Thursday, October 29, 2015

Inter-American Commission on Human Rights report on family detention and treatment of unaccompanied minors

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Last week, the Inter-American Commission on Human Rights released a report on family detention and treatment of unaccompanied minors.  The report found numerous human rights violations in current U.S. practice.  The report also offers specific recommendations for change. 

The Executive Summary outlines the focus of the report:

"This report addresses the situation of migrant and refugee families and unaccompanied children arriving to the southern border of the United States of America. It analyzes the context of humanitarian crises that have been taking place over the past several years in the countries of the Northern Triangle in Central America - El Salvador, Guatemala, and Honduras – as well as in Mexico. These crises have been generating increased migration northward, principally to the United States, and to a lesser extent Mexico and Canada. This report offers recommendations geared towards assisting the United States in strengthening its efforts to protect and guarantee the rights of the diverse group of persons in these mixed migratory movements – among them, migrants, asylum-seekers and refugees, women, children, families, and other vulnerable persons and groups in the context of human mobility."

As Denise Gilman summarized on the Immprof listserve: 

 

Some key conclusions and recommendations are identified here –

 

1.       The “drastic uptick in the number of arrivals [from Central America and Mexico in the summer of 2014] signals a worsening human rights situation in the principal countries of origin.”

2.       “[F]amilies for whom there is capacity at an immigration detention center are automatically and arbitrarily being detained.”

3.       “No substantive criteria are used, nor is an individualized assessment conducted…to determine which families will be detained.”

4.       “[T]he Commission highlights its observation that immigration detention served as an obstacle to detainees’ access to mechanisms of international protection as well as to obtaining legal representation.”

5.       The Commission “highlights the importance of the State desisting from placing families into expedited removal proceedings.”

6.       At the family detention centers, specifically at Karnes, the “Commission observed inadequate and disproportionately restrictive conditions, akin to a penal incarceration center.”

7.       The Commission highlights that the Inter-American Court of Human Rights has established in the migration context that “when the child’s best interest requires keeping the family together, the imperative requirement not to deprive the child of liberty extends to her or his parents and obliges the authorities to choose alternative measures to detention for the family, which are appropriate to the needs of the children.”

8.       “The Commission reiterates that deprivation of liberty should not be the presumption – rather the presumption should be of liberty.  The Commission maintains that detention is a disproportionate measure in the majority of these cases.”

9.       The Commission urges the government “to desist from creating any new family immigration detention facilities” and “to desist from detaining families at all, unless it is an exceptional case – following an individualized analysis with a corresponding written decision.”

10.   “The Commission considers that the conditions of detention at the [border] holding facilities are inappropriate and unacceptable for detention beyond a few hours.”

11.   The Commission recommends that the government “invest more in immigration courts – hiring more judges and court administrative support, to start – so that judges can have manageable dockets and provide the necessary time and focus on the cases before them.”

12.   The Commission urges the government

a.       “to end its practice of automatic and arbitrary immigration detention of families;”

b.      “to treat Mexican unaccompanied children with the same safeguards and procedures applicable to unaccompanied children from non-contiguous countries;”

c.       “to investigate claims of abuses and mistreatment committed by U.S. border agents and to prosecute and punish, where necessary, the agents responsible;”

d.      “to ensure that the best interests of the child principle is the guiding principle in all decisions taken with respect to children, including in immigration proceedings;” and

e.      “to ensure migrant and refugee children and families enjoy due process guarantees and are provided with a lawyer, if needed, at no cost to them if they cannot cover the costs on their own.”

 

KJ

https://lawprofessors.typepad.com/immigration/2015/10/nter-american-commission-on-human-rights-report-on-family-detention-and-treatment-of-unaccompanied-m.html

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