Family Immigration Detention at Artesia: An international law inquiry

The sense of emergency one feels after spending a week in prison surrounded by young children and their mothers cannot be overstated. Although it was in November that I spent a week lawyering in a family detention center, the urgency stemming from the violations of international law perpetrated by the U.S. there remains acute. The Artesia Family Residential Center closed on December 15, 2014, but the U.S. continues to expand its practice of detaining families – a practice that presents at least three interwoven sets of legal problems under international law.

The landscape on the four hour drive from Albuquerque, NM, to Artesia Family Detention Center.

The landscape on the four hour drive from Albuquerque, NM, to Artesia Family Detention Center.

To arrive at Artesia, New Mexico, our group of American University students and professors flew from Washington D.C. to Albuquerque. We then drove nearly four hours through the desert to reach our destination. The barren desert of New Mexico is silent and beautiful, yet the isolation of the detention center made it exceedingly difficult for the women and children there to access legal assistance. A valiant effort from AILA (American Immigration Lawyers Association) to recruit pro bono lawyers brought dozens of attorneys from across the country to volunteer their services; if not for this above-and-beyond effort, these detainees would have no legal assistance navigating the complicated process of applying for asylum.

The ongoing humanitarian crisis in countries including El Salvador, Honduras and Guatemala has brought thousands of migrants to the U.S., many of whom are fleeing persecution. Gang violence, sexism, terror and discrimination are rife. Women, children, LGBTI and those who speak out in opposition to these practices are especially vulnerable. My students and I heard countless incomprehensible and sickening stories of violence: One woman’s children were afraid to walk to school because of the severed heads hanging at the building’s entrance. Another woman’s husband threatened to kill her children one by one. (She could only afford to flee to the U.S. with one child; she chose her 5-year-old daughter – the one her husband had said he would maim and kill first.)

These terrifying experiences certainly constitute persecution under U.S. immigration law, and indeed, these women were found to have “significant possibility” of a successful asylum claim in front of an Immigration Judge as per their credible fear interviews.

Rather than working to ensure that international law protects these people, the Obama administration maintains that those crossing the border will be detained and then deported. As Department of Homeland Security Secretary Jeh Johnson has stated: “[O]ur message to this group is simple: we will send you back.”

Family Detention Violates International Law

Although there are numerous violations of international law I could discuss here — including the multiple ways in which detention in and of itself can constitute a violation of international refugee and human rights law — I’ll focus on the U.S.’s international law obligations regarding first, treatment of refugees; second, the protection of children’s rights; and third, adherence to protections of due process through access to legal counsel.

First, Artesia demonstrates how the U.S. is in violation of its obligations under international law to protect refugees. The United States signed on to the 1951 Refugee Convention and has implemented this treaty through domestic legislation. These laws mandate that, even if an arriving alien is subject to expedited removal, she must be granted the opportunity to express a credible fear of returning to her country. The Convention also includes specific prohibitions against detention, forbidding the use of punitive measures for refugees fleeing threats against their lives or their freedom.

Further, the U.S. detention and subsequent deportation of migrants is likely in violation of the U.S.’s commitment to prevent refoulement, the practice of returning a refugee to a country where she may face severe harm, banned under refugee law as well as the Convention against Torture. Shockingly, before attorneys came to volunteer at Artesia, women were being deported at a rate of 20 per day. Once attorney representation was more widely available, asylum officers found approximately 80% of the women detainees had a credible fear of returning.  Coupled together, these statistics suggest a clear violation of non-refoulement. In other words, the U.S. deported women who would have likely succeeded at establishing a credible fear, had attorney representation been accessible. International law, as well as U.S. immigration law, protects the right of women such as these to remain in the U.S. while their claims to asylum are adjudicated.

A small but mighty group protesting family detention in Artesia on November 20, Universal Children's Day,

A small but mighty group protesting family detention in front of Artesia’s Family Detention Center on November 20, Universal Children’s Day,

Second, the Convention on the Rights of the Child protects the right to education, and recognizes that each child, regardless of citizenship, is entitled to “the full and harmonious development of … his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.” Although the U.S. remains one of only two U.N. member states who have not yet ratified the treaty (Somalia just ratified last week), the U.S. did sign the treaty, indicated a general endorsement of its principles. Other jus cogens sources international law sources, such as the Universal Declaration for Human Rights, also reiterate the need for special protections for children and mothers. The reality of life for detained children is quite the opposite. Although an ICE press release announced that school would start in Artesia in October, during my November visit, children regularly accompanied their mothers to the legal trailer. Most women I spoke with told me their children were in class only two hours a day, and that teenagers spent their time “drawing or doing basic math,” clearly insufficient for the teenagers who had been detained for months.

Perhaps the most disturbing signal that children’s most basic rights are violated is the high level of mental distress among the youth in detention. One mother explained to me that her 3-year-old daughter had tried repeatedly to suffocate herself in her pillow; the child also pulled out her own hair and hid behind doors, talking to herself and scratching her face until it bled. An Immigration Judge declined to grant humanitarian relief for this woman and her daughter, deeming the psychologist-documented evidence to be insufficient.

Third, the right to due process, as protected under the ICCPR (International Covenant on Civil and Political Rights) and other international treaties, not to mention the U.S. constitution, is violated by the treatment these women endured in detention. U.S. courts have determined that immigrants in deportation proceedings have the right to access counsel, which can be paramount in the success of these cases. Before attorney presence arrived in remote Artesia, the U.S. government articulated the aim to deport these women and children as quickly as possible. These “massive incidents of deportation at high velocity” occurred despite U.S. obligations under domestic and international law to screen migrants who expressed a fear of returning. Yet without attorneys, women were screened through credible fear interviews often conducted while their children sat on their laps. Instead of willingly describing the rapes, threats and violence they experienced, these mothers minimized the fear they faced in order to protect their children, unwittingly jeopardizing their chances of being found to have a credible fear. One woman I accompanied to a credible fear interview was so mortified by the slurs and misogynist names her abusive husband had called her that she refused to utter them until her attorneys conveyed to her that reliving these terrible memories is an unfortunate but necessary element of seeking asylum in the U.S. For these reasons, the availability of attorneys who can guide these traumatized women through the process is often critical to their claims.

The U.S. Must End Family Detention

The Detention Center in Artesia has closed, yet family immigration detention continues to expand in the U.S. The Obama administration’s recent announcement of immigration executive action provided important relief for many groups including the parents of U.S. citizens and others. The reforms, however, neglect to mention family detention, nor do they articulate any aspiration to remedy the various international law violations discussed here.

The women detained with their children in U.S. detention centers demonstrate great bravery. Most have suffered extreme violence at the hands of abusive partners, family members, or gangs that terrorize so many, but undoubtedly, these women are part of a global pattern of severe violence against women. Those who have come to the U.S. and who are detained have often overcome years of paralyzing psychological abuse and have left relationships in which they were treated as sub-human. These women and their children are exactly the people that our laws are designed to protect. In his November 20th speech on immigration, Obama indicated that immigration enforcement efforts would be directed toward “felons, not families.” Yet, in multiple family detention centers throughout the U.S., thousands of women and children who merit protection under international law linger.

Go On! ASIL Panel ‘How to Get a Job in International Law’ Feb. 9 in D.C.

Description: 

Join the Women’s Bar Association of DC’s International Law forum and its co-sponsors for a panel discussion on how to get international law jobs at various types of employers, including private practice, academia, public interest, and more. The discussion will address not just career paths, but how to approach each type of employer for international law positions, as well as tips for enhancing your experience in this field. Co-sponsoring organizations include: ABA Section of International Law; DC Bar International Law Section; American Society of International Law (Women in International Law Interest Group and New Professionals Interest Group); Washington Foreign Law Society; Women in International Trade; and International Lawyers Network.

Speakers:

Janie Chuang, professor of law, American University Washington College of Law

Christie Edwards, director of international humanitarian law, American Red Cross

Kathryn O’Neal, Millennium Challenge Corporation

Marcia Wiss, of counsel, Hogan Lovells LLP

Moderated by Marilyn Tucker, director of alumni career services & international internships, Georgetown Law Career Services.

Date and Location

Date:
Monday, February 9, 2015 – 6:00pm to 8:00pm
Location:
O’Melveny & Myers LLP
1625 I Street NW
Washington, DC 20006
Venue:

O’Melveny & Myers LLP

1625 I Street, NW

Washington, DC 20006

Registration Fees:

Advance Registration

Members: $15

Non-members: $25

Student Members: $10

After 2/6/2015

Members: $20

Non-members: $30

Student Members: $15

Click here to register.

For More Information:

Click here.

On the Job! Assistant Professor of International Law at Graduate Institute Geneva (deadline 15 Feb.)

The Graduate Institute of International and Development Studies in Geneva, Switzerland, invites applications for a full-time position at the rank of Assistant Professor in International Law (pdf) with a specialization in one of the following areas :

  • International Economic Law – trade law, investment law, intellectual property and/or financial regulation
  • Protection of Human Dignity – human rights, humanitarian law, international criminal law and/or transitional justice
  • International Environmental Law – climate change, energy law, and/or natural resources management
  • Transnational Law – transnational business transactions, commercial arbitration, alternative dispute settlement, transnational litigation

starting on 1 September 2015 or on a mutually agreed-upon date.

Candidates are expected to have an excellent background in international law and be prone to interdisciplinary dialogue.

Applicants should have a doctoral degree prior to the start of their contract.

All candidates must be able to supervise master’s and doctoral theses and to teach graduate students in both disciplinary and interdisciplinary programs, including general courses in International Law and in their own area of specialization.

The teaching language is either English or French. Prior knowledge of French is not required, but the successful candidate is expected to acquire at least a passive knowledge of it within two years of being hired.

Applications, including a motivation letter, a detailed curriculum vitae and a list of publications –  but excluding letters of recommendation and publication samples – must reach the Director, preferably by email (director@graduateinstitute.ch, ref. LAW) or by post (Graduate Institute of International and Development Studies, P.O. Box 136, 1211 Geneva 21, Switzerland), by  15 February 2015.

Information on employment conditions can be obtained using the same contact details.

The Institute reserves the right to fill the post by invitation at any time.

For more information, candidates are encouraged to consult the Institute’s website: http://graduateinstitute.ch/open_positions

Duke Law Seeks Supervising Attorney/ Clinical Fellow, International Human Rights Clinic

Our colleagues at Duke Law have asked us to post the following announcement, a link to which can also be found here.  Among the benefits of this position is the mentorship the person would receive from the clinic director, the fabulous Jayne Huckerby!

DEADLINE for applications: 16 March 2015

Job Announcement: Clinical Fellow/Supervising Attorney, International Human Rights Clinic, Duke University School of Law 

Duke Law seeks to fill a Clinical Fellow/Supervising Attorney position in its International Human Rights Clinic beginning in the Summer of 2015.

Duke Law has deep faculty, student and institutional engagement in human rights and international law.  In addition to its International Human Rights Clinic launched in the Spring of 2014, the law school is home to a Center for International and Comparative Law and a Center on Law, Ethics, and National Security.  It offers a joint JD-LLM in international and comparative law, has many student organizations relating to international law, and publishes the student-edited Duke Journal of Comparative and International Law.

The Clinical Fellow/Supervising Attorney will work closely with the Director of the International Human Rights Clinic.  She or he will primarily help supervise student fieldwork in Clinic projects and participate in the planning and teaching of the Clinic advocacy seminar.  The Clinical Fellow/Supervising Attorney will also work closely with the Director and other faculty to expand Duke Law’s experiential learning opportunities in international law, including through student placements in competitive summer and semester fellowships and externships in human rights and related fields.  The individual appointed to the position will receive mentorship in teaching, scholarship, and human rights lawyering and will have an opportunity to work with the faculty affiliated with the Center for International and Comparative Law.

Applicants should have a minimum of two to five years of relevant experience. In addition to a record of, or demonstrated potential for, clinical teaching, advocacy, and intellectual engagement, the ideal candidate will have experience: as practicing lawyers or human rights advocates, developing practice-oriented courses, supervising students in fellowships or externships, working collaboratively with faculty, and other evidence of in-depth knowledge of and practical engagement in international human rights law and mechanisms.

The initial term of the appointment is expected to be two years.  Salary and benefits will be commensurate with experience and competitive with similar fellowship positions at other top U.S. law schools.

Applicants should send a statement of interest and CV to Ali Prince at ali.prince@law.duke.edu by March 16, 2015.

Duke University and Duke University Health System is an Affirmative Action/Equal Opportunity Employer committed to providing employment opportunity without regard to an individual’s race, color, religion, age, gender, sexual orientation, national origin, genetic information, veteran status, or disability.

Read On!: Drone Wars – Transforming Conflict, Law, and Policy

I’m excited to announce the recent publication of a new book on one of the most talked about tools of modern warfare: drones. Drone Wars – Transforming Conflict, Law, and Policy by Cambridge University Press provides a comprehensive analysis on the context, use, and repercussions of drones in the 21st century. Consisting of a series of essays (including one by fellow Grrl Rosa Brooks called “Drones and Cognitive Dissonance”), the text offers a much-needed voice of thoughtful discussion in a loudly contentious field.

Drone Wars

Much of the content draws from its origins in the New America Foundation’s International Security Program, which houses the groundbreaking datasets on drone strikes in Yemen and Pakistan among others. The book’s editors, Peter L. Bergen and Daniel Rothenberg, have done an impressive job at collecting a series of fresh perspectives that would be appreciated by both academics and non-academics alike. This would also serve as an excellent primer for courses on the laws of war in a modern context.

Essays authored by: Peter L. Bergen, Daniel Rothenberg, David Rohde, Jennifer Rowland, Sarah Holewinski, Christopher Swift, Saba Imtiaz, Drone Pilot (unnamed), Charles Blanchard, William C. Banks, Naureen Shah, Tara McKelvey, Michael Waltz, Peter W. Singer, Rosa Brooks, Megan Braun, David True, “Adam Khan”, Werner J. A. Dahm, Konstantin Kakaes, Samuel Issacharoff, Richard Pildes, and Brad Allenby.

Congratulations to the New America Foundation on this fantastic new book!

On the Job! Attorney Advisor position at U.S. Foreign Claims Settlement Commission

The United States Foreign Claims Settlement Commission, an independent quasi-judicial agency in the U.S. government that determines the validity and monetary value of claims of U.S. nationals for losses caused by foreign governments, is searching for an attorney advisor. For more information on the position, visit  http://www.justice.gov/legal-careers/job/attorney-advisor-international.

Go On! European Master’s Programme in Human Rights and Democratisation

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The European Master’s Programme in Human Rights and Democratisation (E.MA) is now accepting applications. E.MA is a unique Master’s programme developed by 10 pioneering universities that today counts on the participation of 41 prestigious universities and human rights centres from all member states of the European Union.
The programme is an intensive one-year advanced master’s course and an outstanding mix of theory and practice and higher education, preparing students for careers in international organisations, field operations, governmental and non-governmental bodies and academia.

Reference point for the promotion of Human Rights Education
Established during the academic year 1997-1998, E.MA is the flagship activity and first postgraduate course of EIUC, and reaches, with its next edition, its 18th anniversary.
The E.MA Programme has become an educational reference point in the human rights field around the world. Its growing reputation is based on the selection every year of up to 90 students from around the world who are ready to work hard and commit to human rights as a profession. The European Inter–University Centre for Human Rights and Democratisation (EIUC) offers unparalleled access to human rights experts and practitioners from Europe who teach classes and offer students invaluable guidance for their future careers.

A joint European master’s programme 
E.MA brings together experts and professors representing the 41 E.MA participating universities, officials of international organisations (including the European Union, the United Nations and the Council of Europe) and practitioners of national and international NGOs.
E.MA is both a residential and an exchange programme: during the first semester students stay in Venice (Italy), while for the second semester they move to one of the E.MA participating universities located throughout Europe. Subject to the availability of financial resources, the course also includes a week-long field trip to a post-conflict country.
More information can be found here.
Applications will be processed on an ongoing basis in two rounds. The first round deadline has passed, but the second round deadline is 15 March 2015.

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