Human Rights on the American Border

Background

Back in 2014 the Obama administration was dealing with an immigration crisis: unaccompanied minors flooding toward the United States from Central America. (Cowan, 2014) Thousands of children and teenagers were fleeing violence and seeking a chance to grow up and become adults in the rebounding economy of the United States. By May there was an emergency shelter set up at Lackland Air Force Base in San Antonio, Texas. (Cowan, 2014) As May turned to June, a warehouse building was made into a shelter in Nogales, Arizona which was quickly followed by Fort Sill, OK also being prepared as emergency housing. (Schwartz, 2014) Again, these were the lengths that the Administration was forced to resort to due to the surge in unaccompanied minors: children without family or guardians. Photos came out showing the facilities used for housing children awaiting processing: sleeping mats and space blankets on hard floors inside of chain link cages. (Franklin, 2014)

Detainees sleep and watch television in a holding cell on June 18, 2014. They are among hundreds of mostly Central American immigrant children being processed and held at the U.S. CBP Nogales Placement Center.

Women's Refugee Commission wrote about the various ways that family units could end up separated by the various federal entities involved in border security and immigration. (Podkul & Obser, 2016) Among the causes of separation, which include different family members being processed differently, ending up in different legal proceedings, and an unverified biological relationship, they also identify punitive or deliberate separation. Under the Obama administration there were recommendations from the Women's Refugee Commission about ways to reduce and mitigate family separations and that the relevant Inspectors General “should investigate complaints involving family separation and track complaints across DHS components.” (Podkul & Obser, 2016, pg 3)

Separation from family members can cause undue trauma to children and may violate the Victims of Child Abuse Act of 1990.2 In addition, family separation can impede the ability of families to access asylum and other protection mechanisms because of a variety of issues associated with the reality of the situation, see Podkul & Obser for details. Separation of adult family members during the deportation process has also shown to expose deported individuals to serious harm, rendering them more vulnerable to abuse, assaults, kidnapping, and trafficking. (Podkul & Obser, 2016, pg 1)

International Law and Treaties

Early in the 20th century the migration of people fleeing violence and persecution began to reach numbers that caused international problems requiring international solutions. There were multiple agreements set up in the 20’s and additional agreements in the 30’s. (Robinson, 1953) Following World War II the Secretary General of the United Nations was requested to study the protection of stateless persons and then provide recommendations back to the United Nations. (Robinson, 1953) Coming out of the studies for the United Nations, there have been three major defining landmarks in the handling of refugees: 1951 Convention Relating to the Status of Refugees, 1967 Protocol Relating to the Status of Refugees, and Resolution 2198 (XXI) adopted by the United Nations General Assembly. (UNHCR, 2010)
Through the various international treaties, the United States as agreed to certain rights to be afforded to refugees which includes:

• A refugee shall have free access to the courts of law (UNHCR, 2010, pg 21)
• shall not impose penalties, on account of their illegal entry or presence … provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence (UNHCR, 2010, pg 29)
• shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country (UNHCR, 2010, pg 29)
• shall not expel a refugee lawfully in their territory save on grounds of national security or public order (UNHCR, 2010, pg 29)
• expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law (UNHCR, 2010, pg 29)

As such, any asylum seekers, family or single, that cross the border into the United States and present themselves to the authorities without delay are not coming into the country ‘illegally’, they are doing so under the terms established pursuant to the UN Charter treaty. “There is nothing illegal about seeking asylum – on the contrary, it is a universal human right. Conflating ‘refugees’ and ‘migrants’ can undermine public support for refugees and the institution of asylum at a time when more refugees need such protection than ever before.” (UNHCR, 2016, pg 2)

Malicious Intent

In April 2018 it was reported that a caravan of asylum seekers was traveling through Mexico from Central America. (Schrank, 2018) President Trump, through his official line of communication @realDonaldTrump at twitter.com, put out three statements regarding this caravan. (realDonaldTrump, Apr 3,5,30)

Conflating ‘refugees’ and ‘migrants’

He intentionally conflated these refugees with migrants for the exact purposes referenced above in the 'Refugees' and 'Migrants' - Frequently Asked Questions. The same caravan was referenced by Attorney General Sessions in his Zero Tolerance remarks given in San Diego. (Sessions, 2018) Sessions further explained the zero tolerance for “illegal entry” (2018) as “If you cross this border unlawfully, then we will prosecute you.” (2018) The Convention and Protocol Relating to the Status of Refugees uses those exact words in Article 31: “unlawfully in the country of refugee” and “illegal entry” (UNHCR, 2010, pg 29) So long as the border apprehension involved the refugee having presented themselves without delay to the authorities then the asylum claim needs to be adjudicated. It has been clarified for me through an immigration lawyer that asylum seekers have a year to file under current US law.

This “‘zero tolerance’ policy for illegal entry on our Southwest border” (Sessions, 2018) represents a divergence from the United States’ obligations under international treaties. Criminal prosecution for asylum seekers also results in children being separated from their parents and consequently placed in ORR custody, as previously identified as an issue by the Women's Refugee Commission. (Podkul & Obser, 2016) Thus the illegal criminal prosecution is generating additional stress on the systems that already were strained by unaccompanied minors.

Unlike the family unit separation being reported on in 2016 by the Women's Refugee Commission, the separation resulting from the Attorney General’s decision is strictly punitive and directed by policy from the top. “If you cross this border unlawfully, then we will prosecute you.  It’s that simple.” (Sessions, 2018) Except it is not that simple, because refugees have a right to “show good cause for their illegal entry” (UNHCR, 2010, pg 29)

This change was not a rash decision. Reuters has been reporting that the Trump administration has been looking into breaking up family units to discourage asylum claims for over a year. (Ainsley, 2017) In March 2017 the Department of Homeland Security was “actively considering separating women from their children but has not made a decision.” (Ainsley, 2017) The consideration was part of an exploration into “options that may discourage those from even beginning the journey.” (Ainsley, 2017) The following week then-Secretary of Homeland Security Kelly confirmed that “I am considering - in order to deter … exactly that” (Staff, 2017) It would have been accomplished through a “policy change would allow the government to keep parents in custody while they contest deportation or wait for asylum hearings” (Staff, 2017) which is exactly what zero tolerance criminal prosecution achieves.

Harm From Federal Actors

International norms and obligations are not the only reason that unnecessary custodial detainment and prosecution is unwise. As was discussed at the beginning, there are serious logistical concerns to large numbers of people detained for extended periods of time. Human Rights Watch found that asylum seekers around the southwest border “are generally placed in holding cells for several hours to several days, and sometimes a week or more” (Bochenek, 2018, sec 3) Bathing, dental hygiene, toilet paper, and feminine hygiene products are often unavailable no matter the length of holding. A 2015 court found that the holding cells had “widespread and deplorable conditions in the holding cells.” (Flores v Johnson, 2015) Similarly the court found that “Defendants have said nothing to contradict Plaintiffs' accounts of inadequate nutrition” (Flores v Johnson, 2015) Again, like the 2016 report and the 2014 unaccompanied minors influx, these conditions were present under the Obama administration. This was the situation before the decision was made to ignore international treaty obligations for refugees and increase the number of minors taken into custody separate from their families.

Department of Homeland Security has been found to make unfounded claims without evidence and

lie to federal courts to achieve desired outcomes. (Medina v US DHS, 2018) Gang affiliation has been used to justify dehumanizing speech, equating criminal immigrants with creatures to be exterminated. This pattern of speech, the language of genocide, has been widely used as a precursor to more vicious activity. Dehumanization was even used in the Abu Ghraib prison when prisoner were abused and treated like animals. (Kearney, 2007) Since the Department of Homeland Security is proven to lie about gang affiliation, the dehumanizing speech is targeting all immigrants.

Additionally, immigration judges previously had a method to remove low-priority cases from their backlog known as administrative closure. (Rosenberg, 2018) This method was “routinely used for people without criminal backgrounds who had lived for many years in the United States” (Rosenberg, 2018) Attorney General Sessions declared judges “do not have the general authority to suspend indefinitely immigration proceedings by administrative closure” although the change “would likely overwhelm the immigration courts.” (Rosenberg, 2018) This case, known as Castro Tum, relates to immigration cases rather than asylum seekers.

An extreme change reported just today seeks to reduce the number of successful asylum claims brought by refugees. Setting precedent for immigration judges, who are Department of Justice employees and not actually members of the federal judiciary, Attorney General Sessions overruled an immigration decision granting asylum to a victim of rape and domestic abuse. (Staff, June 2018) An immigration lawyer has told me that this could erase 85% of all asylum claims.

Conclusion

The Trump administration, through Attorney General Sessions, has enacted changes which undermine international law and throw more bodies into an already overwhelmed and abusive custody situation. As explicitly described in 2017 by Department of Homeland Security, these changes are punitive against current asylum seekers to discourage future refugees from attempting to reach the United States. Watchdog organizations including Human Rights Watch, the Women's Refugee Commision, and US Federal District Courts have all found abusive treatment not even consistent with rapidly weakening DHS policies. Federal Courts have also found that ICE has lied to them about the alleged gang affiliation of those taken into custody.

References

Ainsley, J. (2017, March 3) Exclusive: Trump administration considering separating women, children at Mexico border. Reuters. Accessed June 11, 2018 https://www.reuters.com/article/us-USA-immigration-children-idUSKBN16A2ES 
Aquino, M. & Taj, M. (2017,March 9) Peruvian president criticizes U.S. proposal to separate immigrant families. Reuters. Accessed June 11, 2018 https://www.reuters.com/article/us-peru-usa/peruvian-president-criticizes-u-s-proposal-to-separate-immigrant-families-idUSKBN16H09L
Bochenek, M. (2018, February 28)  In the Freezer: Abusive Conditions for Women and Children in US Immigration Holding Cells. Human Rights Watch. Accessed June 11, 2018 https://www.hrw.org/report/2018/02/28/freezer/abusive-conditions-women-and-children-us-immigration-holding-cells
Cowan, R. (2014, May 28). Waves of immigrant minors present crisis for Obama, Congress. Reuters. Accessed June 11, 2018 https://www.reuters.com/article/us-usa-immigration-children/waves-of-immigrant-minors-present-crisis-for-obama-congress-idUSKBN0E814T20140528
Flores v. Johnson, No. CV 85-4544 (C.D. Cal. July 24, 2015) https://www.americanimmigrationcouncil.org/sites/default/files/jenny_l_flores_v_jefferson_b_sessions_motion_to_enforce.pdf
Franklin, R. (2014). First glimpse of immigrant children at holding facility. AZ Central. Accessed June 11, 2018 https://www.azcentral.com/picture-gallery/news/politics/immigration/2014/06/18/first-glimpse-of-immigrant-children-at-holding-facility/10808687/
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Kearney, C. (2007, March 26) U.S. documentary shows everyday abuse of Abu Ghraib. Reuters. Accessed June 11, 2018 https://www.reuters.com/article/film-iraq-doc-dc-idUSN2326524820070326
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realDonaldTrump (2018, April 3) The big Caravan of People from Honduras… Twitter.com
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