Human Rights at Home Blog

New Article: Professional Indifference?: How One Case Improves Protection for Immigrant Children in United States Detention Centers

Caitlin Fernandez Zamora, Professional Indifference?: How One Case Improves Protection for Immigrant Children in United States Detention Centers, 20 Nw. J. Hum. Rts. 239 (2022). Abstract below.

This Article discusses the case Doe 4 ex rel. Lopez v. Shenandoah Valley Juvenile Center Commission. This case was a class action brought by unaccompanied immigrant children against the Shenandoah Valley Juvenile Center Commission under § 1983 protection for adequate medical care. The plaintiff class alleged that, among other things, the Commission failed to (i) provide adequate mental health care due to punitive practices; and (ii) implement trauma-informed care. The plaintiffs were immigrant children who fled their native countries due to harrowing circumstances, many of whom struggled with severe mental illness. The district court granted the defendant’s motion for summary judgment regarding the mental health care claim, which the plaintiffs appealed. On appeal, the Fourth Circuit considered which standard should be applied to analyzing a claim regarding the detention center’s level of mental health care. This Article explores the approach and impact of Doe 4, as a case of first impression for the Fourth Circuit and effectively for all circuits with regard to this class of immigrant children. Specifically, this Article discusses whether the majority opinion followed precedent or broke away from it in a way that properly embodies federal law and Constitutional guarantees. This Article also discusses the role of international law in United States courts, particularly related to protections for migrants and children. The Article ultimately concludes that the Fourth Circuit’s decision in Doe 4 was correct and explains why and how it should be further adopted and adapted by other federal courts, to promote an end to the professional indifference that the United States judicial system has normalized with regard to care for juveniles in detention centers.

New Article: Group Rights and Individual Minority Rights in Immigrant Societies, Then and Now

David Abraham, Group Rights and Individual Minority Rights in Immigrant Societies, Then and Now (2021). Abstract below.

The history of the past century or more suggests that “peoples,” however defined, may have their present and future collective needs realized in one of three ways. They may aspire to their own titular state, self-determination, where they predominate and act collectively; they may rely on the recognition and provision of reliable collective minority rights (with greater or lesser autonomy in a more or less territorially-defined multi-peopled space); or they may advocate for a regime of strong “liberal,” non-discriminatory individual rights for all in which (significantly weakened) collective identities are lodged in the private sphere. Not every option is equally available to all peoples; they face different hurdles as they themselves inevitably evolve over time from disparate starting points and with different strengths and weaknesses. Indigenous minorities, religious minorities, racial minorities, immigrant minorities, etc. will inevitably approach their situations differently from each other and in different concrete situations. Nonetheless, these three patterns –self-determination, guaranteed minority rights, and universalist individual rights—define the terrain on which struggles take place.

New Article: Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border

Jeffrey R. Baker and Allyson McKinney Timm, Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border, 13 Drexel Law Review 581 (2021). Abstract below.

In 2017, the Trump Administration imposed its policy of zero-tolerance immigration enforcement on the southern border. This policy resulted in the forcible separation of families and the prolonged detention of children in harsh conditions, without due process or adequate resources. The Trump Administration unleashed these policies to deter people from immigrating and seeking asylum, consistent with President Trump’s racist rhetoric and campaign promises. This article analyzes and critiques these policies based on international human rights law, noting the resonance human rights norms find among diverse religious traditions.

The article begins with detailed analysis of the Trump Administration’s policies that divided families and detained children in wretched conditions, in violation of U.S. law. It proceeds to evaluate and criticize these policies under treaties ratified by the U.S., conventions it has signed but not ratified, and established customary international law. In the name of border enforcement and immigration deterrence, the Trump Administration’s policies violated the fundamental human rights of migrants and people seeking asylum in the United States, including the right to family life, rights of the child, and rights to be free from ill-treatment and arbitrary detention. The abrupt and often permanent separation of families, the indefinite detention of children without proper care, and the failure of process in these policies are all stark violations of binding international human rights laws. These policies affront the moral conscience of multitudes, eliciting sustained protest from civil society and faith leaders.

The article concludes with a recognition that international institutions and legal mechanisms may not be adequate to compel the Trump Administration to respect international law, so political and electoral responses are vital to ensure that human rights remain at the heart of the American enterprise. It suggests the accord between religious, ethical perspectives and human rights principles is valuable to reinforcing popular support for these norms. As the world bears witness to these cruel abuses of human rights, Americans must decide whether and how to hold the government accountable for the inherent dignity of all people within the rule of law.

Forced sterilizations and other non-consensual gynecological procedures performed on migrant women detained at Georgia’s Irwin County Detention Center

By Hugh Fitzgibbon, Som-Mai Nguyen, and Catalina Ramirez Palau, Law Student Representatives, Transnational Legal Clinic, University of Pennsylvania Carey Law School

On May 20, 2021, Secretary of Homeland Security Alejandro Mayorkas directed ICE to sever its contract with the Irwin County Detention Center (ICDC). This announcement followed a public whistleblower complaint filed September 14, 2020 against U.S. immigration authorities and ICDC detailing human rights violations committed against immigrant women held at ICDC, including nonconsensual hysterectomies performed by a government-contracted doctor. The complaint sent shockwaves through the media. 42 U.S. senators immediately called on the DHS Inspector General to investigate, and in January 2021, the UN Special Rapporteur on Migrants, together with 8 other human rights bodies, responded with a communication to the U.S. outlining their grave concerns. As of May 2021, all women at ICDC had been deported, released, or transferred, However, the government’s systemic failure to prevent abuse in its detention centers does not end with the closing of ICDC. While a hard-won victory resulting from years of organizing and advocacy, the post hoc termination of individual facilities cannot undo the harms inflicted upon these women — nor, as we know from history, will it stop the same from happening again. Nothing short of ending immigration detention will.

Based on the detailed account of a nurse employed at the center and the testimonies of several victims, the September 2020 complaint included credible and substantiated allegations of nonconsensual sterilizations and other invasive unnecessary gynecological procedures performed on women detained at ICDC, as well as general abuse and medical neglect.. At least 57 women treated by the same doctor between 2018 and 2020 underwent or were pressured to undergo unnecessary treatments without  informed consent. The nurses allegedly communicated with non-English speaking patients by Googling translations, flagrantly undermining the women’s ability to give informed consent.  “Everybody he sees has a hysterectomy – just about everybody,” the whistleblower claimed. A 29-year-old victim reported that she agreed to a dilation and curettage procedure to remove an ovarian cyst, but when she woke up from surgery, she discovered that one of her fallopian tubes had been removed — a procedure for which she never gave consent. Another woman reported undergoing a hysterectomy without being given the opportunity to decline or to consult with her family beforehand. One woman reported hearing from other detainees: “He just empties you all out.” These accounts are only several of many harrowing allegations from women held at ICDC.

These forced hysterectomies are not an aberration in the United States’ cruel history of sterilization abuse, both in detention settings and otherwise, and particularly as a means of racist, ableist, and socioeconomic oppression. In Buck v. Bell (1927), the Supreme Court upheld a Virginia law allowing the compulsory, eugenic sterilization of institutionalized people if the state determined it would benefit the “health of the patient and the welfare of society.” Infamy notwithstanding, Buck has not been overturned. Roe v. Wade (1973) cites it as an example of how the Court has not recognized an “unlimited right to do with one's body as one pleases.” In 2001, the Eighth Circuit cited Buck to argue that “involuntary sterilization is not always unconstitutional.” Legitimized, sterilization without consent continued and continues to be used to regulate reproductive freedom. Throughout the 1960s and 1970s, federally funded programs were used to coercively sterilize thousands of Black women by threatening termination of welfare benefits or denial of medical care; Indian Health Services sterilized at least 25% of Indigenous women between the ages of 15 and 44 without consent; and Los Angeles County U.S.C. Medical Center systematically performed tubal ligations on Spanish-speaking women without consent. The trial judge in Madrigal v. Qulligan (1978) wrote: “One can sympathize with [the women] for their inability to communicate clearly, but one can hardly blame the doctors for relying on these indicia of consent which appeared to be unequivocal on their face.”

Reproductive justice concerns not only barriers to abortion, but all aspects of economic, social, and political power relating to decisions about conceiving, delivering, and rearing children. Such justice is fundamentally incompatible with carcerality. As another example, many prison officials have used restraints on pregnant people. In Villegas v. Metropolitan Govt of Nashville (2013), Juana Villegas was arrested during a traffic stop when she was 9 months pregnant and held in custody for ICE after she was determined to be undocumented. When her water broke, she was taken in handcuffs and leg restraints to a hospital, where she delivered her baby while shackled to the birthing bed. The Sixth Circuit found “the right to be free from shackling during labor . . . not unqualified” because a woman in labor could nevertheless be a flight risk. Despite attempted changes in federal policy, as well as Georgia’s 2019 Dignity Act, which prohibits the shackling of pregnant people for six weeks after giving birth, the Southern Center for Human Rights reported in April 2021 that women at Lee Arrendale State Prison were shackled and/or placed in solitary confinement during their immediate postpartum period.

The reproductive injustice of non-consensual sterilizations and other unnecessary gynecological procedures performed on migrant women in ICE custody at ICDC is part of a much broader and deeper story of migrant dehumanization in the U.S. In immigration detention, people face medical mistreatment, poor sanitation, overcrowding, physical and psychological abuse, poor nutrition, and sexual violence – all laid bare by the COVID-19 pandemic. The system is designed to be punitive and to deter immigration, which is fundamentally antithetical to the protection of migrants’ health. Detention is part of the overly securitized response to immigration which facilitates the erosion of human rights, as are ICE’s co-optively named “Alternatives to Detention,” which expand surveillance but have not decreased the number of people in detention (unlike true, community-based alternatives to detention). This violative environment is compounded by the increased privatization of migrant detention in recent years: 81 percent of people detained in ICE custody are in private facilities. Privatization invariably compromises care due to profit-making motives, and the necessary desecuritization and deprivatization of the immigration system should be our takeaway from this case. The experiences of migrant women in ICDC further demonstrate why immigration detention must end. As a first step, the Biden administration’s plan to phase out the use of private prisons must extend to the immigration detention system.

Editors' Note:  This post is cross-posted on the Reproductive Rights Prof Blog

Event: One Year On: Human Mobility and Human Rights in the COVID-19 Pandemic

Please Join the Zolberg Institute on Migration and Mobility at The New School, the Migration and Human Rights Program at Cornell Law School, and the Program on Forced Migration and Health at Columbia University's Mailman School of Public Health, for a symposium on May 18-20^th, 2021, revisiting the 14 Principles of Protection for Migrants, Refugees and Other Displaced Persons.

This symposium marks the one year anniversary of the publication of the 14 Principles and will consist of a series of 45-minute sessions will explore how migrants, including refugees, have been particularly impacted by the pandemic and the new and emerging ways in which the human rights of these populations are likely to be challenged going forward. 

Register Here.

The Widening Empathy Gap

For decades those who consider the health of the nation have warned about the consequences of the widening gap between the rich and others.  Along with the disappearance of the middle class has come the disappearance of empathy.  Sense of community and willingness to help others has been replaced in many instances with an odd combination of beliefs.  Contemporaneously, many believe that each individual is responsible for his or her own situation, as if the resources of the universe are available to all equally and somehow looming poverty is the result of individual failure to grasp the brass ring.  Thrown into the mix is a smattering of distorted Christian biblical references used to justify whatever harsh policy or attitude promoted. Most recently, Attorney General Sessions quoted St. Paul in an effort to justify separating children from their parents at the border.  Many pastors denounced Sessions' use of scripture and pointed out that the passage was taken out of context.  It doesn't help that the cited passage was similarly used to support slavery which for generations entitled slave "owners" to practice family separation as a matter of right. 

Then I saw Won't You Be My Neighbor?  Fred Rogers foresaw the dangers of exposing children to violence and hatred.  He spoke of consequences of exposure to violent television.  Not only do our youth deal with violence on television and in movies, violence against students is a national fear with hyper-awareness of school shootings.  How we extend the message of love to children today is our challenge.  There is no Mr. Rogers to tell children that they are perfect just as they are. 

Perhaps we are asking the wrong questions when we consider policy, religion and resistance.  The right question is "What would Mr. Rogers Do?"

 

 

 

Separating Children and Parents at the Border: The Human Impacts of American Exceptionalism

On June 5, the Office of the UN High Commissioner for Human  Rights released a statement condemning the U.S. policy of separating children from their families at the U.S. border.   According to the UN spokesperson,  "The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles. The child’s best interest should always come first, including over migration management objectives or other administrative concerns.  It is therefore of great concern that in the US migration control appears to have been prioritised over the effective care and protection of migrant children."  The UN statement also noted that the U.S. is the only country "in the world" that is not a party to the UN Children's Rights Convention, and urged the U.S. to ratify the Convention.

Nikki Haley, the U.S. Ambassador to the UN, quickly responded to the statement, arguing (1) that it was hypocritical for the UN to criticize the US when other members also engage in human rights abuses, and (2) that the US, as a sovereign nation, can act with impunity when it is protecting its borders.  Both of these arguments are flawed, failing to take into account the totality of actions of the UN and ignoring the ways in which international law has been incorporated domestically.  In short, the administration's position, articulated by Haley, takes exceptionalism to new heights and, in the process, sends the message that no one's human rights are safe here.

First, the idea that the UN has hypocritically singled out the US for human rights criticism is absurd.  In the same press statement that critiqued the US child separation policy, the High Commissioner addressed human rights violations in Egypt and Ethiopia.  The day before, the High Commissioner examined human rights abuses in China.  A day later, Bangladesh was the topic.  The many mechanisms of the UN ensure that all countries are exposed to constructive criticism (as well as, when warranted, praise) through the Universal Periodic Review process, and by review of treaty monitoring bodies or Special Procedures.  The assertion that the U.S. can never be criticized on human rights grounds because of the amount of foreign aid and financial support that it provides sounds a bit like some other positions taken by this Administration, i.e., if you're rich enough, you don't have to play by the rules.

Second, Haley's assertion that U.S. sovereignty excuses human rights violations is also misplaced.  The human rights at issue here are so basic and fundamental that they transcend particular documents -- and in fact, have even been accepted by several U.S. courts as customary international law.  The Universal Declaration of Human Rights, a product of Eleanor Roosevelt's leadership, states clearly that the "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State."  Further under Article 14 of the UDHR, "Everyone has the right to seek and to enjoy in other countries asylum from persecution."  Certainly, an assertion of sovereignty doesn't excuse human rights abuses against children without some showing of absolute necessity and imminent harm.  There is nothing like that here.  Instead, the Administration has approached the impacts on children almost casually, as John Kelly noted that the separated children might eventually be placed in foster care "or whatever."  In fact, the impacts on vulnerable children separated from their parents are long-lasting and profoundly negative.  How far would the Administration go to protect U.S. sovereignty under the circumstances we have here?  Would the Administration assert that it's acceptable to shoot the "trespassing" children of immigrants and asylees seeking entry at the border, in order to deter the migrating adults and to protect U.S. sovereignty?

Given Haley's defense of the Administration's policy of separating children from their families, we must all ask, has human rights lost all meaning to the U.S. government?   

Vermont Dairy Workers Demand Justice and Human Rights – Will Ben & Jerry’s Respond?

By JoAnn Kamuf Ward, Columbia Law School Human Rights Institute

 In February 2016, this blog highlighted an exciting development for Vermont dairy workers: Ben & Jerry’s made a formal agreement to cooperate with dairy workers, led by Migrant Justice, to join a worker driven social responsibility (WSR) program, known as Milk with Dignity.  That commitment was made in 2015 – over two years ago.  Yet, Milk in Dignity is not yet in place.  Migrant Justice and Ben & Jerry’s continue to negotiate the terms, but the process has been slow, and progress is lacking. 

The stakes continue to be high for farmworkers in Vermont.  Farm hours are long, and sometimes workers get no days off.  Many workers are not even afforded eight consecutive hours off at a time.  Pay is abysmal.  Housing is substandard and injuries are common.  Indeed, Migrant Justice was founded in response to the death of dairy worker, José Obeth Santiz Cruz.  In 2009, Cruz died in a workplace accident when his clothes got stuck in a machine and strangled him.  In response, dairy workers decided to take collective action to prevent similar travesties from occurring in the future, and improve overall farm conditions.  One Migrant Justice member recently offered a compelling and personal snapshot of what dairy work can be like, and his motivation to advocate for change:

“My dad taught me how to milk cows. My first time in the barn, I thought I would pass out from the stench. It was scary working among the cows, getting knocked around by huge animals. Because there were no jobs available at the farm where my dad worked, I had to find work at a farm an hour away. At just 17, I was living and working by myself in a small farm on a back road in an unknown country, facing my first Vermont winter. Waking up at 3 a.m. to start my first shift, I’ve never felt so isolated.  The farmer had me working 12 to 15 hours a day, with no day off. At the end of my first week, my body aching from over 80 hours of hard labor, I received my first paycheck and couldn’t believe what I saw: $350, or just over $4 per hour. At that time, I had no idea what the minimum wage was, but I knew that it wasn’t fair pay for the work I had done.” 

Migrant Justice sees the Milk with Dignity Program as the key means to improve conditions so that dairy workers can live and work with dignity.  Key components of the Program, which are calibrated to foster transformative change, are spelled out in a legally binding agreement, and include:

• workers’ central role in designing the program to best protects workers’ human rights, including through a detailed code of conduct for farms;
• continuous and independent monitoring to encourage compliance and ensure that breaches of the code are effectively investigated and addressed, coupled with farmworker education about their rights;
• accountability mechanisms to remedy violations of the code of conduct, with concrete market consequences where farms fail to make improvements;
• economic incentives for farmer participation:  Ben & Jerry’s pays a premium to farms in good standing with the Code of Conduct, and this benefits the farm owners and farmworkers.

Over a dozen human rights organizations, including the ACLU, the Center for Constitutional Rights, the Coalition for Immokalee Workers, the, FIDH, and Human Rights Watch, Robert F. Kennedy Human Rights have endorsed the key elements of the Milk With Dignity Program, in a recent letter calling on Ben & Jerry’s to join the Milk with Dignity Program and describing how the Milk with Dignity Program implements human rights principles.

Last weekend, on the two year anniversary of Ben & Jerry’s initial agreement to cooperate, Migrant Justice and allies from across the country held a day of action to demand that Ben & Jerry’s make good on its commitment and put the Milk with Dignity Program into practice.  More than 100 supporters made a 13 mile trek through Vermont, ending at Ben & Jerry’s Factory, where they delivered the human rights letter. 

The March was a success.  It drew broad support, received some excellent media coverage, and may be an important catalyst for progress implementing the Milk with Dignity Program.  Unfortunately, celebration was cut short by the news that two of the marchers were arrested by Immigration and Customs Enforcement (ICE) on their way back to the farm where they work.  Sadly, this scenario is becoming somewhat routine for Migrant Justice. Just last month two other prominent Migrant Justice members were arrested by ICE and served 10 days in jail before being released. 

Routine border patrol stops, and the arrests of Vermont dairy workers put in sharp relief the precarious position of many farmworkers, and the challenges to worker advocacy.  Farmworkers lack basic legal protections, and were intentionally excluded from the rights to organize and collectively bargain at the federal and state levels, meaning they have few avenues to vindicate their rights.  This has always impeded efforts to improve conditions on farms.  In recent months, the obstacles that farmworkers face have increased, with a sharp rise in federal targeting of communities perceived to be immigrant, Latino, and non-English speaking, of which ICE arrests are just one example.   

 As a colleague and I described in an op-ed : in the current political climate, it is even more important that corporations leverage their power and resources to fulfill their human rights responsibilities.  I hope that Ben & Jerry’s is ready to step up - it would create a great model and an incentive for further positive corporate action.  

Honoring Elie Wiesel: On the Opposite of Love

Elie Wiesel was our conscience and our memory of the Holocaust.  He was voice for millions of the murdered because of the hatred and madness of one leader and his supporters.  But also the Jewish citizens died due to the overwhelming silence of others.  It is both easy and difficult to understand the fear of speaking out when neighbors are disappearing.  Consequences of disagreeing with Hitler, as with other dictators, were and are severe and usually fatal. But that begs the question on how dictators ascend to national control in the first instance.

Anyone who read Night was no doubt haunted by the inhumanity.   But one of the lessons Mr. Wiesel taught us was not to wait in confronting hateful conditions as they are developing. Politics rooted in hate can be powerful and, if not curbed,  lead to the sort of unimaginable suffering that Mr. Wiesel endured.   Not confronting hatred when it first appears permits inhumanity to grow.  Failure to confront hatred opens the door for demagogues.

As we celebrate July 4th, we might ponder how easily we could lose our independence through our silence.  As Mr. Wiesel taught: "The opposite of love is indifference."