Symposium Recap: Protecting the Human Rights of Migrants in California

Francisco Rivera and Roxanna Altholz discuss advocacy before the Inter-American Commission on Human Rights

On September 23, 2016 more than 100 people gathered at University of California Hastings College of the Law in San Francisco for a training on the human rights of migrants hosted by the International Justice Resource Center and the Center for Gender & Refugee Studies. The distinguished line-up of speakers included experts on international human rights advocacy and on migrants’ issues. The experts reviewed current challenges for migrants, including detention and raids, access to legal representation, asylum and protection, and migrant workers’ rights. The purpose of the training was to place these challenges in a broader international human rights context in order to guide lawyers and advocates in applying human rights norms and tools to their litigation and advocacy efforts in California. The training covered a range of issues, but one of the main topics during the day was that international human rights law and advocacy, when pursued, should be part of a larger and coordinated advocacy strategy.

See the agenda for additional details and visit the online supplementary materials folder to view selected reports, manuals, factsheets, and other documents related to migrants’ rights and the training. We anticipate posting the video recordings of each session later this week on IJRC’s trainings webpage. IJRC thanks the Center for Gender & Refugee Studies for co-hosting the event, and Public Counsel and the International Law & Practice Section of the Bar Association of San Francisco for their co-sponsorship of this program. Visit the IJRC website to keep informed of future IJRC trainings and events, or join our mailing list.

Why Migrants’ Rights?

Current migration trends worldwide have increased the risk of abuse for some of the most vulnerable populations. At a time of unprecedented migration, States are failing in their obligations to protect citizens. Speaker Cynthia Buiza highlighted that for many, staying in their country of origin means staying in a situation of peril, but leaving poses additional challenges and risks.

States’ political atmosphere, corruption and impunity, economic climate, environmental disasters, and domestic human rights violations all induce pressures that foster migration. Individuals and families are forced out of their home countries as a result of poor economic conditions, protracted asymmetrical wars, environmental factors, or their sexual orientation. However, upon arrival to a host country, migrants often face other rights violations, many of which are a direct consequence of their migratory status.

Detention and Raids

In California, the migrant population has increased significantly in the last couple of years. However, efforts to deport undocumented migrants have also increased nationally, resulting in negative consequences for families and children. As of June 2016, there have been 2.5 million deportations under the Obama administration – more than under the Bush administration. Deportations occur under the Priority Enforcement Program (PEP), which coordinates local police forces with the Department of Homeland Security to identify for deportation individuals who have committed certain crimes or actions; however, the result is often flawed, and according to Laura Sanchez of CARECEN, families and children may be targeted along with terrorists. Additionally, speakers noted that deportations and detentions have resulted in a significant number of families being separated, children being introduced to the foster care system, and an elevated situation of poverty for families.

Speaker Eleni Wolfe-Roubatis described additional factors that create negative conditions for individuals, including the overuse of monitoring systems, such as ankle bracelets and curfews, for individuals released from detention and the location of detention centers. On the former, Wolfe-Roubatis noted the negative impact on an individual’s physical and psychological well-being. Detention centers, according to Wolfe-Roubatis, have been placed in areas with limited access to attorneys that may be able to provide legal representation. For example, the Bakersfield detention center is almost 300 miles from San Francisco, but only 120 from Los Angeles, yet it was placed under San Francisco’s jurisdiction.

Access to Legal Representation

Given that the right to appointed counsel does not attach to removal proceedings, those who cannot afford attorneys are at a greater risk of being removed from the country, including children who are forced to represent themselves during removal proceedings. Speakers lamented the recent Ninth Circuit ruling in J.E.F.M. v. Lynch that dismissed for lack of jurisdiction over the claims that minors have a due process and statutory right to counsel in deportation proceedings. California has the second highest number of unaccompanied children in removal proceedings. Speaker Christine Lin referred to a study from the Transactional Records Access Clearing House that found that 73 percent of those who are represented during removal proceedings are allowed to stay in the United States whereas 80 percent of those without an attorney are ordered removed.

Although more work is necessary to achieve the goal of representation for all in immigration court, some progress has been made. For example, as a result of Franco-Gonzalez v. Holder, immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves in immigration hearings must have legal representation.

Access to Asylum and Protection

U.S. customs and border control are the gate keepers to access asylum for those that make it to U.S. territory; however, U.S. foreign policy agreements with Mexico, Honduras, El Salvador, and Guatemala have created barriers to protection before people reach U.S. territory. Speaker Karen Musalo noted that U.S. aid to countries like Mexico and Guatemala to intensify border enforcement constructively prevents persons from getting to a country where they can seek protection from persecution, in contravention of the principle of non-refoulement, or the right to not be forced to return to a country in which they are liable to be subjected to persecution. She refers to this practice as constructive refoulement.

Expedited removal procedures in which would-be asylum seekers are not given a “credible fear of persecution” interview, inconsistent interpretations of asylum law, and a lack of access to counsel also prevent asylum seekers from resettling in U.S. territory. Several speakers voiced concerns over inconsistent interpretations of asylum law by immigration judges and officers. For example, a Houston judge has a zero percent rate of granting asylum, while a judge in New York has a 96 percent grant rate. Further, offices in San Francisco are known to grant affirmative asylum decisions 73 percent of the time, while offices in Houston, only 20 percent. Speakers also discussed access to counsel for asylum seekers pointing out that there are not enough attorneys with expertise in asylum law to meet the demand.

Migrant Workers’ Rights

On the face of the law, undocumented workers have the same rights as documented workers in the U.S. However, Christopher Ho stated that, in practice, undocumented workers face various obstacles to realizing the remedies the law provides given the disconnect between employment laws and the immigration system. Migrant workers are some of the most vulnerable to wage violations, hostile work environments, and employers’ retaliatory practices as a result of their immigration status. Many endure violations for fear of being reported to immigration authorities. Ho noted several examples where workers have prevailed against their employers under employment law; however, he also stated the barriers to bringing a case, which include limited resources, limited access to counsel, and the extended duration of litigation proceedings.

Speaker Debra Smith reminded the audience that the Equal Employment Opportunity Commission (EEOC) is an option for migrant workers to bring complaints against an employer, and that the agency will be as creative as necessary to pursue accountability. She assured participants that the EEOC will conduct investigations on workplace violations without ever asking a client whether or not they are undocumented. Smith gave several examples of cases litigated by the EEOC on behalf of migrant workers, including instances when the workers received monetary reparations. She further stated that the EEOC can issue U and T Visa certifications.

International Human Rights Framework

UN Human Rights Mechanisms and Migrants’ Rights

Given the concerns outlined above, the international human rights framework can complement local litigation and advocacy efforts to advance the rights of migrants in California. The U.S. has international legal obligations relevant to migrants’ rights because it has ratified the International Covenant on Civil and Political Rights (ICCPR); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Elimination of all forms of Racial Discrimination (ICERD); the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

There are two main categories of UN entities that enforce human rights norms: treaty bodies and Charter bodies. Treaty bodies are each created by a specific treaty and are responsible for monitoring Member States’ compliance with that treaty. With regard to the U.S., their key function is to review reports – by States and by civil society – on governments’ implementation of their treaty obligations.

Charter bodies derive from the UN Charter and include the Human Rights Council, special procedures, and the Universal Periodic Review (UPR). The Human Rights Council is an intergovernmental forum for policymaking and discussion on human rights issues. The Council’s special procedures are independent experts appointed to monitor specific thematic topics or individual countries, and report back to the Council and General Assembly. The special procedures may also receive and follow up on individual complaints of rights violations, through communication with the State concerned. The UPR is a peer-to-peer State review conducted by the Human Rights Council in which civil society may be involved. It provides an opportunity for advocates to lobby States, ask questions, and make recommendations on their human rights practices.

Speaker Sarah Paoletti noted that the treaty bodies that enforce the ICCPR, Convention against Torture, and ICERD are particularly relevant to the U.S in advancing the rights of migrants. Additionally, special procedures created by the Human Rights Council, including the Special Rapporteur on rights of migrants; Special Rapporteur on violence against women, its causes and consequences; and the Special Rapporteur on the rights to freedom of peaceful assembly and of association, as well as the UPR provide key opportunities for advocates to raise migrants’ rights issues in the U.S. Paoletti gave several examples of engagement by U.S.-based advocates with the different UN human rights mechanisms, and highlighted some of the challenges and complexities.

Speaker Eleanor Openshaw flagged the UPR’s follow-up recommendations as an opportunity for advocates to place issues regarding immigrants’ rights on the Human Rights Council’s priority list. However, she noted that this would require finding allies and networks to partner with in order to more effectively navigate the system. Both speakers emphasized that advocates will want to take into account the timing of each visit, complaint process, or review procedure; the outcomes available; and their own goals in deciding which UN human rights body to engage on a particular issue.

The Inter-American System

The Inter-American System consists of the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). The IACHR is a quasi-judicial body that may decide complaints (petitions) against all 35 Member States of the Organization of American States, including the U.S. The IACHR may receive petitions from individuals, groups, non-governmental organizations, and States. It also issues precautionary measures (emergency protection), conducts country visits, publishes reports on human rights conditions, holds public hearings on cases and thematic questions, and monitors thematic topics through its rapporteurships. Cases must first be decided by the Commission before they can be referred to the Court. The Court, however, does not have jurisdiction over the U.S. given that the U.S. has not ratified the American Convention or recognized the Court’s jurisdiction. Nevertheless, the Court’s jurisprudence and advisory opinions are relevant to understanding the United States’ regional human rights obligations, and it has the authority to order the States under its jurisdiction to take provisional measures to protect people in urgent situations of risk.

The IACHR’s various activities, including thematic hearings and site visits, provide advocates with opportunities to be creative and use different tools to bring their issue into the spotlight. Speaker Roxanna Altholz noted that the U.S., in the past, has been receptive to the Commission’s findings and involved in its hearings. Speaker Francisco Rivera and Altholz both highlighted that thematic hearings are not about individuals but provide a platform to frame issues in a broader context. Speakers who discussed the Inter-American System and UN mechanisms all emphasized that it is necessary for advocates to have a coordinated strategy that considers the relevance of human rights to clients, the community, and the cause.

Effective Advocacy

While discussing the various challenges that migrants face in California and the international avenues that victims and advocates may pursue to strengthen migrants’ rights, the speakers throughout the training noted some key strategies for effective advocacy.

Coordinated Strategy

First, with regard to using international human rights mechanisms, there was consensus in the room that effective advocacy before international mechanisms requires a coordinated strategy between advocates, victims, survivors, and communities. Speakers emphasized that finding allies and networks, as well as organizations that know how to navigate the system is crucial to any cause. Speakers warned that advocacy using international mechanisms is best when it is not done in isolation. For example, submitting one petition to the IACHR is not as effective as developing a coordinated plan that takes into account hearings, country visits, or UPR recommendations. Additionally, speakers noted that—partly because of lack of resources—special rapporteurs with both the UN and the IACHR have been issuing joint statements. Thus, the focus, some suggested, should be on what a broader, international or national strategy can achieve.

International Advocacy as Tool to Provide Information to Government Officials

Further, speakers suggested using international human rights mechanisms to remind U.S. federal agencies that what goes on in Washington D.C.’s headquarters is not reflective of the reality on the ground. This may be done during the Human Rights Council’s sessions, the UPR, or country visits when the U.S. makes statements on the record and civil society has an opportunity to introduce facts regarding the situation on the ground.

International Human Rights Arguments in Domestic Proceedings

In terms of dealing with asylum seekers, it was suggested that advocates use international human rights standards in their domestic litigation to strengthen their arguments. For example, the Universal Declaration of Human Rights recognizes a right to seek and enjoy asylum, but it is not often cited in U.S. litigation. Speaker Karen Musalo suggested that while touching hearts and minds is critical during litigation proceedings, consistently invoking international standards could be an important part of a bigger strategy.