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.
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.
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.