did those experiences help you bring the suit against Hutto?
Yes and no. What's going on at Hutto is unique. This is only the second family detention center in the country. I've done a fair amount of prison and jail work, but that's traditional prison and jail work, which involves people who've been convicted of a crime, adults and juveniles. I've certainly never dealt with 2-year-olds in jail. I don't think there's any other circumstance in which 2-year-olds end up in jail.
You've been there. Can you describe it?
Until pretty recently, it was surrounded by concertina wire. It's still surrounded by high fences. They've taken out the razor wire. There are cell blocks. It was built to be a prison. It walks like a duck and talks like a duck—it is a duck.
The immigrants used to line up for count seven times a day. I think it's down to four. In that way, it felt like every other jail I've been in. Your every movement is controlled by officers. There's a laser trained on the cell doors at night so an alarm will go off if they open. You can't move unescorted throughout the facility. You can't open a door yourself.
Are the children with their families in the facilities?
Until the end of December 2006, the families were required to be together all the time. That's how the government had gotten around licensing requirements for a child care facility. That was difficult because you couldn't have a confidential attorney-client interview with the adult parent.
A lot of these people are fleeing persecution in their home countries. They are asylum seekers who have horrible stories to tell of the torture and persecution they experienced at home. We couldn't interview clients without having their kid sitting right there, while the parents are talking about these excruciating things that have happened to them.
U.S. District Judge Sam Sparks in Austin ruled on that, right?
The judge entered an order immediately requiring the facility to make it possible for parents to speak to their attorneys with their kids nearby but not in the same room.
What laws or rules are in place about the treatment of immigrants?
That's a good question, because the answer's really clear and is the basis for our lawsuit. There was litigation brought in California on behalf of unaccompanied minor immigrants, kids who were picked up alone. The federal judge in California had a lot to say about the deplorable conditions those kids were being kept in. The government, INS, entered a settlement in 1997 agreeing to treat detained minors held in immigration custody in a certain way.
What did the agreement outline?
Minors should only be detained if they present a flight risk or demonstrable harm to themselves or others. Otherwise minors in custody should be released to an appropriate family member. That's the first requirement. The second requirement is that for the minority of minors who need to be detained, they have to be detained in a least-restricted setting, a homelike environment. They're entitled to certain minimum requirements of care, education, medical, recreation, counseling. The Flores Settlement spells out very clearly what's required of the government and what the government agreed to.
How long are people usually detained in Hutto?
Our Haitian clients were detained on Sept. 12, seeking asylum. The father had been kidnapped and killed. The mom and kid had been threatened. They had been at Hutto since September and were still there when we filed on March 6. They'd gone up for parole and been denied. They were there for six months.
The government's attorney testified that the average length of stay was 50 days. One of the few things the government says in support of Hutto is that it was only originally intended to house people who were in expedited removal proceedings, who didn't have a pending asylum claim. It can take 18 months to adjudicate an asylum claim. The government said it was only going to house people who shouldn't be there more than 90 days. At some point since Hutto opened in May, they changed that to say they would house people who were picked up for any reason.
Has it always been that way?
The government has the discretion to let these folks out for paroles and, up until last year, that's what they did. Most folks that arrived in family units got paroled. Their contention is that too many of those people disappeared into the ether. That's why the so-called "catch and release" didn't work.
The worst thing that really illustrates everything about the facility to me is that literally every kid and every parent we talked to told us this about the way the corrections officer manage order and pose discipline. They tell kids if they cry too much or play too loud or fight with each other or have any horseplay, or if their moms sleep too much or cry too much, they're going to be taken away to another cell or pod where they don't see their moms. And if they don't stop then, they're going to be taken away for good.
What do you think generally about the way immigrants are treated in the United States?
We're a nation of immigrants. But I think it's clear we have a crisis right now in terms of the federal government's ability to manage the borders and maintain the confidence of the citizenry that it's being responsible. Some of that is post 9/11. I think some of it's economically related. If you look historically, immigrants are everyone's favorite group to hate when there's economic stress.
Has the treatment of immigrants over the last few years gotten better or worse?
If you mean the actual conditions in facilities where immigrants are, I don't know if it's gotten better or worse, but the number of people the government's decided to detain has certainly increased. The government's going to say that's because catch-and-release didn't work, and we're gonna say you had a whole lot of alternatives, without commenting on whether catch-and-release works. Even if it's a total failure, that shouldn't lead immediately and inevitably to the conclusion that everybody should be put under lock and key.
What kind of immigration policy do you think the U.S. should be working toward?
I think it would have to be a policy that addresses the many issues that are raised for citizens as a result of immigrants, as well as the process that we want to use. Unless we're going to lock down the borders across the board, which wouldn't be prudent, the issue is really creating a process that's fair, that's efficient and that strikes a balance between the way this country wants and needs immigrants and the impact immigrants have on the folks that are here. It's complicated. There's not some silver bullet.
Lisa Graybill will speak at the Annual Membership Meeting of the ACLU from 10 a.m. to noon on Saturday, April 28, at CNM. A panel of speakers will discuss "The Un-American Face of American Immigration Policy" in Room S-10 in the South Building. Speakers include: New Mexico Rep. Ken Martinez; Rachel LaZar, director of El Centro de Igualdad y Derechos; and Peter Simonson, executive director of the ACLU of New Mexico. For more, go to aclu-nm.org.
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