Human Rights at Home Blog

Working in Dilley, Texas - A Law Student's Experience

Editor's note:  Margaret Drew introduces Michael Duenas, third year law student who worked helping detained, undocumented mothers during his spring break. Michael is wearing a red tie in the posted photo.

He writes:

 My name is Michael Dueñas and I am a third year enrolled in the Immigration Law Clinic at UMass School of Law. This is my fourth semester in the clinic. Through my involvement in the clinic and my volunteer work with the immigrant community in New Bedford, I have been exposed to current immigration issues.

The CARA project is an ambitious humanitarian project that provides legal aid to those arriving from Latin American countries without proper documentation to enter the United States. The Catholic Legal Immigration Network, the American Immigration Council, the Refugee and Immigrant Center for Education and Legal Services, and the American Immigration Lawyers Association, are collectively known as CARA.

The chain of events that the undocumented detained mothers go through is as follows. First, the mothers are presumably detained at the border by Customs and Border Patrol or they self-report at an inspection site. Once they are in ICE custody, they are taken to a holding facility that has no chairs or beds, simply benches and concrete floors. Sometimes the stay at this facility is short, but based on the information we obtained from the mothers, the stays usually last several days. The women are forced to sleep sitting down on the bench or on the floor and the lights are never turned off. They are fed ham and bread. They are not allowed to shower and given minimal, if any, medical attention. The mothers refer to the two faculties where they are originally detained as the “Ice Box” and the “Dog Pound”. Finally, the mothers are then taken to the facility in Dilley. All of the mothers have their children with them, kids between ages 1-4 .

I was able to talk to mothers from Mexico, Guatemala, Honduras, and El Salvador. They all shared their unique stories with me. As one mother told me as she fought back tears and her daughter was grasping at her trying to get her attention, “we didn’t want to leave our home, but if we stayed, we would have died.”

A different mother told me that her husband was kidnapped by the Zetas drug cartel because he could not pay the tax imposed by the cartel. When I inquired further, she told me, “we didn’t have money to eat, how were we going to pay the tax?” The drug cartel came for him. This mother told me that when the cartel came to take her husband, she tried to stop them by holding on to her husband. But she was pushed to the ground by the backside of a riffle. That same night she took her four kids and fled. First to a friend’s house, who gathered up money from friends and neighbors for a bus ride to Laredo. They all got off the bus and walked up to a Customs and Border Patrol officer and asked for help.

Then there was the mother who thought a family member might be able to pay a bond for her. So I took her into a room with a phone and we called her relative. After I introduced myself, I gave the phone to the mother. The mother started crying, telling her relative that she was okay, they were okay, for her relative not to worry. They were alive and not to worry about money they had $40. They were alive, therefore they made it. They crossed thousands of miles on their own and made it with $40 left in their pockets. I let that sink in. The mother and children had fled their home, with no plan on returning, and they were, as she put it, “fine”. They fled because they had to for safety. They are “fine” because they are alive.

Then there was a declaration that I took for a  mother who did not pass her credible fear interview. When this happens, the volunteer lawyers and law students take declarations from the women, document them in English, and prep the client to go before an Immigration Judge. The following are portions of her declaration:

On February 20, 2016, we fled for the United States.

After I realized that the gang knew where we were, we decided to flee to the United States. Unfortunately, I did not have enough money for all three of us. We sat down as a family and decided that only one of my children and I would go. I had to leave my daughter behind with my sister. It pains me to have left her, but my other child was the one in danger. The Mara 18 wanted him.

I had to get my son out. We were not safe anywhere. My daughter understood and supported the decision. It breaks my heart to have had to choose between my son and my daughter. As a mother, I wanted to bring them both, but I did not have enough money, so she had to stay.

CARA persuaded the Immigration Judge to overrule this mother’s credible fear interview decision. For the time being, this mother and son did not have to return to their hell. For the time being they were allowed to stay.

There were several hundred mothers there, with their children, unable to go home. They no longer had a home. All of these mothers had horrific stories. They fled as result of violence. They were here asking for help. Asking for a new home. The women held at the Dilley Detention Center are amazing mothers. They are all fearless warriors. They all came to the United States fleeing harm. They all came with their children. They all came asking Lady Liberty to grant them asylum.

I have had a few transcending life experiences: my college days, my Peace Corps Service in Costa Rica, and these last few years in law school.  My week in Dilley is now one of those experiences.  Even though it was much shorter in duration, the mothers that I met that week, the stories that they shared with me, and the courage that I witnessed, will forever be with me.

 

 

 

 

Money Talks - This Time in the Language of Human Rights

When the Georgia legislature passed a bill that would protect religious organizations when they discriminate against gay and transgender individuals, the business community reacted.  The "religious freedom" bill would have permitted faith based organizations to discriminate because of sexual identity. In what were likely unnecessary provisions, the bill also would have protected clergy who decline to perform same sex marriages and those who would not attend weddings based on their religious beliefs.

The Georgia statue was not unique. It followed a wave of states passing similar legislation.  Georgia's Governor Deal vetoed the bill, saying it was unnecessary to protecting religious freedom.  He also claimed that his decision was a matter of "character" of the state.   Deal said that "Georgia is a welcoming state." What was out of character for Governor Deal was his decision to veto the bill.  But he had impressive economic pressure to do so.  

Major corporations threatened to move their operations from Georgia.  Fans of "The Walking Dead" would no longer see their show filmed on a Georgia landscape because AMC threatened to film elsewhere.  Disney and Marvel joined AMC in stating that they are inclusive companies and would no longer film in Georgia.  Perhaps the most economically powerful company that threatened to leave the state is Coca-Cola, for decades a major Atlanta employer.  The National Football League announced that the chances of Atlanta hosting a super bowl would be hurt. 

While businesses such as Bank of America in Charlotte, NC,  have voiced concern about their state's recent array of anti-gay and transgender legislation, they did not assert their economic power to prevent the enactment of the bills. Granted, the NC bill was passed and signed into law during a twelve hour period.  BOA and others (PayPal, Dow Chemical, NBA and Google) have voiced opposition but have not threatened any economic consequences.  

By contrast, Georgia based businesses put money on the line.  While re-locating a major business, such as Coca-Cola, would cost millions of dollars, the economic damage to the state would cost more.

Cheers to these Georgia businesses for using their power to effect positive change and promoting human rights principles along the way.

 

 

Religious Freedom or Anti-Gay Disguise?

If it had not been clear enough since last spring’s brief controversy Indiana’s Religious Freedom Restoration Act, the struggle for sexual orientation anti-discrimination was not about to cease with just a pro-gay Supreme Court marriage decision over the summer.  In fact, the recent news of anti-gay legislation passing through Georgia’s state legislature (it’s now on Governor Deal’s desk awaiting signature) gives pause for the thought that marriage equality just wasn’t enough for full equality. 

But what some might think is a step backward from Obergefell is actually part of the political incrementalism that keeps the importance of gay equality alive.  Obergefell was not—and should not be considered—the full-stop to progress in gay rights.  With the recent rise of conservative state legislatures passing bathroom bills against transgender school children and passing legislation, such as the one in Georgia, that would consequently allow faith-based groups to deny serves against same-sex couples and LGBT individuals, the movement presses on. 

The state of the gay rights struggle has been contextually one in which religion has been the both sword and shield.  First, religion was used to cast the behavior of sexual minorities as immoral and thus also deny them of protections within their civil liberties.  But once morality was no longer the effective underlying logic, the rise of religious liberty rhetoric began to take more presence in the debate over gay rights.  In the aftermath of Obergefell, where same-sex couples were given the right to partake in an institution that has both civil and religious significance, the defense of religious liberty was emblematically evoked by the likes of Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples.  Davis defended her actions by claiming that her religious beliefs conflicted with homosexuality and her freedom of religious exercise shielded her from having to issue marriage licenses to gay couples. 

More clearly than ever, the debate now should move forth to investigate where one right begins and another ends.  Religious freedom is an imperative liberty in this country and it should continue to be in a society that embraces many different religious practices and ideologies.  But rights and freedoms are not absolute.  This notion includes the freedom to exercise of religious beliefs.  What needs to happen every time religion is being used to combat the recognition of gay rights is not only the acknowledgment that religious liberties already deserve protection under the Constitution.  We know that already; and frankly that’s the distraction in the political and legal rhetoric that leads to bills such as the one in Georgia or to the Kim Davis incident last fall—all pronouncements from an anxious body politic that craves that validation.  Instead, it is about time that the debate has shifted toward analyzing whether one’s exercise of religion has overreached in the context of gay rights and thus created a cognizable harm in the civil liberties of another—whether that’s a dignitary harm or some other legally-recognized injury.   

Recently, this topic has received some recent scholarly attention.  In a short passage in Dean Erwin Chemerinsky and Professor Goodwin’s forthcoming Georgetown article, Religion Is Not A Basis For Harming Others, Chemerinsky and Goodwin alluded to the idea in the gay rights context an argument for restricting religious freedom might be based on an infliction of dignitary harm.  Marvin Lim and Louise Melling also recently co-wrote a piece on this topic in the Journal of Law and Policy more directly to that effect.  Other scholars such as Professors Douglas NeJaime and Reva Siegel are sharing their forthcoming ideas similarly. But more legal and scholarly spotlight must shine upon this piece of the debate—that religious liberties are not absolute and must be constitutionally regulated in order to balance the panoply of civil liberties that is protected by the Constitution and that individuals in our society enjoy.         

US Mayors Join Others Worldwide in Promoting Inclusive Growth

On March 29, 2016, Mayors from around the world, including many from the U.S.  will come together in New York City to launch the Inclusive Growth in Cities Campaign.  "Champion Mayors" from the US who have already joined the effort hail from Mineapolis, Los Angeles, Birmingham and many others.  Sponsored by the Organisation for Economic Co-operation and Development (OECD), the Campaign is described as follows;

"Cities and metropolitan areas have a crucial role in making inclusive growth happen. They are major generators of growth and economic opportunity: almost 60% of jobs created in the OECD area between 2000 and 2013 were in 275 metropolitan areas. Economic and social mobility has historically been higher in large cities.

However, rising inequalities, poor quality of services, fragmented labour markets, and non-inclusive institutions challenge the capacity of cities to grow inclusively – that is, to allow people both to contribute to and share in rising prosperity.

 

Launching an inclusive growth for cities Campaign

To operationalise Inclusive Growth in cities worldwide, the OECD will launch an Inclusive Growth in Cities Campaign. The campaign aims to increase awareness of rising inequalities, refocus the debate on concrete solutions, and empower local governments as leaders in the transition towards more inclusive growth. Central to this campaign is the creation of a network of mayors to promote Inclusive Growth.The OECD will invite mayors from around the world to become Inclusive Growth Champions, who are invited to:

Participate in an Inclusive Growth in Cities workshop on 29 March 2016 in New York    Endorse a New York Proposal for Inclusive Growth in Cities   Help shape a policy roadmap for inclusive growth in cities   Voice their support for an inclusive growth policy agenda in their cities and countries   The work of the Champion Mayors will also inform the OECD’s recommendations on inclusive growth, which will be presented to OECD member countries and emerging economies in 2016."

 In 2013, Benjamin Barber speculated about what would happen If Mayors Ruled the World.  With this new Campaign and other developments like the new Global Parliament of Mayors, his observations seem increasingly prescient. 

Going Regional: Utilizing the Unique Tools of the Inter-American Commission

By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute

In two weeks, human rights advocates from across the Americas will travel to Washington to D.C. to present some of the most pressing human rights challenges they face to the Inter-American Human Rights Commission on Human Rights (IACHR) in a series of fifty hearings, spanning four days and covering twenty countries.  U.S.-based advocates will be an integral part of the mix, addressing U.S.-specific issues as well as political rights, labor, health, security, and freedom of expression and association throughout the member states of the OAS.

Three of the Commission’s thematic hearings will focus specifically on the U.S.:

• Human rights and access to water;

• Human rights situation of migrant and refugee children and families; and
• Public debt, fiscal policy and poverty in Puerto Rico.

These thematic hearings reflect a growing trend of U.S. advocacy before the Commission.  In the past thirty years, U.S. advocates have filed more than 130 cases and communications with the IACHR, resulting in landmark decisions, including in Lenahan (Gonzales) vs. U.S. and Wayne Smith, Hugo Armendariz et al vs. US.  Indeed, US advocates are most familiar with the IACHR as the one venue that accepts cases solely on the basis that the U.S. has violated human rights norms.

But the emphasis on cases belies the fact that the IACHR offers a number of tools to advance human rights accountability.  Thematic hearings are one such tool.  These hearings can address the same substantive issues as a case, but they can be broader in scope and look beyond individualized circumstances.  Individuals, organizations, and coalitions, can request thematic hearings, which provide an opportunity to address structural, systemic, and cross-cutting issues, and can address issues in one or more countries in the OAS region.

To date, the IACHR has held close to forty thematic hearings focused squarely on U.S. issues.  Recent hearings have addressed solitary confinement, juvenile justice, the U.S. torture and rendition program, indigenous rights, racial discrimination, rights of migrants and farm workers, excessive use of force, stand your ground laws, the right to water, and Guantanamo, among other concerns.  Currently, the IACHR receives more requests for thematic hearings on the U.S. than it can accommodate.  

So, how can hearings advance domestic human rights advocacy, and how do they work?  There is surprisingly little public information on these topics.  The only written record that the Commission creates after a hearing is a press release that mentions all the topics covered in a period of sessions, and the hearings themselves are webcast. 

In an effort to demystify the thematic hearings process, and to highlight how U.S. advocates are using them, the Columbia Law School Human Rights Institute recently published a thematic hearings resource guide.  This guide uncovers a number of key insights into ways that advocates can effectively shape hearing requests; maximize the impact of hearings, and leverage them in future advocacy.  The lessons drawn from savvy human rights advocacy relating to national security, migrants rights, criminal justice reform, and the right to water, illustrate how U.S. advocates use thematic hearings as a platform to raise awareness of human rights issues; to call for specific government action to respect and protect human rights; and to strengthen collaboration with local, national, and regional partners.  In addition to distilling the lessons learned from these examples, the guide offers recommendations on ways that thematic hearings can reinforce advocacy at the United Nations, and focus the Commission on a particular human rights concern moving forward.  Indeed, thematic hearings requests themselves can inform the activities of the Commission as a whole, as well as the work individual IACHR Commissioners, each of which is assigned to one of the following ten thematic areas:

• Rights of Indigenous Peoples
• Rights of Women
• Rights of Migrants
• Freedom of Expression
• Rights of the Child
• Human Rights Defenders
• Rights of Persons Deprived of Liberty
• Rights of Persons of African Descent and Against Racial Discrimination
• Rights of Lesbian, Gay, Trans, Bisexual, and Intersex Persons
• Economic, Social, and Cultural Rights

By situating requests for hearings within the context of the Commission’s past activities, strategic priorities, and recent international legal developments, advocates can increase the chances that the Commission might take up a given issue.  The Commission’s annual reports, thematic reports, past hearings, case decisions and recent civil society questionnaires all offer helpful guidance into the issues of particular interest to the Commission— information that can help shape hearing requests.

A review of the recent work of the Commission highlights an increasing focus on economic, social, and cultural rights, as well as lgbti issues, which provide new openings for advocacy.  Building on the lessons learned from past hearings, U.S. advocates can continue to leverage thematic hearings as a vital component of efforts to build the record on human rights in the United States to address these and other human rights issues.  The Institute’s resource guide is a useful point of departure to better understand the benefits and limitations of thematic hearings, and the ways they can enhance human rights accountability.

Time to End State-Sanctioned Assaults on Our School Children

 by Tamar Birckhead 

When I arrived in North Carolina over a decade ago to teach and practice law, it was a bit of a culture shock for someone who had rarely been south of the Mason-Dixon line. In juvenile delinquency court, judges would tell tales from their own childhoods that sounded almost too clichéd to be true: mamas beating their misbehaving children with a switch that the child had to cut himself, schools located miles from home when the only option was to walk and teachers paddling students as a regular component of classroom discipline.

Because I practice in counties where the local school boards do not allow corporal punishment, I have not encountered it firsthand, but a recent report by NC Child, a nonprofit advocacy group, reminded me that there are about 15 districts (out of the state’s 115) where teachers and administrators are permitted to hit students.

The state’s laws on corporal punishment allow “reasonable force” to be used, which is defined as that which does not cause an injury requiring medical attention beyond simple first aid. This means that schools are the only place in North Carolina where an adult can strike an unrelated child and not be criminally prosecuted for assault.

Parents may opt out of the use of physical discipline on their child only by completing a form at the beginning of the school year. Otherwise, it is assumed they agree. When parents have opted out, the student may instead be suspended for offenses that would otherwise not require suspension if corporal punishment could be used.

Read more here.

According to an annual report issued this month by the N.C. Department of Public Instruction, in 2014-15 there were 147 uses of corporal punishment, a 20.5 percent increase from the 122 reported in 2013-14; 108 students received it once, while 16 received it two or more times. The majority were boys, over 60 percent were in kindergarten through fourth grade and 25 percent in grades 10-12.

Particularly troubling is that more than half were Native American, even though these children make up less than 1 percent of the state’s 1.4 million public school students. All the instances occurred in four counties, with 60 percent taking place in Robeson County, the home of the Lumbee Tribe, and 32 percent in Graham County near the Cherokee Indian reservation; 10 percent of the students were identified as disabled.

Equally concerning are the reasons cited by schools for paddling children. More than 50 percent were for “disruptive behavior,” a catch-all category that can mean almost anything; 10 percent were for leaving school grounds, and nearly 8 percent for cell phone use. Other reasons include “insubordination” and “inappropriate language.”

NC Child reports that there is no evidence that the use of corporal punishment in schools is associated with improved academic outcomes. This is backed up by decades of social science theory and research suggesting that the deliberate infliction of pain upon the body of a student is associated with increased aggressive and delinquent behavior, broken relationships between students and schools, and increased psychological and emotional problems, both in the short- and the long-term.

North Carolina is one of 19 states in which corporal punishment in schools is legal, a list that includes all of the Southern states plus several in the West. According to the U.S. Department of Education, nearly 167,000 students received physical punishment in the 2011-12 academic year, with the majority of paddling occurring in Mississippi, Texas, Alabama, Arkansas and Georgia. The data reflect that a disproportionate number of the students receiving corporal punishment across the U.S. are African-American.

As for reform, 31 states and the District of Columbia have banned corporal punishment in schools, along with many large urban school districts in states where paddling is still condoned, including Atlanta, Houston and Memphis. While Ohio and New Mexico abolished the practice several years ago, legislative attempts in Texas and Louisiana have failed.

A variety of professional groups have advocated against the use of paddling in schools. On the national level, they include the American Academy of Pediatrics, the American Psychological Association and the American Medical Association. In my state of North Carolina, the State Board of Education, the North Carolina Association of Educators, the North Carolina PTA and virtually all other child advocacy groups and professional organizations are formally opposed to the practice.

It is time for North Carolina--and the remaining 18 states where corporal punishment in schools remains legal--to prohibit teachers and administrators from hitting students. It is a degrading practice that violates students’ physical integrity and human dignity.

A version of this essay was originally published by the News & Observer (Raleigh, N.C.)

 

At the UN: A Week for Women

A shout-out today to the on-line news service, Women's ENews, which has been covering the meeting of the UN Commission on the Status of Women in New York this week.  The Women's enews coverage is exactly the sort of news and analysis about women and for women that is often marginalized in the mainstream press, but that more folks should know about.  In an opinion piece published on March 23, contributor Susan Rose explains Here's Why We Need a Comeback in U.S. Women's Commissions.   Among other things, she cites Cities for CEDAW and other examples of women's commissions leading the CEDAW debate as particular examples of why these Commissions are important today.   In other recent coverage, Women's enews reported in-depth on the three women on the short list to take over the helm at the United Nations.   And on March 21, Women's enews ran a book excerpt from Women and Girls Rising: Progress and Resistance Around the World, edited by Ellen Chesler and Terry McGovern, describing the central role of women's issues from the early days of the UN.  With articles by actual journalists (not just us bloggers) and the contributions of high-level opinion leaders, Women's enews performs an important service by ensuring that this information gets developed, probed, synthesized and reported out in a timely way.   You can get the Women's enews updates delivered directly in your inbox by subscribing here.

European Cities View Human Rights as a Means to Combat Radicalization

It is hard not to feel hopeless in the face of the devastating news from Brussels.  All responses seem either too little too late, or too naive.  But some folks around the world are developing ideas to combat the roots of terrorism.   In May 2015, a group of Council of Europe and city representatives came together in Graz, Austria to discuss the role of human rights implementation in the city.  At the end of their session, they approved the Graz Declaration on Human Rights Implementation.   The final two paragraphs of the declaration are pertinent today:

"The representatives of the Congress of the Council of Europe, in the presence of local and regional decision makers from 25 countries, coming together on the occasion of the international implementation forum “Focusing on Human Rights” on 28-29 May 2015 . . .

6.  Further remind national authorities of the repercussions that insufficient policy responses to social exclusion can have on radicalization, which impacts public security and the human rights of citizens and shall thus be a central consideration of any human rights policy;

7. Conclude accordingly that the point of time has come at which it is indispensible to respond to the threats to human rights and fundamental freedoms by means of enforcing the cooperation between authorities at all levels, exchanging best practises and assessing the outcomes of implemented actions in order to pursue a common strategy to enhance inclusion and make human rights a reality in Europe’s cities and regions."

 

Did You Miss World Book Day?

Did you miss World Book Day on March 3?  I'm afraid that we did . . . so here, belatedly, are some recommended reads on human rights.  To this list, we would add Human Rights and Children's Literature, by contributing editor Jonathan Todres and Sarah Higinbotham -- a novel and exciting book that offers new insights into the children's stories that we all know and love! 

 

 

What Advocates Can Do For Youth in Solitary Confinement

by Tamar Birckhead   

Sometimes it takes a tragic and heartrending story of a single human being to move broad public policy. In the instance of the solitary confinement of youth, the catalyst was the case of Kalief Browder. An African-American 16-year-old, Browder was wrongly charged with theft of a backpack in May 2010 and held for three years at Rikers Island after a judge set his bail at $3,000, an amount the teenager’s family could not post.

Browder was then confined with hundreds of other 16- to 18-year-olds in a section of Rikers where brutal attacks by guards and fights among inmates were common. He was targeted by gangs, beaten by officers and told that if he reported the incidents to medical staff he would be sent to solitary confinement.

Meanwhile, Browder’s criminal charges were caught up in the extreme backlog of the Bronx court system. Because he repeatedly refused to plead guilty, his case was set for trial. Yet, delays caused by court congestion kept pushing back the trial date.

Not long after arriving at Rikers, Browder was placed in solitary for two weeks following a scuffle with an inmate. Six months later, another fight led to his second trip to solitary, where he remained for about 10 months. Even in isolation the threat of violence is a reality, however, and a tense exchange of words triggered an attack on Browder by a guard.

As the months turned into years, Browder became depressed and lost weight. After he tried to hang himself with a bed sheet, he was returned to solitary.

Browder’s case was ultimately dismissed in May 2013 after 31 court dates and three years at Rikers, the majority of which he spent in isolation. The alleged victim had left the U.S. and the prosecutor acknowledged that they were “unable to meet our burden of proof at trial.”

Although Browder made some strides after his release, including earning his GED, finding a part-time job and starting classes at Bronx Community College, the damage of incarceration and isolation had already been done. His mental health rapidly deteriorated, and on June 6, 2015, he committed suicide at his parents’ home in the Bronx. He was 22 years old.

In January, President Barack Obama invoked Kalief Browder, his time in isolation and his suicide in an op-ed in the Washington Post announcing a ban on the solitary confinement of juveniles in the federal prison system, among other critical reforms that would affect the 10,000 adult inmates serving time in isolation.

After relating the facts of Browder’s life, the president wrote, “How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.”

Although the Federal Bureau of Prisons is responsible for fewer than 100 juvenile inmates, with only a handful placed in “restrictive housing,” the president’s executive action reflects a broader recognition of the need to treat adolescents and young adults differently than adults based on their cognitive and psychological capacities. It also is likely to trigger reforms on the state level of solitary confinement policies for both youth and adult inmates, including those with mental illnesses. The U.S. Department of Justice has estimated that more than 57,000 juvenile offenders are incarcerated in jails and prisons across the U.S., with many held in solitary confinement.

At the vast majority of juvenile detention centers, often the only hope for young people held in prolonged isolation lies with lawyers or youth workers willing to expose the practice, report it to the appropriate parties and advocate for its ban.

Advocates working with incarcerated young people should regularly ask them about the conditions of confinement and specifically question them about isolation practices: whether solitary confinement is used, under what circumstances, its duration, whether there is any debriefing following its use and whether alternative strategies are ever utilized.

Unfortunately, Kalief Browder, like many low-income youth, did not receive rigorous legal representation. He was appointed a lawyer who never made the trip to Rikers to visit him and rarely, if ever, spoke with him between court dates.

Advocates working with incarcerated youth who suspect the excessive use of isolation should immediately bring the situation to a judge’s attention at a hearing reviewing the conditions of confinement. If these types of hearing are not mandated in the client’s jurisdiction, they should speak to a lawyer about filing a motion for review of the conditions of confinement. They should also speak with the administrator or the licensing or regulatory agency for the facility holding the juvenile.

Unfortunately, prisoners’ legal services have become increasingly limited as legal aid budgets are cut and offices are forced to discontinue these programs. Because of this gap, every correctional facility should have an inmate-grievance system with counselors who address both routine and emergency complaints. Every facility should also have the equivalent of an institutional ombudsperson available for adolescent inmates to raise claims or express concerns related to their conditions of confinement.

Kalief Browder’s short life continues to have meaning. As President Obama wrote in his Washington Post op-ed, “Today, [solitary confinement] is increasingly overused on people such as Kalief, with heartbreaking results — which is why my administration is taking steps to address this problem.”

Editors' Note: This essay was originally published by Youth Today.

New Resource for Thematic Hearings

 JoAnn Kamuf Ward introduces this important resource to the human rights advocacy community:

I am pleased to share a new resource created by the Human Rights Institute, Using Thematic Hearings at the Inter-American Human Rights Commission to Advance U.S. Human Rights Accountability, which builds on the experience and insights gathered from an array of Bringing Human Rights Home Lawyers’ Network members who have utilized thematic hearings in domestic advocacy.

Based on the Institute’s interviews, outreach, and research, this resource provides practical insight into the role of thematic hearings within the Inter-American System, and offers recommendations and reflections on how to request, prepare for, and follow up on thematic hearings to maximize their impact. Focusing on the U.S. context, it also distills a number of considerations to inform lawyers’ use of thematic hearings as a tool to advance human rights accountability. To inform future engagement, this resource further includes sample hearing requests and a list of all the U.S.-focused hearings held at the Inter-American Commission since 1997.

U.S. advocates are increasingly turning to the Commission as a forum to address U.S. human rights concerns, and this resource is intended to support these efforts, and to share some of the key lessons learned to date.

I also want to use this opportunity to inform you that the next period of hearings at the Commission will take place in the beginning of April, and there are three hearings focused on the United States. The full schedule of upcoming hearings is available here.

The Institute would like to extend special thanks to all the BHRH Network members that contributed to this publication.

Please let me know if you have any questions.

(In)justice for Migrant Children

Editors' Note:  Following up on yesterday's post, Risa Kaufman discusses the applicable human rights law as well as the procedural posture of JEFM v. Lynch

Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School

A federal immigration judge may see no problem with requiring a three year old to represent herself against the government's efforts to deport her. But international human rights law and many jurisdictions in Europe and elsewhere in the world recognize the stark injustice in such a scenario. An amicus brief filed this week by Human Rights Watch in JEFM v. Lynch asks the 9^th Circuit to do the same.

The plaintiff children in JEFM, many of whom are fleeing violence and other dangerous situations in their Central American home countries, have brought suit against the United States, claiming that the lack of a right to appointed counsel for indigent children in immigration proceedings violates the Constitution’s due process protections, as well as the federal Immigration and Nationality Act. Last year, ruling on jurisdictional grounds, the federal district court denied the government’s motion to dismiss the constitutional claims, and granted its motion to dismiss the statutory claims.

Both sides have appealed the district court’s order to the 9th Circuit Court of Appeals.
The Human Rights Watch brief draws on international human rights law and foreign law to underscore the importance of preserving the federal district court as a forum for the plaintiff children’s claims. The brief was authored by Columbia Law School’s Human Rights Institute and the law firm of Covington & Burling, LLP, with the assistance of students in the Columbia Law School Human Rights Clinic.

Numerous international human rights treaties recognize the necessity of appointed counsel for ensuring due process and equal justice for migrant children. The Convention on the Rights of the Child, the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Racial Discrimination all provide support for the right to appointed legal representation for indigent children in immigration proceedings. Inter-American Court of Human Rights has likewise made clear that the right to appointed counsel for children in immigration proceedings is a key component of due process under the American Convention and the American Declaration.

Human rights experts have expressed particular concern over the lack of a right to appointed counsel for children in U.S. immigration proceedings. In 2014, during its review of U.S. compliance with the CAT, the Committee Against Torture specifically recommended that the U.S. guarantee access to counsel for minors seeking asylum in the U.S. Likewise, the Committee on the Elimination of All Forms of Racial Discrimination recommended that the U.S. “guarantee access to legal representation in all immigration-related matters.” And last year, after visiting the U.S. southern border to monitor the human rights situation of unaccompanied minors and families, the Inter-American Commission on Human Rights called on the U.S. to provide free legal aid for children in immigration proceedings.

Foreign law also lends support for the right to appointed counsel for indigent children in immigration proceedings. The European Court of Human Rights has increasingly recognized the right to appointed counsel when necessary to prevent the inequality of arms. And the European Parliament recently called on member states to provide free legal representatives to unaccompanied minors in immigration proceedings.

Last year, over 28,000 unaccompanied children from El Salvador, Guatemala, and Honduras crossed into the United States at the southwest boarder. A study by the UN High Commissioner for Refugees found that many children migrating from these Central American countries reported that they were escaping violence and persecution and would face harm if forced to return home.

There is growing recognition of the injustice in forcing these children to fend for themselves in complicated and high-stakes immigration court proceedings. As articulated in the Human Rights Watch amicus brief filed this week, international human rights and foreign law lend strong support to this understanding, and compels a re-evaluation of access to justice in the United States.

Trending Toward SCOTUS: Immigration Courts Encourage Pro Se Toddlers

The Civil Right to Counsel (Civil Gideon) is making inroads in the national discussion.  The case reported below may move this issue to the U.S. Supreme Court. 

 J.E.F.M v Lynch (previously Holder) challenges the government's failure to meet the fundamental right of children to appointed counsel.  The ACLU filed suit in federal court in Seattle.  The complaint can be found here. The government's position seeps from absurdity to cruelty.

 

John Pollock of the National Coalition for the Civil Right to Counsel  reports that a Washington Post story discussing the case has received huge coverage because one of the government’s experts Judge Jack H. Weil, a longtime immigration judge, testified that "3- and 4-year-olds can learn immigration law well enough to represent themselves in court.”  According to the Post, Judge Weil stated at his deposition "I have taught immigration law literally to three year olds and four year olds.  It takes a lot of time.  It takes a lot of patience. They get it. It is not the most efficient but it can be done. You can do a fair hearing. It's going to take you a lot of time." Scarily, toddlers are not the only ones that Judge Weil trains.  In his senior position, Judge Weil is responsible for coordinating training for all immigration judges.

 

Pollock reports that a NY Times editorial entitled “Migrant Children Deserve a Voice” responded to this absurd assertion and supported a right to counsel for all children in these proceedings. And Senator Reid has filed a bill, the Fair Day In Court For Kids Act, that would require counsel for children. 

 

Editors' Note:  Tomorrow's post by Risa Kaufman continues this discussion, addressing the case's procedural process and the impact of international human rights law.

 

 

A Year of Housing as a Human Right: Can Art Change the Conversation?

The New Foundation of Seattle is working with prizewinning artist Martha Rosler to create a year-long series of city-wide events, exhibits, screenings and discussions about the human right to housing, According to the foundation website:

"The project Housing Is a Human Right takes its title from an animation Martha Rosler created in 1989, at the invitation of the Public Art Fund, for the Spectacolor board in New York City’s Times Square as a comment on the steep rise of homelessness in the United States.

As Rosler has noted, this program is presented at a time when Seattle is making national headlines for strong employment growth but also for a homelessness crisis that was recently declared a “civil emergency” by the city’s mayor and the county executive. The tech sector’s hiring booms have brought explosive population increases. Efforts on the part of Seattle City Council to raise the minimum wage seem to be forever outpaced by the surging cost of living here. The city is booming with no bust in sight, but industries rise and fall, and the future is not predictable. 

With Housing Is a Human Right the artist is asking the citizens of Seattle if it’s possible to commit to a more equitable and inclusive expansion. She is also questioning whether advocacy and radical proposals and visions can become the city’s beacons toward that end."

More information about this timely and visionary project is available here.

Hacking for Human Rights

Since 2013, "Diplohacks" have been held once or twice a year in locations around the world to "creatively 'hack' real world problems — to explore innovative ideas that leverage new technologies to solve old challenges."  Diplohackers include diplomats, techies, social entrepreneurs, academics, civil society representatives and human rights activists.  

In February 2016, Diplohackers met in Geneva and took on a list of challenges presented by the Office of the High Commissioner for Human Rights.  Specifically,  the hackers spent 48 hours developing new ways to gather and verify evidence of human rights abuses.  Read the full report and see the video here.  For a description of one team's solution to the problem, check out this link. 

For more information on innovative approaches to human rights methodology in the US, follow the progress of the newly launched Human Rights Methodology Lab, co-sponsored by the NYU Center for Human Rights, Global Justice and Columbia Law School's Human Rights Institute, and Human Rights Watch.

The Permanent People's Tribunal Takes On Fracking

by Lauren Bartlett 

The Permanent Peoples’ Tribunal, based in Rome, has scheduled a Session on the human rights impacts of hydraulic fracking and other unconventional fossil fuel extraction processes. Two hearings will take place in March 2017, one in the U.S. and one in the U.K. A group of U.S. and British environmental and human rights organizations have joined together to organize and plan the session. The organizers have developed quite a bit of evidence and have connections in the U.S. and the U.K. with communities impacted by fracking. At this point the organizers are seeking the following: 1) help building their U.S. legal arguments and developing the legal case regarding human rights violations (maybe from a law clinic or clinics); 2) human rights attorneys to serve as “prosecutors” at the hearings in March 2017; 3) groups interested in organizing mini-tribunals or mini-hearing here in the U.S. leading up to the Session (we are considering organizing one of these in Ohio); and 4) authors for a series of articles related to the human rights impacts of fracking. If you are interested helping with any of the above or have any questions, please contact me and I will put you in touch with one of the organizers.

Human Rights Education: Too Controversial?

In the current issue of the Human Rights Law Review, Alison Struthers of the University of Warwick writes about the practical challenges of human rights education in her article:  Human Rights: A Topic Too Controversial for Mainstream Education?  Here's the abstract:

Abstract:

Human rights education (HRE) is important for empowering people to stand up for their rights and for the rights of others. It is considered to be the most effective means of challenging widespread negative attitudes towards human rights by introducing learners to the relevant values and concepts at an early age. This article argues, however, that even teachers who may be inclined to teach in this area are often not doing so. Drawing upon empirical research, the article considers why teachers are hesitant about HRE by exploring their conceptions of human rights as too (i) controversial; (ii) abstract; or (iii) biased a subject for young learners. It is argued that to overcome these distorted ideas there needs to be (i) a cultural shift in the educational landscape to ensure that HRE is mainstreamed within state educational policy and (ii) improved teacher training on HRE.

US Cities Step Up on CEDAW, as Cities Rise Worldwide

Cities are on the move around the world.  In his 2013 book, Benjamin Barber asked, what would happen if Mayors ruled the world, concluding that mayors were much better positioned than nations to deliver on a range of issues.  In September 2016, the first Global Parliament of Mayors will convene in the Hague, with the mission to "deliver viable cross-border solutions to global challenges."  The US Conference of Mayors has endorsed this new initiative.

In the US, Cities for CEDAW is capitalizing on the ability of mayors to get things done, moving ahead with CEDAW implementation on the local level even while ratification efforts remain stymied in the US Senate.  To keep the momentum going, Cities for CEDAW will be at the NGO Committee on the Status of Women in New York again this year, in conjunction with the annual meeting of the UN Commission on the Status of Women, March 14-25, 2016.

Cities for CEDAW reports that you can catch up with the campaign at the following parallel events:

Monday, March 14, 2:30 PM at Church Center for the United Nations, 10th Fl is "From the Global to the Local: CEDAW Activism in the United States"

Tuesday, March 15, 2:30 PM at Thai Cultural Center, 310 East 44th St, Room 1 is "Women's Human Rights and Sustainable Cities with CEDAW and Habitat III"

Thursday, March 17, 6:15 PM at CCUN 2nd Fl is "Cities for CEDAW Goes International"

For a complete list of the incredible line-up of parallel events during the NGO CSW, click here.

Whole Woman's Health Actually Focused on Women's Health

by Cynthia Soohoo  

Following last week's argument in Whole Woman’s Health v. Hellerstedt, commentators have focused on the impact of the women on the Court. One area where Justices Ginsburg, Sotomayor and Kagan made their presence felt was on the quality of the Court’s discussion of women’s health. Collectively, they (with significant help from Justice Breyer, and even some from Justice Kennedy) probably spent more time considering the health impacts of Texas HB2 than the entire Texas legislature did when it passed the law.

And it was appropriate that they did. Since it would be unconstitutional for Texas to pass a law with the purpose of preventing women from having abortions, the Texas Solicitor General had to argue that HB2 was enacted to protect women’s health. Petitioners have maintained that by delaying or preventing women’s access to abortion, the law actually increases the health risks that women face.

The challenged law imposes two requirements: (1) that doctors who perform abortions have admitting privileges at hospitals within 30 miles and (2) that facilities that provide abortions meet the requirements of an ambulatory surgical center (ASC). Collectively, the requirements will result in closure of three-quarters of Texas’s abortion clinics (About half of Texas’s 40 clinics closed when the admitting privileges requirement went into effect. The ASC requirement has been stayed).

The Texas SG tried to make broad, conclusory statements that the additional requirements would make abortion provision safer, but the Justices pushed back asking the SG why the requirements were necessary given the nature of abortion procedures – medical abortion just requires women to take two pills and early surgical abortion does not even involve general anesthesia - and the procedures’ extremely low complication rates.

Justices Sotomayor questioned the necessity of having a woman “travel 200 miles or pay for a hotel” to take 2 pills for a medical abortion in an ambulatory surgical center. When the Texas SG later tried to argue that the ASC requirement was necessary in case complications arose, Justice Ginsburg shut him down, noting that if complications arose from a medical abortion, they would happen several hours later after the woman returned home.

The Justices also took note that the risks associated with abortion are extremely low, less than 1% (the risks of a colonoscopy are 28 times greater) and did not justify the ASC or admitting privileges requirement. Justice Sotomayor pointed out that surgical abortion is essentially the same medical procedure as the treatment women receive following a miscarriage, but Texas has not imposed additional requirements for treatment of miscarriages. After Justice Ginsburg noted that early stage abortion is “among the most safe” and “least risk procedures” and that child birth is much riskier, the Texas SG made the mistake of trying to disagree with her. Justice Ginsburg shot back, “Is there really any dispute that childbirth is a much riskier procedure than early stage abortion.”

Several Justices also showed real concern about the law’s negative impact on women’s health. Justice Kennedy noted that the law appeared to be increasing surgical abortions as opposed to medical abortions in Texas, which “may not be medically wise.” Justice Sotomayor expressed concern that the lack of access to legal clinical care would bring us back to the time before Roe v. Wade, where women were forced to get abortions from unlicensed providers. And, Justice Breyer questioned Texas’s health purpose given evidence that lack of accessibility will increase self-induced abortions and the risk of “many more women dying.”

The Justices also emphasized the need to consider how the law affects access to care for all Texas women. Justices Kagan and Ginsburg pushed back on the Texas SG’s statement that the law would leave abortion facilities in metropolitan areas.   Justice Kagan pointed out that in 2012 less than 100,000 women lived more than 150 miles from an abortion provider, and as a result of the law 900,000 women would live further than 150 miles from a provider and 750,000 further than 200 miles. Justice Ginsburg emphasized that in determining women’s access to abortion under Planned Parenthood v. Casey, “the focus must be on the ones who are burdened and not the ones who aren’t burdened.” Thus, the Court’s inquiry should not focus on the women who live in Austin or Dallas but “the women who have the problem who don’t live near a clinic.”

Many of the questions posed by Justices Ginsburg, Sotomayor, Kagan and Breyer revealed skepticism about Texas’ asserted health justification for the requirements. In responding to questions about availability of services, the Texas SG stated that women in West Texas could obtain abortions in New Mexico. Justice Ginsburg questioned how Texas could rely on women traveling to facilities in New Mexico, which does not impose admitting privileges or ASC requirements.

The Texas SG was repeatedly questioned about the lack of evidence of a need for the new restrictions and the fact that Texas did not act to impose similar requirements on much riskier procedures. He consistently responded that the Texas legislature can set much higher standards on facilities that provide abortion than facilities providing much riskier procedures. Then, Justice Kagan asked the question that was on everyone’s mind, “I just want to know why Texas would do that?”

Wednesday’s argument is a good indication that at least half of the Justices understand and take the impact of the Texas law on women’s health and access to abortion seriously. Hopefully, that understanding and respect for women’s health will be reflected in the Court’s decision.

 

Coming to Your Town or Campus: Human Rights Film Festivals Bring the Issues Home

Human rights film festivals are an effective way to bring human rights home, particularly in campus communities.  Many festivals are staged around the country each year.   The 14th Annual Human Rights Film Festival will be held at the University of San Francisco from March 31- April 2, 2016.   The Human Rights Watch Film Festival in New York will be June 10-19, 2016.  Another upcoming festival is the United Nations Association Film Festival in Palo Alto, to be held October 20-30, 2016.  The 16th Annual Bellingham Human Rights Film Festival just closed at the end of February -- presumably there will be a 17th annual festival at around the same time in 2017.   Some groups also put on human rights film series spread out over several months or a year.  For example, the Friends of the St. Paul Public Library and Advocates for Human Rights are hosting a series of films on women's human rights.  The final film in the series, "The Path Appears," to be shown on March 11, deals with sex trafficking in the U.S.  Similarly, the Duke University Human Rights Center sponsors an ongoing series called "Rights, Camera, Action."  April 19th's screening will be "From Swastika to Jim Crow: Jewish Refugee Scholars in the American South."  In Fort Worth, Texas, the local Human Relations Commission co-sponsors a quarterly human rights film series. 

 To support these disparate, community-based efforts, the Human Rights Film Network has published a guide to putting together a human rights film festival.  According to the manual authors, "Human rights-themed films aim for maximum impact, and human rights film festivals play a crucial role in ensuring that the films reach their target audiences, which include key influencers, social movements, activists and everyday citizens.  This manual seeks to strengthen the collaboration between these communities by providing existing and emerging film festivals with the tools necessary to create an effective human rights eco-system that can lead to social transformation." 

For more thinking about how to teach from human rights films, see the recent essay by Sarah Hamblin, "The Form and Content of Human Rights Film," appearing in The Radical Teacher.  And for a general resource on human rights films, see Mark Gibney, Watching Human Rights: The 101 Best Films.