Friday, October 23, 2015

The United States is Failing its Own Responsibilities Toward Refugees

As Europe deals with its massive refugee challenge and the United States agrees to assist by accepting up to 10,000 Syrian refugees among the migrants, the United States continues to shirk its responsibility to refugee children fleeing El Salvador, Honduras, Guatemala, and Mexico. They too are caught in the middle of extreme violence, but in our own hemisphere. This is not simply a matter of denying asylum to the children who have arrived. This is a matter of the United States deporting them back to armed violence.

During the summer of 2014, media headlines highlighted the surge of unaccompanied children (UACs) who reached our southern border. Eventually, almost 70,000 unaccompanied children and more than 68,000 “family units” (mainly women with their children or “AWCs”) were apprehended by the border patrol in 2014. The migrants and immigrant rights advocates suspected trouble ahead when a Ku Klux Klan “knight” called for shooting UACs arriving at the border. As the North Carolina Klan leader said: “If we pop a couple of ‘em off and leave the corpses laying on the border, maybe they’ll see we’re serious about stopping immigrants.” Worse still, although the White House initially labeled the influx of UACs an “urgent humanitarian situation,” the Department of Homeland Security (DHS) and Department of Justice responded by sending a “surge” of immigration judges and government attorneys to the border to start deportation hearings immediately, while simultaneously sending the message to immigration courts around the country that UAC and AWC deportation cases should be prioritized.

The Women’s Refugee Commission has concluded that the migrants are fleeing their homelands largely because of the growing influence of youth gangs and drug cartels, targeting of youth by gangs and police, and gender based violence. Honduras, where the largest numbers of unaccompanied minors are coming from, has the world’s highest murder rate. El Salvador is not far behind, and its gangs have increasingly targeted children at their schools, resulting in El Salvador having one of the lowest school attendance rates in Latin America. The United Nations High Commissioner for Refugees reported that organized criminal gangs coerce children into prostitution and to work as hit men, lookouts, and drug mules. Girls are recruited to smuggle and sell drugs in their home countries, and gang rape is used as a means of forcing them into compliance.

The women and children have been detained and subjected to expedited removal proceedings. Those fortunate enough to be released to relatives of family friends also are subjected to “rocket dockets” that have been rolled out in immigration courts across the country. In those proceedings, children and families have been given as little as three days’ notice of their court hearing dates, severely limiting their ability to find counsel.

In a change of policy, Immigration and Customs Enforcement (ICE) began detaining families apprehended at the border in 2014, rather than releasing them from custody to appear for removal proceedings at a later date. The two biggest family detention facilities are located in Texas, and both are run by private prison companies. Perhaps not surprisingly, the conditions at the detention camps have come under heavy criticism by pro bono attorneys and most recently by a federal judge. The conditions are unsanitary and do not provide adequate health care services. Children are often sick, lethargic, and are not provided with any meaningful educational opportunities as mandated by federal regulations. Although individuals facing deportation have a right to counsel, the government is not mandated to provide counsel. The Texas facilities are located in remote parts of the state making access to free legal services or pro bono attorneys very difficult. Representation is clearly necessary for the migrants to establish the grounds to satisfy complex asylum requirements or other potential remedies. Without representation, the migrants face deportation back to the violence, where reports of deportees being killed have been verified.

The Obama administration’s prioritization of deporting women and children fleeing violence particularly is disturbing when juxtaposed with its commitment to Syrian refugees and much of Europe’s reception of refugees. Administration officials should reconsider its response in humanistic terms. Incorporate a “best interest of the child” standard into its decisions on how to handle this true humanitarian challenge. Precedent exists for granting temporary protected status to these individuals until the dust has settled. Most importantly, approach the challenge by understanding why the migrants have arrived, and we will all understand that allowing them safe refuge and respect for the time being is the right response.

Professor Bill Ong Hing
University of San Francisco School of Law

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