Recent changes in the United States’ immigration policies have drawn fresh condemnation from human rights experts and civil society, particularly as news spread that authorities had separated approximately 2,000 children from their parents at the country’s southern border. [IACHR Press Release; OHCHR Press Release; UNHCR Press Release] These changes include automatic criminal prosecution and detention of adults – including asylum seekers – entering the United States without authorization, separation and detention of children who crossed the southern border outside a port of entry with their parents, and a directive instructing immigration officials not to recognize a State’s failure to protect victims of gang violence and domestic violence as grounds for asylum. In response to criticism earlier this month, President Trump signed an Executive Order on June 20, 2018 to detain children and parents together, but that also raised concerns because it did not address the reunification of separated families and proposed modifying time limits on detention of families. [OHCHR Press Release: UN Experts] The policy changes add to long-standing human rights concerns related to U.S. immigration policy. This post reviews 10 of the primary principles implicated.
No Human Being Is Illegal
While international human rights law gives States wide latitude in determining their immigration policies, it also mandates that States respect migrants’ human rights, and protects asylum seekers and irregular migrants from criminal prosecution. In the words of the United Nations High Commissioner for Human Rights, “Seeking asylum is not a crime, and neither is entering a country irregularly.” [OHCHR Press Release: Hungary]
Human rights bodies have criticized the criminalization of irregular migration, which has increased under the Trump administration’s “zero tolerance” policy mandating the criminal prosecution of unauthorized entry. [IACHR Press Release; NYTimes: Migrant Children]. U.S. law provides that unauthorized entry to the U.S. is punishable by a fine or by up to six months’ imprisonment for a first-time offense and up to two years for subsequent entries. See 8 U.S.C. § 1325. Criminal prosecutions have markedly increased during the Trump administration, pursuant to “zero tolerance” and prior directives that resulted in more prosecutions of first-time unlawful entries and the targeting of particularly vulnerable migrants and asylum seekers. See, e.g., Human Rights First, Punishing Refugees and Migrants (2018).
The UN Committee on the Elimination of Racial Discrimination (CERD) has specifically recommended that the U.S. treat irregular immigration as a civil matter, rather than a criminal matter. See CERD, Concluding observations on the combined seventh to ninth periodic reports of the United States of America, UN Doc. CERD/C/USA/CO/7-9, 25 September 2014, para. 18. Similarly, the UN Special Rapporteur on the human rights of migrants and Working Group on Arbitrary Detention have both stated that criminal prosecution of migration offenses contravenes human rights standards. See Statement by the UN Special Rapporteur on the human rights of migrants, PGA Plenary Session – Criminalization of Migrants, 2 October 2013; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/7/4, 10 January 2008, para. 53. See also Human Rights First, The Rise in Criminal Prosecutions of Asylum Seekers (2017).
In expressing concern over the “zero tolerance” policy, Inter-American Commission on Human Rights (IACHR) Commissioner Margarette May Macaulay stated, “Irregular migration is not a crime.” [IACHR Press Release]
Best Interests of the Child
The United States is the only country in the world that has not ratified the UN Convention on the Rights of the Child, which requires in its Article 3 that authorities prioritize the “best interests of the child” in actions that affect minors. Nonetheless, this standard applies to the U.S. by virtue of other human rights commitments it has undertaken. For example, the IACHR has clearly stated that the U.S. has an international legal obligation to respect the “principle of the best interest of the child” in its immigration policies and enforcement decisions. See IACHR, Human Rights Situation of Refugee and Migrant Families and Unaccompanied Children in the United States of America (2015), paras. 7, 8, 46-53.
In response to the current crisis, 11 United Nations human rights experts and the UN High Commissioner for Human Rights raised concerns regarding the long-term psychological impact family separation may have on the children. [OHCHR Press Release: UN Experts] The High Commissioner referred to the American Association of Pediatrics’ characterization of family separation as “government-sanctioned child abuse” and called on the U.S. to ratify the UN Convention on the Rights of the Child. [OHCHR Press Release: 38th Session] The UN High Commissioner for Refugees and IACHR also stressed the importance of prioritizing “the best interests of children” when developing immigration policies. [UNHCR Press Release; IACHR Press Release]
Detention as a Last Resort
International human rights law provides that adult migrants may be administratively detained only in limited circumstances, and that migrant children generally should not be detained. For example, in its 2014 report on a visit to the U.S., the UN Working Group on Arbitrary Detention noted that “such detention is to be a measure of last resort, necessary and proportionate and be not punitive in nature, and that alternatives to detention are to be sought whenever possible.” See Working Group on Arbitrary Detention, Report of the Working Group on Arbitrary Detention on its visit to the United States of America (2017), UN Doc. A/HRC/36/37/Add.2, para. 21. An individual may not be indefinitely detained, even if the State is unable to deport him or her. See Human Rights Committee, General Comment No. 35: Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35, 16 December 2014, para. 18. Detention must be subject to judicial review to ensure these conditions have been satisfied on an individual basis. See Report of the Working Group on Arbitrary Detention on its visit to the United States of America, UN Doc. A/HRC/36/37/Add.2, paras. 26, 29. The same requirements apply to asylum seekers who enter unlawfully. See Human Rights Committee, General Comment No. 35, para. 18.
Human rights bodies have interpreted the “best interests of the child” standard to mean that detention of child migrants is generally not permissible. See Working Group, para. 42. The UN High Commissioner for Refugees (UNHCR) guidelines indicates that minor asylum seekers “should not be detained.” See UNHCR, UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers (1999), Guideline 6 (emphasis in original). The UN Human Rights Committee has stated, “Children should not be deprived of liberty, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration…” See General Comment No. 35: Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35, para. 18. Moreover, in the words of the Working Group on Arbitrary Detention, “when the child’s best interests require keeping the family together, the requirement not to deprive the child of liberty extends to the child’s parents and family members,” meaning that family detention is not permissible in this instance. See Report of the Working Group on Arbitrary Detention on its visit to the United States of America, UN Doc. A/HRC/36/37/Add.2, para. 46. See also IACHR, Report on Immigration in the United States: Detention and Due Process (2010), paras. 49-51.
Deterring immigration is not a permissible justification for detention under international human rights law, nor is private profit. See Report of the Working Group on Arbitrary Detention on its visit to the United States of America, UN Doc. A/HRC/36/37/Add.2, para. 43. The Working Group on Arbitrary Detention has expressed concern at the apparent economic incentive for increasing detention of migrants, given that many detention facilities are privately-owned or -operated and are required by U.S. law to maintain certain occupancy rates. See id. at para. 31.
Last week, the joint statement by 11 UN human rights experts called on the U.S. to release migrant children from detention, stating that “children should never be detained for reasons related to their own or their parents’ migration status.” [OHCHR Press Release: UN Experts] The IACHR similarly noted that “detention is never in the best interest of the child.” [IACHR Press Release]
Right to Life
Human rights law requires governments to refrain from arbitrarily taking a person’s life and to enact positive measures to prevent loss of life, especially with regard to individuals in State custody. See IJRC, Right to Life. Law enforcement agents may use only the level of force necessary to protect human lives, including at international borders. The UN Human Rights Committee, among other monitoring bodies, has previously criticized “excessive use of force” at the border; in 2014, it called on the U.S. to comply with the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which states:
Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
See Human Rights Committee, Concluding observations on the fourth periodic report of the United States of America, UN Doc. CCPR/C/USA/CO/4, 23 April 2014, para. 11; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, art. 9.
The most recent killing by border agents, of Claudia Patricia Gómez González, prompted the IACHR to call on the U.S. to conduct a “thorough investigation and to provide a satisfactory and convincing explanation of what happened.” [IACHR Press Release] This same body last year expressed “deep concern” regarding deaths dye to medical negligence and suicide in migrant detention centers in the U.S. [IACHR Press Release: Deaths]
Due Process in Immigration Proceedings
Human rights bodies have urged States, including the U.S., to ensure that immigration proceedings comport with due process. See, e.g., Concluding observations on the fourth periodic report of the United States of America, UN Doc. CCPR/C/USA/CO/4, para. 15. Moreover, all migrants are entitled to minimum due process guarantees that include the rights to: prior notification of the proceeding to determine their status, to have their detention reviewed by the relevant authority, a hearing and time to prepare, the assistance of a translator or interpreter, legal counsel, a decision on their rights and status that is reasoned and substantiated, notification of the decision, an appeal, and access to consular assistance. See, e.g., IACHR, Human Rights of Migrants, Refugees, Stateless Persons, Victims of Trafficking and Internally Displaced Persons: Norms and Standards of the Inter-American Human Rights System (2015), paras. 300 et seq. Decisions to remove or deport a migrant must be individualized and Decisions on deportation must be individualized and take into account “elements such as the seriousness of crimes and misdemeanors committed, the length of lawful stay in the United States, health status, family ties and the fate of spouses and children staying behind, [and] the humanitarian situation in the country of destination.” See Concluding observations on the fourth periodic report of the United States of America, UN Doc. CCPR/C/USA/CO/4, para. 15
Last week, the group of 11 UN experts called on the U.S. to provide due process guarantees for asylum seekers and other migrants, who, they noted, had been separated from their children without notice or an opportunity to challenge the action and faced possible deportation without a “proper individual assessment.” [OHCHR Press Release: UN Experts]
Right to Seek Asylum
International law, including the 1967 Protocol to the 1951 Convention Relating to the Status of Refugees, protects individuals’ right to seek asylum. This includes the opportunity to request asylum, due process in determination of that claim, and freedom from arbitrary detention or prosecution. Asylum seekers must not be criminally prosecuted for requesting asylum, no matter whether they enter the country without authorization. [Just Security] In its 2014 report on the U.S., the UN Committee Against Torture expressed concern at reports that immigration authorities were failing to provide asylum screening interviews and had made the grounds for asylum more restrictive. See Committee Against Torture, Concluding observations on the combined third to fifth periodic reports of the United States of America, UN Doc. CAT/C/USA/CO/3-4, 19 December 2014, para. 18.
This month, the UNHCR and IACHR expressed concern over the restricted asylum protections in the U.S. for those fleeing gang violence and domestic violence. [UNHCR Press Release; IACHR Press Release] On gang violence-related asylum claims, the Human Rights Committee, a treaty body that interprets the ICCPR and monitors compliance with the treaty, has previously found that States that have wrongly ignored evidence of gang violence and the country of origin’s lack of protections in gang-related asylum claims arising from Central America and denied asylum violated the rights to life and to prohibition of torture and inhuman treatment. 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. [IJRC: Canada]
The legal principle of non-refoulement protects individuals from deportation to a country where their lives would be at risk, regardless of whether they meet the legal requirements for asylum. See, e.g., Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/70/303, 7 August 2015, para. 38. As a party to the Convention Against Torture, the U.S. is obligated not to return an individual to a State “where there are substantial grounds for believing that he would be in danger of being subjected to torture,” pursuant to Article 3, and further, protects against cruel, inhuman, or degrading treatment under Article 16. Substantial grounds exist to believe an individual is at risk of torture when that risk is “foreseeable, personal, present and real.” See CAT, General Comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, Advanced Unedited Version, UN Doc. CAT/C/GC/4, 9 February 2018, para. 11. The Committee recently clarified that States should not deport individuals at risk of torture or ill-treatment by non-State actors, such as domestic abusers and violent gangs. See id. at para. 30. [IJRC: CAT]
Following U.S. policy changes, the IACHR and 11 UN human rights experts emphasized the United States’ obligation to respect the principle of non-refoulement. [IACHR Press Release; OHCHR Press Release: UN Experts]
Prohibition on Torture & Inhumane Treatment
The prohibition on torture, cruel, inhuman or degrading treatment or punishment is firmly established in international law. In the detention context, this prohibition extends beyond acts of physical violence to also require that conditions of detention are appropriate and humane, and access to medical care, adequate food and water, opportunities for recreation, and other basic needs. See, e.g., IJRC, Torture; IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas.
Recent reports have indicated that child migrants in U.S. detention facilities have been forcibly medicated, abused, and denied adequate food and water. [HRW; HuffPost; NPR] Amnesty International has condemned the family separations as torture. [Amnesty] Similarly, in its 2014 report on the U.S., the Committee Against Torture expressed concern about immigration detention centers for children, noting “reports of substandard conditions…the use of solitary confinement… [and] reports of sexual violence by staff and other detainees.” See CAT, Concluding observations on the combined third to fifth periodic reports of the United States of America, UN Doc. CAT/C/USA/CO/3-5, 19 December 2014, para. 19.
The principle of non-discrimination is enshrined in all human rights treaties, and protects all persons within a State’s territory or control from being denied fundamental rights on the basis of their race, ethnicity, or gender, among other factors. This principle is considered a jus cogens norm that binds all States. See I/A Court H.R., On the Juridical Conditions and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, 17 September 2003, para. 173(4).
Within the U.S., racial profiling by police and immigration enforcement authorities have raised human rights experts’ concern for years. The Committee Against Torture, for example, has drawn attention to authorities’ excessive use of force and racial profiling targeting immigrants. See Concluding observations on the combined third to fifth periodic reports of the United States of America, UN Doc. CAT/C/USA/CO/3-5, para. 26. The Committee on Elimination of Racial Discrimination raised similar concerns. See CERD, Concluding observations on the combined seventh to ninth periodic reports of the United States of America, UN Doc. CERD/C/USA/CO/7-9 25 September 2014, paras. 8, 17.
President Trump has repeatedly referred to migrants in derogatory and racist terms, and human rights monitors have warned against rhetoric and policies rooted in xenophobia or discrimination. [IJRC: High Commissioner; IACHR Press Release: TPS; IACHR Press Release: Defenders] Nonetheless, the Trump administration prevailed yesterday before the U.S. Supreme Court, which upheld his revised Executive Order instituting what was widely referred to as a “Muslim ban.” IJRC and other organizations have successfully sought human rights oversight of this policy, which the IACHR condemned as discriminatory and said required urgent action to resolve.
Respect for Family Life
International human rights law recognizes the right to respect for family life, including the rights to create a family and to receive State protection for the family. See, e.g., American Declaration of the Rights and Duties of Man, art. VI. For example, in a case concerning the U.S., the IACHR held that the government is legally obligated to take into account a migrant’s family ties and the impact on family members in deciding whether to order the migrant’s deportation. See IACHR, Merits Report No. 81.10, Case 12.562, Wayne Smith, Hugo Armendariz, et al. (United States), July 12, 2010.
In its statement regarding the current crisis, the UNHCR “urge[d] the United States to prioritize family unity” and “ensure safe haven for families fleeing life-threatening violence and persecution.” [UNHCR Press Release] UN experts called on the U.S. to adopt “[f]amily-based alternatives to deprivation of liberty.” In particular, the experts noted that family separations have occurred without providing information to the parents or children, and without a way to challenge the separation. [OHCHR Press Release: UN Experts]
Visit IJRC’s Online Resource Hub for more information on immigration and migrant’s rights, asylum and refugee law, children’s rights, and the United States’ international human rights obligations. See the relevant pages for explanations of the mandates and procedures of the IACHR, Human Rights Committee, Committee Against Torture, UN Special Rapporteur on the human rights of migrants, UN Special Rapporteur on torture, UN Working Group on Arbitrary Detention, and other human rights courts and monitoring pages. For materials related to IJRC’s 2016 training on the Human Rights of Migrants, visit the public Dropbox folder.