The Supreme Court ruling against the Trump administration’s effort to end the Deferred Action for Childhood Arrivals program (DACA) has been well covered in the news. DACA offered protection from removal for “dreamers,” or people who arrived in this country as children but who are unauthorized. The ruling allows DACA to stand as policy, though there may well be further efforts to halt the program. The future of the policy largely lies with the upcoming election.
In addition to this landmark ruling there have been three other recent decisions to note.
In the first case, a federal judge ordered Immigration and Customs Enforcement to release all of the children in its custody due to concerns about exposure to COVID-19. A huge victory, at least on the surface. The judge did not specify that parents must also be released. If ICE insists on holding parents, this could set up another family separation crisis.
Immigrant children are held by the U.S. government through several agencies. Customs and Border Protection may hold unaccompanied children and families with children, usually for 72 hours or less, before making a determination to deport, release or transfer them. Currently, almost everybody picked up by CBP, including unaccompanied minors, are being deported immediately with almost no processing and no opportunity to seek asylum.
Unaccompanied children, at least prior to the border closure in March, were typically transferred to the Office of Refugee Resettlement, where they would be detained until a family member or community sponsor could be located. There are just over 1,000 children in ORR custody right now, a very small number by recent standards – mostly because new arrivals are simply being deported.
Families with children, at least those that are able to remain together, are typically transferred to Immigration and Customs Enforcement, which detains families in one of three facilities (two in Texas, one in Pennsylvania). These children are the focus of the judge’s order: “Citing recently reported coronavirus cases among detained families, as well as allegedly lax masking and social distancing enforcement at two family detention facilities in Texas, U.S. Judge Dolly Gee ordered ICE to release all minors who have been held for more than 20 days.”
The catch is that Gee does not have the authority to mandate the release of parents – her authority is directly tied to oversight of the Flores Settlement agreement that provides guidance for the treatment of children in custody. The choice is that ICE must either release the parents as well, or separate the families by placing children with community sponsors or other family members. Unless pressed to do otherwise, ICE will almost certainly try to continue detaining the parents – which means separating children from parents yet again.
Members of Congress issued a letter to the Department of Homeland Security and ICE leadership asking that families be released together.
“Family separation should never be this country’s policy. Medical organizations have long stated that the practice creates extraordinary harm to children,” the lawmakers wrote in their letter to Acting Homeland Security Secretary Chad Wolf and Acting Immigration and Customs Enforcement (ICE) Director Matthew Albence. “Detention of children for any amount of time, even with their parents, causes physical harm and irreparable trauma.”
ICE has until July 17 to release all of the children in custody. Take a moment to sign our petition demanding that families be released together.Sign the Petition!
The next case involved a direct challenge to the administration’s authority to summarily expel children and asylum seekers under a Center of Disease Control policy that Trump has used to essentially shut the border down to everyone – including refugees and unaccompanied children. The ACLU, Oxfam and the Center for Gender and Refugee Studies sued on behalf of a 16 year-old boy from Honduras and his father. From the ACLU’s release on the judges initial ruling in favor of the child:
A federal court has once again provisionally blocked the deportation of a Honduran boy in the first legal challenge to the Trump administration’s order restricting immigration at the border based on an unprecedented and unlawful invocation of the Public Health Service Act, located in Title 42 of the U.S. Code…
U.S. District Judge Carl Nichols issued a ruling from the bench today prohibiting the removal of the boy under Title 42 protocols as the lawsuit continues. The judge agreed with the plaintiff’s central argument that the CDC had likely exceeded its authority in ordering the expulsion of children and asylum seekers under the public health laws. (emphasis added).
This case may establish the necessary precedent to bring an end to Trump’s border expulsions policy, which has so far led to over 40,000 people removed at the border without any due process. Though the ruling this week does not by itself do that – it is an important first step toward bringing this tragedy to an end.
Finally, a court ruling on Tuesday will end – for the time being – the Trump administration’s efforts to close off asylum to anyone who transits a third country prior to reaching the U.S. border. The so-called “transit ban” had effectively ended asylum for anyone arriving at the U.S./Mexico border who was not a Mexican national. The transit ban was clearly intended to target Central American refugees, but ultimately impacted refugees from all over the world who travel through several countries in Latin America before arriving at the U.S. border.
The case was brought by the Capital Area Immigrant Rights Coalition, and was focused on the administration’s violation of rule-making procedures and public notification requirements related to the transit-ban. The merits of the policy itself are also under judicial review in a separate case. In a communication to coalition partners, CAIR’s litigation director, Claudia Cubas, wrote:
In CAIR Coalition v Trump, Judge Timothy Kelly, a Trump appointee sitting on the federal bench in D.C., just vacated the third-country transit rule (the Administration’s asylum ban II barring asylum seekers who passed through third countries en route to the US without seeking asylum in other countries) in its entirety, based on the government’s failure to follow APA notice-and-comment. The court also declined to stay its decision, so it goes into effect right away.
These rulings are part of larger efforts to restore asylum policies in the United States. Toward that end, we encourage everyone to take part in Virtual Asylum Advocacy Days on July 14-16. The Asylum Working Group and Interfaith Immigration Coalition are organizing virtual legislative visits with your members of Congress. There will be a virtual training session to help prepare in advance. You can sign up here.
Today, June 26, is the International Day in Support of Victims of Torture. This year marks the 34th anniversary of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment coming into effect. 162 countries have ratified the Convention, including the United States. Nevertheless, the United States continues to engage in and justify torture.
The Convention defines torture:
“[T]he term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” — Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984, art. 1, para.1) Emphasis added
Nils Melzer, who is the Special Rapporteur for this Convention, issued a report in 2018 which argued that states’ practices employed to deter migration constituted torture. As we noted then, Melzer’s description of the problem, though not directed at any one state, read like a synopsis of U.S. immigration policy:
In response to increasing numbers of…”irregular” migrants arriving at their borders, many States have initiated an escalating cycle of repression and deterrence designed to discourage new arrivals, and involving measures such as the criminalisation and detention of irregular migrants, the separation of family members, inadequate reception conditions and medical care, and the denial or excessive prolongation of status determination or habeas corpus proceedings, including expedited returns in the absence of such proceedings. Many States have even started to physically prevent irregular migrant arrivals, whether through border closures, fences, walls and other physical obstacles, through the externalisation of their borders and procedures, or through extra-territorial “pushback” and “pullback” operations, often in cooperation with other States or even non-State actors. (Melzer 2018, 4)
At the time we wrote about Melzer’s report, we emphasized detention as a method of torture. Detention is arbitrary in the sense that the vast majority of people are held under mandatory detention statutes that provide little space for individual assessment. Because detention is indefinite, people are under added stress, not knowing when they will get out. Conditions in immigrant detention facilities are horrible. Facilities still rely heavily on solitary confinement to manage behavior or punish non-compliance. They routinely neglect the health concerns of those detained, especially mental health concerns, with one result being that nearly half of the people who die in detention commit suicide. Facilities have been dragged into court for the use of forced labor. Above and beyond these factors, for many there is the added torture of separation from family members, including children.
In October of last year, Freedom for Immigrants issued a much more detailed report on detention:
This report focuses on the difficult-to-quantify qualities of immigration detention itself —the uncertainty, the fear, the isolation—and how they affect not only those detained, but also their families and community networks. We identify how systemic isolation plays out in the lived experiences of people impacted by this system and the ways in which people cope with it. The goal of this report is to strengthen community-based resources for resilience and resistance in the face of a purposefully cruel system.
Detention is a form of torture. As a matter of policy and practice, the U.S. government intentionally makes people suffer while in formal custody in order to serve other objectives. This is torture. The maltreatment of people in detention cannot be dismissed as “incidental to lawful sanctions.” While one might argue that feelings of anxiety and depression are natural side effects of incarceration, one cannot seriously argue that prolonged use of solitary confinement, placing people in freezing rooms, denial of mental health services and other health services, poor food quality, and effective denial of contact with family, friends and even counsel, are incidental to lawful sanctions. Indeed, these practices contravene legal obligations for how people are to be treated.
Inside our borders, we torture every day. At the moment, in the context of a global pandemic, this torture takes on increased severity. People are literally fearing for their lives, as they watch others being held with them get sick. Immigration and Customs Enforcement has changed very little in terms of its practices, continuing to shift people around, deport them, and force them into hearings. In some cases, conditions have reached absurd levels of cruelty. At the Geo Group-managed ICE facility in Adelanto, California, for example, the company has been spraying harsh chemicals intended for outdoor use as the principal means of disinfecting the facility. They have continued this practice even after multiple reports have emerged that the chemical is making people sick – including coughing and sneezing blood. ICE has stood by the company.
All of this has been made worse over the last year and half as the Trump administration has shut down the border to asylum seekers. The administration has forced asylum seekers to wait for their asylum hearings in camps on the Mexico side of the border. The administration has denied people who transit a third country the ability to even seek asylum, unless they are denied in that country first. And, now the administration is sending people who do seek asylum back to Guatemala, El Salvador or Honduras, to first seek asylum in one of the countries – even as the bulk of asylum seekers are fleeing conditions in one of those three countries.
Again, the administration’s response to COVID-19 has only made this situation worse. The United States is now summarily expelling everyone who crosses the border – over 40,000 people since mid-March, including children traveling alone – under an abusive CDC order intended to justify border controls. No one is being allowed a chance to even apply for asylum.
For too long, the United States has sought to legitimate a deterrence strategy that is, let’s be clear, a form of torture. We must call it what it is. As we commemorate the victims of torture, we would do well to consider all those who are incarcerated. We join in the call to #FreeThemAll and to #SaveAsylum.
On Monday, June 15 bulldozers razed the community of Shada II in Cap-Haitien, along Haiti’s northern coast. Close to 1,500 families lost their homes as a result. Apparently none were notified in advance of the destruction, nor were any compensated for the loss. This inexplicable act was officially carried out in retaliation for a gang assault that left a police officer and five other people dead days before – but this is either not at all true, or, at best, a very partial explanation. The largest gang in Shada is assumed to be politically aligned, and thus this may well have been in part retaliation. However, that hardly suffices as an explanation for putting 1,500 families out of their homes in the midst of a pandemic.
The organization SOIL has been working in Shada II since 2004 issued a statement about the demolition (full statement here):
At this critical moment in global history, when the world is grappling with the combined public health emergencies of COVID-19 and systemic racism, we feel it is critical that we call attention to human rights issues that impact the communities we serve. There are many unanswered questions about what happened in Shada II last week, and we urge human rights groups to investigate. At the same time, SOIL stands in solidarity with the thousands of innocent people who lost their homes and belongings, and we recommit our organization to sustained social change. True change demands that all stakeholders come to the table to shine a light on the injustices suffered by vulnerable communities caught in the crosshairs of larger political, economic, and social forces, particularly at a moment when the world is facing an unprecedented crisis that calls for compassionate ingenuity and proactive support to those most at risk.
We will continue to report on this as more details unfold and the community regroups to decide what comes next.
Emmanuel “Toto” Constant was deported from the United States to Haiti on Tuesday, June 23. Constant is the former leader of the FRAPH, a notorious paramilitary organization responsible for the deaths of thousands of people while the country was under military rule following the coup against Aristide in 1991. Constant fled to the United States when Aristide was reinstated in 1995 where he remained until this week. Meanwhile, in Haiti, Constant was convicted in 2000 in absentia for his involvement in the massacre at Raboteau. Despite the conviction, Constant was allowed to remain in the United States. Early efforts to remove him stalled, and most assume he was being protected as a former CIA asset. However, he was later convicted of real estate fraud in New York and imprisoned. For many the hope was he would remain in prison.
After serving 12 years of a 37 year sentence, Constant was released from prison and immediately taken into custody by Immigration and Customs Enforcement. Reports that Constant was to be deported emerged in early May. Over the course of several weeks ICE would put Constant on a flight manifest, to later remove him. Constant was finally deported this Tuesday. What does this mean?
Constant was arrested upon his arrival under the 2000 conviction which still stands. However, Constant is entitled to a new trial. Brian Concannon and Mario Joseph (both of whom were involved in landmark human rights trials in the late 1990s that led to the 2000 conviction of Constant and others) published an op-ed in the Miami Herald that explains what is at stake.
A credible prosecution of Constant must respect both his rights and those of the Raboteau Massacre’s victims, who have official status in the case under Haiti’s “civil party” system. The victims are entitled to a robust prosecution that presents all the available evidence, as well as the right to notice of hearings, to participate in some of them and to appeal rulings that infringe on their rights. The original Raboteau trial is a good benchmark: It included expert testimony from international forensic and military experts, documents from the military archives and extensive victim and witness testimony.
The passage of time since Constant’s crimes in Haiti does not prevent his prosecution. His death squad’s murder and torture of civilians were both widespread and systematic, placing them squarely within the definition of crimes against humanity, so the statute of limitations cannot apply. Constant was convicted under a command responsibility theory, and the evidence was mostly documents, which are as credible as ever.
For now, the hope is that Constant remains in custody. He has many former political allies in positions of power under the current government -and should he be released, could wreak havoc. The U.S. has a role here. In 2000 the Clinton administration stalled releasing documents related to FRAPH activity that had been taken by US forces from FRAPH headquarters in 1995 during the operation to reinstate Aristide. Once documents were released they were heavily redacted. The U.S. must support requests for evidence this time around.
As indicated by Toto Constant’s arrival in Haiti, deportation flights are continuing. We encourage everyone to continue to reach out to members of Congress and press for an end to these flights.
If you have not done so yet, you can send a message to your member of the House and ask them to support legislation to end deportations to Haiti. The Haiti Deportation Relief Act was introduced by Frederica Wilson and has the support of committee and subcommittee chairs on the Foreign Relations committee – which means it could get a hearing, committee vote and make it to the floor of the House if people show enough support. It clearly will have a hard time moving in the Senate – but we must press when and where we can!
In addition, the Quixote Center’s Executive Director, John Marchese, was one of 360+ human rights activists and other notables to sign a letter that was sent to the Department of Homeland Security and State Department, including the U.S. Ambassador to Haiti, last week. The letter was organized by the Haitian Bridge Alliance. You can read that here. You can also then print this letter, and send it with a message to your members of Congress to end deportation flights! Find their address here.