Resolving Refugee Crisis at Border Stymied by U.S. Policy

Child from HondurasThe 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.[1] 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…,”[2] 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.”[3] 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.[4]

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.[5]

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.”[6] 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.[7] 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.



[3] Interview with United States Secretary of State Hillary Clinton on June 17, 2014

[4] Jose Fuentes-Colocho v. Eric Holder, currently on appeal in the United States Court of Appeals for the Ninth Circuit


[6] Press Release from Women’s Refugee Commission, June 20, 2014


Supreme Court Separates Families

Peace for ImmigrantsA fractured U.S. Supreme Court ruled last week that children who “age out” of certain immigration categories must move to the back of the line and reapply in a new visa category, despite a federal law intended to protect such children. The ruling flies in the face of real life―U.S. immigration system’s delays are so long that families can wait decades to finally get to their chance to receive a visa.

Individuals who are over 21 are not considered “children” for immigration purposes and cannot be included on a parent’s immigration application. However, the Child Status Protection Act (CSPA) allows children who turn 21 while an immigration petition is pending to continue to be considered “children.” But, the Board of Immigration Appeals (BIA) has said that children included on a parent’s visa petition do not benefit from the CSPA and must restart the immigration process from the beginning if they turn 21 before their parent’s petition is granted. Only children applying in their own right may preserve their place in line despite turning 21.

The case, Scialabba v. Cuellar de Osario (formerly known as Mayorkas v. Cuellar de Osorio), turned on a question of statutory interpretation. A U.S. Supreme Court majority ruled that in the absence of clarity in the law, it must defer to the BIA’s restrictive interpretation. Though the question at issue seems arcane, the impact on immigrant families will be very real.

The U.S. immigration system is plagued by long wait times and delays. In some cases, people who applied in 1990 are only just now receiving visas. Families applying together, even with very young children, can easily end up waiting for visas until after their children turn 21. Through no fault of their own, the adult children are now not eligible to immigrate on the original petition. As a result of this Supreme Court decision, the adult children must reapply in a new category, separating the family and adding years or even decades to be reunited with family.

“The BIA has read the statute to include some but not all aged-out children,” said Deepinder Mayell, director of The Advocates for Human Rights’ Refugee and Immigrant Program. “This results in the unwarranted separation of families who have waited for many years to lawfully immigrate to the United States. Although the Circuit Court disagreed with the BIA’s application of the law, the Supreme Court deferred to the executive branch and the BIA to interpret immigration law.”

In The Advocates for Human Rights new groundbreaking report, Moving from Exclusion to Belonging: Immigrant Rights in Minnesota Today, immigrants identified the slow pace of the immigration system as a serious problem. “Legal immigration takes too long because of all the bureaucracy,” noted one citizen in the report.

A permanent resident said he was looking forward to becoming a citizen. But “to get there, we had to go through an asylum case and it took thirteen years to get there,” the person said. “The reason is because, every time we would win a case, the government immigration attorney would appeal and fight more, we would have to re-file our case, which meant spending more money.” This individual summed up his experience by saying, “it is kind of a reminder to those involved about the mistakes in the immigration system.”

Because of lengthy delays, one asylee whose case processed for 11 years said he had the “worst opinion that could exist of the immigration system and the people that work there that anyone could ever have. Because we were almost deported because of an error that immigration made and they never acknowledged their fault.”

Long wait times and the resulting family separation are consequences of immigration laws stretched to their breaking point. The Mayorkas case shows the limits of a piecemeal approach to reform. Single statutes cannot correct all the flaws of the system, inevitably leaving families and communities to languish.

By: Madeline Lohman, program associate with The Advocates for Human Rights’ Research, Education and Advocacy Program and a major contributor to Moving from Exclusion to Belonging: Immigrant Rights in Minnesota Today.