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Published — July 26, 2018 Updated — August 30, 2018 at 2:59 pm ET

Family separation, U.S. treaties and asylum obligations: What’s legal?

Buena Ventura Martin-Godinez, right, stands with her daughter Janne after being reunited at Miami International Airport, Sunday, July 1, 2018, in Miami. Lynne Sladky / AP

Putting whole families in detention also raises questions about child abuse


This post is part of our new community-driven reporting project, Ask Immigration Decoded. Submit your questions, and we’ll answer the most popular questions on our blog, Immigration Decoded.

In this post, we’re answering a question we received from Ileana: Aren’t these families protected under international human rights and refugee laws? Isn’t the separation considered torture to children?

Many migrant families that were separated after crossing the U.S. southern border want to apply for asylum, based on the threat of violence in their Central American homelands. International agreements and U.S. laws and obligations do require protections for asylum seekers, but critics claim that U.S. officials’ actions don’t always honor these obligations.

The issue is complex. A review of the recent history provides useful perspective and illuminates the developing debate.

Federal officials are scrambling to comply with court orders to unite all eligible families that were recently separated at the border; the deadline is day’s end, Thursday. Advocates for families doubt this will happen. The government admits that 463 parents’ cases are “under review” because some of the parents may have been deported, raising questions about the status of their children. Other parents who remain in detention say they signed forms that lead to deportation but didn’t understand them and thought that perhaps signing would help them get their children back faster.

“They feared they might never see their children again,” so they signed, said Shalyn Fluharty, who is managing attorney of the Dilley Pro Bono Project. “All they were consumed by was the safety and well-being of their children.”

The Dilley Pro Bono Project sends attorneys to the South Texas Family Residential Center, a detention center in Dilley, Texas, with the capacity to hold 2,400 women and children.

Meanwhile, the Trump Administration is pushing to expand the availability of family detention so families like these can be kept together—but confined to the centers.

Critics, including doctors who’ve advised the Department of Homeland Security, argue that family detention is abusive to children, just as separating them from their parents was.

Child abuse accusations

This spring, President Donald Trump’s administration launched a “zero tolerance” prosecution policy that essentially required separating children from parents as they crossed the border. The unprecedented policy, as the Center for Public Integrity reported in April, demanded that all adults entering the U.S. unlawfully at the southern border be jailed pending prosecution for illegal entry—even though a first-time crossing is a misdemeanor.

Rather than releasing asylum seekers pending hearings, (with the adults wearing ankle monitors in some cases), the administration began keeping parents in custody and flying small children and even infants thousands of miles away—to other states—often with no information about their parents’ whereabouts, as the Center reported.

The separation policy was rooted in administration arguments that separating children would deter Central American migrants from coming—and in prominent officials’ skepticism that asylum seekers from that region deserve refuge, as this report explains.

Criticism of the policy as cruel was swift, and on June 20 Trump issued an executive order halting the separation of children from parents. Colleen Kraft, president of the American Academy of Pediatrics, called the separations “government sanctioned child-abuse.” In response to a lawsuit, as the Center reported, federal Judge Dana Sabraw in San Diego set a series of deadlines for the government to reunify families.

On July 16, Sabraw, ordered a temporary halt to deportations of families to give them more up to least a week to decide their options once they’re reunified. “Nothing about this case involves the normal situation where parents and children remain together, and have time to make profound, potentially life-and-death decisions,” Sabraw wrote.

On July 17, two Department of Homeland Security consulting medical experts submitted a letter to the U.S. Senate Whistleblower Caucus calling on Congress to stop plans to dramatically expand family detention.

“As experts in medical and mental health in detention settings,” the doctors wrote, “we watched in horror as innocent children were forcibly separated from their parents as the administration’s ‘zero tolerance’ immigration policy was deployed.”

The doctors called separating children “child abuse,” but crucially, they also attacked the very concept of family detention, recounting stark neglect they found during 10 investigations into existing family detention centers, one now closed.

Among the cases:

  • A newborn found to have bleeding in the brain but who had not been seen by a physician until five days after arrival at a detention center.
  • A 16-month-old who lost 32 percent of body weight over 10 days due to diarrhea and who hadn’t been treated with IV fluids or taken to emergency care.
  • Children vaccinated with adult dosages.
  • Children whose fingers were fractured or slashed by heavy prison doors.
  • And in some locations, no availability of pediatricians or child and adolescent psychiatrists skilled at recognizing and treating trauma.

“The fundamental flaw of family detention is not just the risk posed by the conditions of confinement—it’s the incarceration of innocent children itself,” the doctors wrote. “In our professional opinion, there is no amount of programming that can ameliorate the harms created by the very act of confining children to detention centers.”

Trump’s position, though, is that “tough” policies are needed to discourage migration.

“Otherwise you’ll have millions of people flowing up and just overtaking the country and we’re not letting that happen,” Trump said in June. He asked Congress to pass legislation to allow the detention of children and parents together without the time limits imposed under a court case called the Flores Settlement and a subsequent ruling interpreted as setting a 20-day average time limit.

Detention, the administration argues, will ensure migrants appear in court, rather than disappearing while a hearing is pending. Migrant advocates argue that it’s inhumane to jail families because there are monitoring programs that allow asylum seekers to be freed, often to live with sponsors, and that have a solid record of getting them to appear in court.

United Nations’ representatives involved in human rights monitoring have also condemned Trump’s policies regarding families. In a statement, U.N. investigators specializing in the human rights of migrants and torture and degrading treatment argued that “the detention of children is punitive, severely hampers their development, and in some cases may amount to torture.”

Noting that asylum seekers at the border mostly hail from violence-torn El Salvador, Honduras and Guatemala, a U.N. press release added, Trump’s policies “effect on children and their families is devastation reserved largely for indigenous and other non-white migrants.”

U.S. treaty obligations

Asylum seekers are supposed to be extended basic protections under international treaties created to protect refugees after World War II. The U.S. accepted refugees after World War II, and in 1968 signed onto the 1951 Refugee Convention , which diplomats created, and the 1967 Protocol Relating to the Status of Refugees.

The 1951 treaty instructs signatories not to “impose penalties on refugees who entered illegally in search of asylum if they present themselves without delay.”

The U.S. immigration system, in keeping with these concepts, allows people to ask for a “credible fear” interview with asylum officers. Existing law allows for asylum if a case is made for persecution because of race, ethnicity, religion, political persuasion or a certain “social group” suffering persecution. If applicants pass the screening, they have a right to present their case in immigration court. If they don’t pass, they can appeal before an immigration judge. Sometimes relatively quickly, before facing deportation.

People in U.S. immigration proceedings, including children, do not have the right to appointed counsel, as they do in criminal proceedings, as the Center reported in a piece about teens’ struggles in asylum proceedings.

The administration has said that if they present themselves at U.S. ports of entry, asylum seekers will get a chance at a credible fear interview. But some families say U.S. Customs and Border Protection officers have bene turning them away and discouraging them from entering recently.

Susan Fratzke, specialist in forced migration, asylum and resettlement policy at the Migration Policy Institute, a Washington, D.C. think tank, said that like the United States, some European countries are also facing criticism for not complying with “the spirit of the convention.”

“The U.N. can raise concerns about non-compliance,” she said, “but has no control over how (countries) interpret their obligations.”


How border migration is testing the public’s grasp of due process and U.S. asylum obligations

What’s behind the policy separating kids from their parents at the border?

Ask Us Your Immigration Questions

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