The United States’ response to the refugee crisis that has developed at the US-Mexico border endangers the human rights of thousands of migrants. At the current pace, an estimated 90,000 children will arrive at the southern border by the end of 2014. Many of these children have endured long, extremely dangerous journeys that involve the risk of rape, robbery, beatings, and sex trafficking.
The Obama administration has responded by “surging government enforcement resources to increase (the) capacity to detain individuals…,” said Cecilia Muñoz, the White House director of domestic policy. And Secretary of State Hillary Clinton said, “We have to send a clear message, just because your child gets across the border, that doesn’t mean the child gets to stay.” These positions do not adequately recognize the nature of this international crisis and jeopardize human rights standards.
Many of these children and their families have chosen to travel thousands of miles because of worsening violence and a breakdown of the law stemming from gang related control of the region. These “gangs” or “transnational criminal organizations” more closely resemble political entities and exert significantly more power than conventional “gangs.” They claim territorial regions that span several countries; maintain control over politicians, the police, and military forces; and routinely use tactics including extortion, kidnapping, sexual assault, assassination, and mass execution.
As the rule of law breaks down in these regions, there are additional consequences to the safety and security of women and girls who are subject to increasing violence, domestic abuse, and sexual assault. The Advocates for Human Rights has helped several clients who are victims of domestic violence or who have been abducted and forced into slave-like conditions and treated like property. These clients often receive no help from local authorities and there is no hope for accountability for perpetrators.
Normally, a migrant who flees their home due to their opposition to a political entity has the opportunity to gain asylum in the United States if they can establish a well-founded fear of persecution based on their political opinion. However, in a series of legal decisions, the United States has set a precedent that denies asylum to thousands of would-be asylees, including children who oppose forced recruitment into gangs. In one case, a teenager was repeatedly persecuted by a gang in El Salvador due to his outspoken opposition as a leader of a local organization. The teenager was beaten unconscious on several occasions and was forced to watch gang members rape his female friends. This young man was found credible by a judge, but nonetheless denied asylum.
The refusal of United States asylum law to recognize these refugees runs afoul of international human rights standards codified after World War II in the 1951 Convention relating to the Status of Refugees. Further, the United National High Commissioner of Refugees (UNHCR) has issued guidance urging a broader interpretation of United States law regarding gang based cases and in a recent study found that 58% of the unaccompanied children interviewed had international protection claims.
In addition to this narrow interpretation of asylum law, individuals arriving in the United States are greeted with a detention system that treats them like violent criminals where migrants are jailed, including children and infants, in overrun and makeshift prisons. Immigrant detainees are often held in facilities that have deplorable conditions, are mixed with criminal populations, and are subjected to harsh disciplinary measures, such as solitary confinement.
The United States’ recent decision to reopen family detention centers is a mistake that exacerbates the risk of harm to families. When the Women’s Refugee Commission investigated a family detention center in Hutto, Texas in 2006, it discovered “babies in prison jumpsuits, families sleeping in cells with open-air toilets, highly restricted movement and only one hour of recreation per day. Detainees were subject to alarming disciplinary tactics, including threats to separate children from their parents.” The facility was closed after public outrage and lawsuits, and the Obama administration’s decision to re-open family detention centers is a step backward. The administration’s decision to announce this on World Refugee Day further speaks to the United States’ failure to adequately recognize the arrival of these migrants as asylum-seekers.
As the humanitarian situation of asylum-seekers from El Salvador, Guatemala, and Honduras reaches critical levels, UNCHR has called on countries in the Americas to address this humanitarian crisis in a way that upholds their shared responsibility to protect displaced children, families, or adults who are in need. In the United States, that requires changing the law to recognize all legitimate asylum seekers, ending dehumanizing detention policies, and developing new strategies and avenues for relief to support vulnerable migrants as opposed to shutting the door in their face.
By: Deepinder Mayell, director of The Advocates for Human Rights’ Refugee and Immigrant Program. Prior to joining The Advocates, Mayell was a staff attorney with Merrimack Valley Legal Services in Massachusetts where he represented poor victims of domestic violence in family, immigration, and housing proceedings. He has been committed to human rights issues throughout his career and has interned with the Texas Civil Rights Project, Human Rights Watch, and the Center for Constitutional Rights. As a research assistant, he examined the constitutionality of laws utilized to imprison individuals in Guantanamo Bay. In addition to his legal career, Mayell was a member of a research team that investigated and documented labor conditions in apparel factories in Jakarta, Indonesia. He also worked as a community organizer in Boston with a focus on youth empowerment and independent media. He received his J.D. from Brooklyn Law School in 2007 and a B.A. in Political Science from Boston College.
 Interview with United States Secretary of State Hillary Clinton on June 17, 2014 http://www.cnn.com/2014/06/17/politics/clinton-town-hall-what-to-watch/
 Jose Fuentes-Colocho v. Eric Holder, currently on appeal in the United States Court of Appeals for the Ninth Circuit
 Press Release from Women’s Refugee Commission, June 20, 2014