The Outrage of Family Separation

When I wrote about the Artesia Family Detention Center in this space in 2014, I was convinced that I had seen the worst of the worst.   At that time, the government detained immigrant moms and children together.  While providing pro bono legal assistance there, I was outraged as I witnessed rampant violations of due process, failures to provide kids with education while they languished in detention, disregard for the mental and physical well-being of children, and overall disregard for the rights of asylum-seekers under international human rights law.

Families_Belong_Together_March_Penn_Ave

But, as we all know by now, I hadn’t seen the worst.  What I’ve witnessed this past week providing legal counsel in a South Texas detention center to immigrant parents forcibly separated from their children, goes beyond the pale.  Some aspects of the administration’s zero tolerance policy have been experimented with before, such as criminal prosecution of asylum seekers for the misdemeanor of unauthorized entry, and coercive techniques to break the will of refugees so that they will give up their asylum claims.  But the unprecedented separation of families has led to a palpable sense of desperation among parents who have not seen their kids in weeks, and who were taken away from them in some of the most cruel circumstances one can imagine.

“They lied to you”

One father I spoke with, Eduardo, didn’t realize that, when he went to court, he was saying goodbye to his 5-year-old daughter for much, much longer than just a few hours.

shackles mcallan

“The last time I saw my daughter, I thought we were only going to be apart for 2 hours. The agents said we were going to court and then I’d be back with her.” Eduardo and his daughter crossed the border on June 11. He was proud as he explained to me that he had made a good living in Honduras, and had no desire to leave, until gangs started extorting him for money because of his successful small business.  When the death threats targeted his daughter, he left.  After crossing the border on June 11, the next day, the father was taken to the federal courthouse in McAllen, TX.  There — wearing leg irons, handcuffs, and waist chains — he was criminally prosecuted for the misdemeanor of illegal entry.  After being sentenced to time served, he and dozens of other immigrants were driven back to DHS’s Central Processing Station, a building also known as the “perrera” or the dog kennel, because inside, migrants sleep on the floor and are surrounded by chain fences.

Eduardo explained to me how he realized his daughter was gone. “The agents instructed some of us to remain on the bus.  But, slowly, we noticed that everyone staying on the bus had children.”  As the bus began pulling away from the compound where they had last seen their children, chaos ensued.  Parents started screaming, banging on the windows, crying as they realized they had been separated from their children.  Eduardo asked the bus driver what was happening. “Te mentieron – they lied to you,” was all the driver would say, over and over.

Desperate to Reunify with Children, Parents give up Asylum Claims

Not only are parents and kids being separated from each other, but parents are being forced to give up asylum claims in clear violation of international law.  While working at the Port Isabel Detention Center, near Brownsville, Texas, I met several parents who had signed orders of removal, upon the understanding that doing so and thereby foregoing an asylum claim would expedite reunion with their children.

Some parents clearly felt that they had been coerced to sign orders of removal. Other parents simply shrugged their shoulders and said that no one had told them they had to sign their removal; they just understood, or just hoped, that it would result in seeing their children sooner.

One mom, Alicia, had tried to proceed with the Credible Fear Interview, the threshold conversation with an asylum officer that gives an immigrant in expedited removal the right to have an immigration judge evaluate her asylum case.  Through her tears, she told me that the interview had occurred the day after she’d been separated from her girls.  She couldn’t concentrate. She couldn’t focus. She could barely breathe. She just wanted to get through the conversation as quickly as she could – it felt like a betrayal to her daughters to spend even 30 minutes talking about her fear, rather than being laser-focused on reuniting with her daughters.  Despite what I later learned was a strong claim for political asylum, she received a negative finding of credible fear.

please help me

Clearly, U.S. and international law protecting the right to claim asylum are being patently disregarded in circumstances that involve indefinite detention of asylum seekers, punitive measures for seeking asylum, or subjecting asylum seekers to expedited removal processes.

 

Scrambling to Reunify Parents and Children, Leaving them in Legal Limbo

As I write this, the U.S. government is scrambling to comply with a court-imposed deadline requiring family reunification by July 26.  Yet, based on the numbers, it seems highly unlikely that the government will be able to realize the court’s mandate to reunify families. This crisis was manufactured by the government, as it separated parents from children with no tracking system in place, nor any clear plan for how – or if – to reunite them.  Non-profit legal and social services organizations are picking up the pieces of the puzzle, locating and matching children and their parents, and providing the legal services that they will need to navigate their complex legal statuses.

This week, at the Port Isabel Detention Center, attorneys from around the country worked to locate their clients who had gone missing in ICE’s Online Detainee Locator.  One attorney there met with her client in the detention center on Monday, prepared for a hearing before an Immigration Judge on Tuesday, only to arrive to court on Tuesday to find that her client was no longer at the center.  No more information was offered.  Some of those immigrant parents, we later learned, were released to be reunited with their children, who were simultaneously being flown to Port Isabel from children’s shelters across the country.  Parents were suddenly given their civilian clothes, and ushered out to the detention center parking lot, where their children waited for them in large white ICE buses. Reunions were ecstatic, but tempered by the sense of complete and utter uncertainty as to what happens next.

I visited some of these reunified families who are in legal limbo at a Texas shelter run by Catholic Charities, where the scene was joyous and chaotic. Each reunited family had paperwork reminding them to report for ICE check-ins or court dates, but the legal status of these family units remains unclear.  Many parents had forcibly signed removal orders, which were then vacated as families were released.  Many were unclear: Were their removal orders still valid?  Some parents had received negative CFI determinations while separated from their children.  Were those determinations valid, or might attorneys manage to secure another shot at their claim for asylum, free from the mental trauma of family separation?  Will these families be allowed to pursue asylum claims while they are released, or, must they fear the possibility of family detention at every moment?  Clearly, pro bono legal counsel will be critical to supporting these families through their complex engagement with immigration law, whether these families remain in detention, or scatter to cities across the United States.

Basilica familes July 2018

Today’s Human-Rights-at-Home Crisis

As an international human rights lawyer who is immersed in the human-rights-at-home crisis of immigration law in the U.S., my current work with the Tahirih Justice Center inevitably leads to intellectual tensions.  Human rights law and refugee law lay out the contours of the world as we aspire for it to exist.   And yet, as I represent asylum seekers, employing the domestic legal realization of those international law standards, the imperfections of the Refugee Convention and various human rights instruments are profound.  I have watched as our revered international treaties are trampled on all too frequently.

Last week, I sat in federal court in McAllen and watched a U.S. Attorney prosecute 43 immigrants – many of whom may have valid asylum claims — for the section 1325 misdemeanor of “failing to enter with proper inspection.”  And yet, Article 31 of the Refugee Convention prevents a signatory to the Convention from penalizing unauthorized entry for refugees fleeing persecution.  This blatant disregard for the Refugee Convention is just one stark reminder that through zero tolerance, through prosecution of refugees for illegal entry, through separation of parents from children, and through the commodification of large-scale immigration detention, the U.S. government’s immigration policy flaunts international human rights and refugee law on a daily basis.

NB: For a more in-depth legal analysis of the international law implications of family separation, please consider this piece by ILG Jillian Blake.

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WILIG honored to co-sponsor March 3 IntLawGrrls! 10th Birthday conference

As one of the co-chairs of WILIG – the Women in International Law Interest Group of the American Society of International Law – my excitement about the March 3, 2017 10th birthday conference in honor of IntLawGrrls should be obvious. I’m thrilled to celebrate this infusion of ILGrrl energy into the state of Georgia.vanilla-party-cake

For WILIG, co-sponsoring this event is a natural fit. ILG, since its inception, has featured women’s “voices in international law, policy, and practice.” Both WILIG and ILG share the goal of amplifying women’s voices and opportunities in the sphere of international law.

Let me highlight just a few of my favorite aspects of the ILG blog. Over the past ten years, it has: 1) debunked the myth that there is a dearth of women experts in international law;  2) shared opportunities for women (and men) to apply for opportunities to engage in the writing, practice, and research of international law; and 3) lauded the accomplishments of women, giving props to leaders and experts in international law. A recent article profiling amplification strategies such as those advanced by the blog (repeating, highlighting, and crediting the accomplishments of women) demonstrate that amplification of women’s voices can have critical impact, not least of all, at the highest levels of government.

No wonder in 2012, when the blog briefly went on hiatus, I, along with thousands in the blogosphere, felt a blow to the gut. We needed the ILGrrls community, and the ILGrrls community needed us. Thanks to the new editors, a resurgence was born.

Last, but certainly not least, WILIG and IntLawGrrls interests aligned when the visionary behind the blog, Diane Marie Amann, accepted WILIG’s prestigious Prominent Woman in International Law Award in 2013.

WILIG is eager to see many WILIG members and ILGrrls in Athens, GA in March. Don’t forget to submit your proposal  to participate by January 1.   Proposals are welcome on topics including “any issue of international, comparative, foreign, or transnational law or policy. We especially welcome contributions from subfields traditionally dominated by men. Academics and practitioners, students and professors, advocates and policymakers alike are most welcome to submit.”

Looking forward to the celebration!

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.

Finding the Founders: Pioneers of Women in the Law

In 1898, women lawyers in the District of Columbia could argue before a jury, yet could not serve on one. Finding the Founders, April 14 They made legal arguments in court, but could not yet vote. It was in this context that two lawyers, Ellen Spencer Mussey and Emma Gillett, founded the Women’s Law Class in 1896, with an enrollment of three. As demand grew for an educational institution that would train women who were otherwise excluded from legal academia, in 1898 the Washington College of Law was incorporated, the first law school in the United States founded by women.

On Monday April 14, 2014 from 2-5pm American University’s Washington College of Law hosts a discussion on the accomplishments of early pioneers advocating for gender equality within the law, including those of the school’s founders, Mussey and Gillett.    If you will be in D.C. that day, please join us for what promises to be an inspiring afternoon.  Registration and more details here.

And for some additional inspiration from women who led the charge for equal rights, visit  “Her Hat Was in the Ring!”   This blog, co-edited by Jill Norgren, Wendy Chmielewski and Kristen Gwinn-Becker, lauds the political aspirations of women who ran for political office in the U.S. pre-1920, when the Nineteenth Amendment to the U.S. Constitution was ratified, extending the right of full suffrage to all women across the United States. Talk about running against the odds.