The United Nations Human Rights Committee recently found that Canada must consider the evidence on widespread gang violence, including the targeting of witnesses, in El Salvador when considering a man’s claim that his removal from Canada to El Salvador would expose him to gang violence and irreparable harm; the Committee concluded that the State violated the rights to life and prohibition of torture and inhuman or degrading treatment in the International Covenant on Civil and Political Rights (ICCPR) by ordering the man removed after it failed to consider the totality of evidence. See Human Rights Committee, Jose Henry Monge Contreras v. Canada, Communication No. 2613/2015, Views of 12 May 2017, UN Doc. CCPR/C/119/D/2613/2015, paras. 8.2, 8.7-8.11. The complainant, Jose Henry Monge Contreras, alleged that he became a target of the gang Mara Salvatrucha (MS-13) after witnessing the murder of his brother and later participating in an investigation that resulted in the arrest and imprisonment of three MS-13 members. See id. at para. 8.2.
While gangs contribute to high murder rates in Central America, forcing many to leave the region to escape death threats and harassment by gang members, data from the office of the United Nations High Commissioner for Refugees indicates that only a small percentage of people are granted asylum after fleeing their countries. See Center for Gender & Refugee Studies, Gang-Related Violence. As of 2015 there were over 109,800 asylum cases pending in Mexico and the United States, most of which were attributed to increasing violence in El Salvador, Guatemala, and Honduras. See UNHCR, Global Trends 2015. While the Human Rights Committee’s opinion directly addresses Canada’s actions, it also has implications for other countries in the Americas who regularly review gang-related asylum claims, particularly the United States and Mexico.
Views of the Human Rights Committee
The Human Rights Committee ultimately found that Canada did not appropriately weigh the information presented by Monge throughout the asylum process. See Human Rights Committee, Jose Henry Monge Contreras v. Canada, paras. 8.6, 8.9. Generally, the Human Rights Committee will defer to the State party’s assessment of the facts unless it finds that a State party’s assessment was arbitrary or amounted to a denial of justice. See id. at para. 9.3. In this case, Canada argued that Monge did not identify ways in which his pre-removal assessment and subsequent decisions were arbitrary or amounted to a denial of justice. See id. at para. 4.12. However, the Committee found that the State did not give adequate weight to evidence on both the general human rights situation in El Salvador, particularly concerning gang violence targeting witnesses, and the lack of protection for him and his family specifically. See id. at paras. 8.9-8.10.
The Human Rights Committee reiterated its standards on removing a person from the State when “substantial grounds” exist to believe that there is a risk of irreparable harm to the individual. While the risk to the individual must be personal and there is a high threshold to prove “substantial grounds” for believing such a risk exists, the State party must consider the general human rights situation in the country of origin and all relevant facts when considering an asylum claim. See id. at para. 8.7.
The Human Rights Committee focused on evidence presented to the State that the State failed to give adequate weight to during the asylum procedure, including an affidavit of an expert on gang violence in Central America stating that returning Monge to El Salvador would place him in high risk of physical harm and death and that Salvadoran authorities would not be able to protect him; a statement by a Salvadoran policeman confirming that authorities did not have the capacity to protect Monge and his family from MS-13; a statement by Monge’s wife detailing MS-13’s statement regarding her and her daughters’ safety, specifically that they were only alive because Monge would return for them; and a medical certificate confirming that Monge suffered from post-traumatic stress disorder and would be vulnerable to psychological collapse in El Salvador. See id. at paras. 8.9, 8.11. Further, the Human Rights Committee noted that the State party failed to give weight to certain facts in general human rights reports on El Salvador, including that gang-related violence persists in El Salvador, that it affects victims and witnesses of crimes, and that Salvadoran authorities are unable to provide protection to those that would be affected. See id. at para. 8.10.
Given the totality of this information, the Human Rights Committee found that Monge’s removal to El Salvador would violate articles 6 and 7 of the ICCPR (the rights to life and to prohibition of torture and inhuman treatment, respectively) and that the Sate failed to take into account the totality of this information when it assessed the risk of irreparable harm during Monge’s removal proceedings. See id. at para. 8.11.
As a State party to the ICCPR and its Optional Protocol, Canada has accepted the Human Rights Committee’s competence to review individual complaints that may give rise to violations of the ICCPR. See id. at para. 11. As such, Canada and all States parties to the ICCPR have an obligation to refrain from extraditing, deporting, or removing from their territory a person that faces a risk of irreparable harm as contemplated by Article 6 (the right to life) and Article 7 (prohibition of torture and inhuman or degrading treatment) of the ICCPR. See id. at para. 8.7. Additionally, the Human Rights Committee has explicitly stated that, with the exception of Article 25 of the ICCPR, which pertains to political participation, all the rights guaranteed in the ICCPR apply to persons within a State’s territory and subject to its jurisdiction. See Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant, UN Doc. HRI/GEN/1/REV.9(VOL.I), 11 April 1986.
Further, other sources of international law confirm individuals’ right to non-refoulement. See IJRC, Asylum and the Rights of Refugees. Non-refoulement refers to the right not to be returned to a territory where the individual’s life or freedom is threatened due to race, religion, nationality, political opinion, or membership in a particular social group. See IJRC, Immigration & Migrants’ Rights. Canada is also a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and a party to the 1951 Convention relating to the Status of Refugees and its protocol. Under both, Canada may not remove an individual if there is a threat of irreparable harm.
The United States and Mexico, both of which also receive applications for asylum based on gang violence in Central America, are also a party to the ICCPR and bound to uphold and protect the rights within it. The United States, though, does not allow for the Committee to review individual complaints against it, but Mexico does.
Background: Gang Violence in El Salvador
MS-13 was formed in the United States in the 1980s, but after years of deportations, it grew into an international criminal organization with its roots in El Salvador. [Washington Post] Currently, El Salvador is considered one of the most dangerous places outside of war zones as a result of persistent gang violence in the region. [The Guardian] Various reports indicate the extent of gang violence in El Salvador, including violence against witnesses. [The Guardian; LAWG] Persons living in gang-controlled areas are targeted and killed for reasons such as crossing into another gang’s territory, failing to pay extortion, and witnessing a crime, among others. [LAWG] Most recently, the Salvadoran government has taken an “iron fist” policy against gangs that allow deadly force to be used against suspected gang members without consequence. [The Guardian] Reports indicate that this approach has resulted in extrajudicial killings, in addition to other human rights violations by the Salvadoran government. [The Guardian]
Given this environment, many Salvadorans, as well as Hondurans and Guatemalans who also live in countries with high rates of gang violence, choose to flee and seek asylum in other States within the region. [WOLA] Individuals who flee gang violence and claim asylum are often either former members of the gang who wish to leave but will be persecuted for attempting to do so or cannot escape gang violence due to familial ties or the area in which they live. See WOLA, Central American Gang-Related Asylum (2008). These individuals face legal barriers when claiming asylum in countries like the United States not only because they have no right to appear before an immigration judge or asylum officer before being deported, but also because detention of asylum seekers deters their entry in the first place. See HRW, “You Don’t Have Rights Here” US Border Screening and Returns of Central Americans to Risk of Serious Harm (2014). Additionally, in places such as the United States, judges often deny asylum claims for those with connections to gangs or seeking asylum based on their resistance to join a gang for “lack of visibility and particularity”— requirements to establish that the person is part of a “social group” protected under asylum law. See Beacon of Hope or Failure of Protection? U.S. Treatment of Asylum Claims Based on Persecution by Organized Gangs (2012), at 7. This leaves many people at risk of being deported to countries where they face risk of serious harm. See HRW, “You Don’t Have Rights Here” US Border Screening and Returns of Central Americans to Risk of Serious Harm (2014).
In the United States, the Trump administration has heightened its efforts to deport MS-13 gang members currently in prisons within the State, a move that many fear will strengthen and reorganize gang membership in El Salvador. [Washington Post] Legislation has been proposed to address this issue, including measures to monitor returning gang members in El Salvador and to create “internment centers;” however, human rights activists question the legal implications of holding gang members not yet convicted of a crime in El Salvador. [Washington Post]