The last few weeks have seen numerous reports on the growing number of unaccompanied minors seeking entry to the United States through the Mexican border. The reasons for the uptick in crossings are numerous and complex, and, like the question of whether the children meet the definition of refugees, are not the focus of this post. My question here is a simpler one: whether the adjudication mechanisms under consideration in response to this crisis afford these children a fair hearing focused on a determination of credible fear and other harm which, if identified, would trigger international protection. If the contemplated changes do not comport with a good faith application of the principle of non-refoulement, we run the risk that the U.S. will be in breach of its international obligations.
A “fast-track” process eases the short-term administrative and resource burden at the risk of returning children in need of protection, and would violate the principle of non-refoulement. Non-refoulement, or a prohibition on forcible return, compels States to ensure that no person is forcibly returned to a place where they face persecution, torture or inhuman treatment. In the context of refugee law, States have an obligation of non-refoulement until a negative refugee status determination has been made and States have a good faith obligation to ensure that this takes place. Refoulement can be explicit or it can be constructive, but the UNHCR has stated that it applies at the border, even before an entry is made.
While U.S. law does not explicitly recognize the obligation of non-refoulement, U.S. Immigration Law has a number of built-in protections to prevent the return of individuals to countries where they may face persecution, inhuman treatment or torture, including “withholding from removal” (where removal proceedings are ongoing and there is a high probability that life or freedom would be threatened upon return) and “asylum” for refugees physically present within the US.
There are also multiple mechanisms specific to minors in the immigration system under U.S. law. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), created a two-tiered system that separates arrivals into two groups: citizens of contiguous countries (mainly Mexico) and citizens of non-contiguous countries. Children from non-contiguous countries or children who are found to be vulnerable to trafficking, who express a credible fear, or who are deemed unable to make a determination on voluntary return, are turned over to the Office of Refugee Resettlement for formal deportation proceedings. During this time, they are able to make an asylum claim and seek relief under the withholding provision, in addition to other forms of relief. As immigration courts remain backlogged, the children are placed with families while proceedings are pending. This takes anywhere from a year and half to five years to resolve. Minors arriving from contiguous countries (Mexico or Canada) who are deemed capable of requesting voluntary return and do not fit the risk criteria are processed within 48 hours and returned “home.”
The TVPRA 2008 process was an improvement on previous practice where no such determinations were made for Mexican children. Instead they were subject to “expedited removal” and repatriation, pursuant to which they were removed from U.S. territory after an examination by a CBP Officer and without an appearance in immigration court. As the term suggests, expedited removal is designed as a fast track process, and still applies to adult arrivals. Though individuals are able to make an asylum claim during this process, they are not able to seek relief under the withholding provisions. Based on recent reports, it now appears that some parties in the Administration and Congress are contemplating applying the “contiguous country” standard to all children arriving at the southern border, and quite possibly amending the TVPRA so that only the expedited removal process applies – both to adults and to children.
A number of human rights reports have raised concerns with the existing processes. The Appleseed Foundation has noted that interviews are not being conducted in a “child-centric” environment and without sufficient regard to the arriving childrens’ vulnerability due to trauma or the fact that they may be victims of trafficking. The UNHCR recently conducted interviews with more than 400 children from Central America and found that the majority left their homes to escape situations of violence. The report noted that it was particularly difficult to gather details regarding children from Mexico simply because they were returned to their “homes” so quickly. Similar concerns are reiterated by advocates, including a group of law professors who recently authored a letter to the President.
So what does this mean? Does it even matter if we violate international legal obligation of non-refoulement? The U.S. is a party to the 1967 Additional Protocol and is therefore subject to Article 33 of the Refugee Convention, but the 11th Circuit ruled in 1991 that Article 33 was non-self executing and therefore did not grant enforceable rights. And it has been identified as a rule of Customary International Law by the UNHCR, but the U.S. has contested the position that it is customary law.
I’ll ask one more time – so what does this mean? As a professional who has worked with survivors of trauma, I know from my own experience that traumatized minors often take weeks to re-build the trust necessary to fully tell their story – and those are the minors here in the U.S., with families and geographic familiarity. The move to a fast-track process is therefore worrisome. It is highly unlikely that international litigation would arise from this scenario, but we do have the opportunity to deal with a humanitarian crisis in accordance with international law. Process adjustments might be more difficult in the short-term, but at a basic level, the energy required now to reinforce a solution with an established legal framework represents a worthwhile investment on our part in making a bad problem better instead of worse in the long-term. Or in other words, leading by example.