Comment on an issue or question you found especially thought provoking from the assigned course material, and explain why.
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GHRMay28class.pptxSpring 2020
May 28
Counting down to the last week…..
GLOBAL HUMAN RIGHTS
IS 16
Specific Human Rights Topics: Children’s Human Rights
Main Sources:
Jacqueline Bhabha (2006). “Not a sack of potatoes: Moving and removing children across borders,” Boston University Public Interest Law Journal, 15(2), 197-218.
Updates: Bhabha on current situation
Discussion of child separation at the U.S.-Mexico border.
Today’s Topic:
Child Migration and Child Separation across borders
Recap: Convention on the Rights of the Child (CRC) Preamble
In the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance.
The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.
Why has the U.S. not ratified the CRC?
Objections from conservative “parental rights” groups within the U.S.:
Abortion: CRC does not take a position on it or decide when life begins, though it does recognize “right to life” (Article 6). U.S. preference to leave this as a state-adjudicated issue rather than federal see p. 633-634
Main conservative concern is a fear that the CRC is “anti-family.” Concerns around education, corporal punishment, state preventing parents from educating their children in accordance with their religious beliefs.
However, the CRC tries to balance parents’ rights and children’s rights. See, for e.g., Article 5.
One view was that the United States already has sufficient legislation in place to guarantee child welfare, so signing the CRC was unnecessary.
U.S. proclivity to reject economic rights also contributes to the treaty's lack of appeal.
Main Author for today: Assigned article + op-eds on child separation issue
Jacqueline Bhabha, Professor at Harvard University and Human Rights expert
Bhabha’s parents were Jewish refugees who moved to India to flee Nazi Germany. She grew up in India and later Italy, due to her own family’s refugee status.
Child Separation at the U.S. Border
Followed by a discussion of the issue of unaccompanied minors crossing the border.
Trigger Warning
The image and audio on the next slide are disturbing. Please feel free to skip it.
You have probably seen this image/ heard this recording already, from a couple of years ago.
8 minute video
7
Social Construction of the Issue was primarily through his image and the audio of crying children in a detention facility.
Click the link below to listen to the audio clip with subtitles:
A 2-year-old Honduran asylum seeker cries as her mother is searched and detained near the U.S.-Mexico border on June 12, 2018 in McAllen, Texas. Story of the photograph (optional): https://www.washingtonpost.com/news/post-nation/wp/2018/06/18/i-wanted-to-stop-her-crying-the-image-of-a-migrant-child-that-broke-a-photographers-heart/
Child Separation as a Human Rights violation
An American Civil Liberties Union report (May 2018) documented claims of verbal, physical, and sexual abuse of unaccompanied children by Border Patrol (both before and during the child separation policy). L ink for those interested.
The American Academy of Pediatrics has urged an end to parent-child separation, which researchers have said can cause lifelong trauma in children.
Procedures for child sponsorship and reunification after detention are unclear.
Though the border separation was meant to be temporary and has since been revoked, there is no system in place to bring families back together.
After the policy change, the administration can still detain children in a confined space with their parents.
Child Separation as a violation of the Convention on the Rights of the Child (which the U.S. has not ratified and is not bound by).
The need for children to be with and be raised by their families (see CRC articles 7 and 18).
Jacqueline Bhabha Harvard interview: “For a migrant child, especially, the only real anchor of security is the parents. If they’re living an itinerant life, these children lack the other anchors of school and community.”
CRC, Article 9: States Parties shall ensure that a child shall not be separated from his or her parents against their will, except……when such separation is necessary for the best interests of the child.
These children are not being separated because their parents are abusive or exploitative; they are being separated to deter other migrants from arriving.
Why are families who were separated from their children at the border entering the U.S. illegally?
Though portrayed as illegal migrant “caravan,” ISIS, gangs, traffickers, etc. by Trump administration, many are refugees and asylum seekers, escaping persecution from Central American countries e.g. Honduras, El Salvador, Guatemala.
It is because of gang violence, extortion and recruitment of children to gangs that these parents are making the arduous journey with their children to the United States.
Parents and children crossing the U.S.-Mexico border as part of the so-called “migrant caravan”
Justifications provided by the U.S. government for separating children from their families at the U.S.-Mexico border
A zero-tolerance immigration policy that would deter illegal migration.
Undocumented immigrant families seeking asylum previously were released and went into the civil court system (didn’t require separations), but now the parents are being detained and sent to criminal courts and children are separated and sent to ORR (Office of Refugee Resettlement).
Detention of every adult migrant seeking asylum and charging them with a criminal offense.
As children can’t be charged with such crimes, minor children, even babies, were separated from their parents.
For Trump, the family-separation policy is leverage as he seeks congressional funding for his promised border wall and other xenophobic immigration control priorities.
Should the parents have been placed in detention in the first place?
Trump administration’s claim that criminal defendants don’t have a right to have their children with them in jail.
Does the Trump administration have the legal authority to put asylum-seeking parents in jail awaiting trial to begin with, knowing they’re splitting them from their children?
Human rights organizations, including the United Nations, have argued that it violates international law to prosecute asylum seekers criminally.
Federal courts have also ruled that it’s illegal to keep an immigrant in detention in the hopes of deterring others, instead of making an individual assessment about whether that immigrant needs to be detained.
From Washington Post article “This is what’s really happening to children at the border”:
Homeland Security Secretary Kirstjen Nielsen insisted that separating children when parents are prosecuted for crossing the border is no different than separating children from parents who have been criminally convicted and sent to prison.
This badly distorts the facts.
The parents haven’t been convicted — they have just been charged — and most have the valid defense that they are legitimately fleeing persecution. Seeking asylum at U.S. borders is a legal right protected under U.S. law.
Jacqueline Bhabha assigned op-ed on U.S. government’s child separation policy: https://www.theglobeandmail.com/amp/opinion/article-americas-treatment-of-migrants-is-sending-the-country-back-to-the/
Criminalization is an illegitimate deterrent policy, bartering acute human suffering for pragmatic political gain.
Borders and national security are well protected by long-standing immigration controls, by strict and onerous procedures which place the bar for obtaining asylum very high; those ineligible to remain can be promptly removed or deported.
Does U.S. law actually support such a policy?
Short Answer: No.
Trump administration: U.S. laws or court rulings are forcing them to separate families that are caught trying to cross the southern border. To what extent is this true, if at all?
There is no U.S. law or court ruling that requires immigrant families to be separated.
Trump admn blames a “Democrat” law but that is inaccurate.
When the Obama administration attempted to respond to the “crisis” of families and unaccompanied children crossing the border in 2014, it put hundreds of families in immigration detention (together, not separated).
But federal courts stopped the Obama administration from holding families for months without justifying the decision to keep them in detention.
FLORES SETTLEMENT: A 1997 federal consent decree during Clinton admn. that requires the government to release children apprehended crossing the border.
Trump Administration’s claims
Cites the Flores settlement as the reason it is “forced” to separate children from parents in order to prosecute the parents.
Claims that because it cannot keep parents and children in immigration detention together, it has no choice but to detain parents in immigration detention (after prosecuting them for illegal entry) and send the children to the Department of Health and Human Services Or Office of Refugee Resettlement.
Flores Settlement
Requires the federal government to release rather than detain all undocumented immigrant children, whether they crossed with parents or alone.
Requires the government to keep immigrant families together for only 20 days.
It doesn’t mandate that parents be prosecuted or that families be separated after the 20 days.
Requires that children be placed with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep those who are in custody in the “least restrictive conditions” possible.
“Trafficking” as flawed justification for child separation
From “Vox” article, Melissa Gira Grant and Debbie Nathan : “Trump Has Turned the War on Trafficking Into a War on Immigrants:”
“By characterizing the act of border crossing with children as “trafficking,” a political idiom almost immune to challenge, Trump continues his war on immigrants.”
Trump claimed without basis that asylum seekers are actually coached by “professional” smugglers and traffickers.
Smugglers/Coyotes are different from traffickers. Those facilitating the border crossings are smugglers, not traffickers. Smugglers do also exploit migrants, but the migrants (of whom many are asylum seekers) willingly cross the border.
Trump has linked the fight against trafficking with the claim that immigrants typically are criminals, and the proposition that they endanger women and children.
It is also claimed without evidence that parents are trafficking the children into the U.S. and that the children have been “rescued” by U.S. law enforcement from their own parents.
It is also claimed that some adults who are bringing children are not their parents.
Even if this is the case, it is not true of all children crossing the border and therefore cannot be used as a justification for a Zero Tolerance policy.
In Sum
This is a situation when border control and immigration policy ignore or override human rights including the rights of the child.
What does the border separation issue illustrate about which children are considered worthy of remaining with their families (in order to be raised according to “family values”), and which are not?
Remember: U.S. conservatives didn’t want to sign CRC, citing that it’s not friendly to “family values.”
If the U.S. indeed wants to uphold family values, the child separation policy illustrates that the only family values conservative sections of U.S. political leadership care about are those of U.S. citizens.
Family values seem to end at the borders. “Those” families are not seen as entitled to be together in order to impart their values, education, affection, etc. to their children.
Why did the U.S. government later revoke this policy?
The policy was in force for over two months until it was reversed following bipartisan outcry.
Pressure from First Ladies, Democrats and public – which demonstrates that even though the U.S. hasn’t ratified CRC, there is ample support for migrant children’s rights among many in the public and sections of the political leadership.
Media coverage of distraught immigrant toddlers and their weeping mothers and fathers – especially the photograph of a crying toddler and an audio recording of children crying and detention staff making fun of them – caused outrage.
Courts: ACLU began bringing these cases to courts, and many judges ruled that violating family integrity is unconstitutional.
Social construction of the child migration/child separation issue: focus on the very youngest children.
“Thanks to the efforts of reporters and legal representatives, the American public at large has received documentation of babies wailing, toddlers huddled, visibly traumatized, young children bottle feeding unrelated infants, adolescents crammed into holding cages. The images have shocked the country’s conscience.”
Source: Jacqueline Bhabha’s op-ed, “America’s treatment of migrants is sending the country back to the dark ages.”
Unaccompanied Minors
Shifting focus to minors who cross the border unaccompanied.
Assigned article Jacqueline Bhabha (2006). “Not a sack of potatoes: Moving and removing children across borders,” Boston University Public Interest Law Journal, 15(2), 197-218.
Opening Example, 14-year old Edgar Chocoy – two journeys: crossing into the U.S. and being deported. Details on p. 2-3 and 10 of pdf.
“Edgar's first journey was prompted by considerations of his own best interest," chosen for himself and by himself without adult intervention or oversight.
His second journey was decided on by U.S. immigration officials and an immigration court judge with no regard for his "best interest.”
Edgar exercised his agency to secure protection and the possibility of a viable life; the "responsible" adults intervened to send him to his death.”
“For many unaccompanied children seeking asylum, the outcome of international migration is not the panacea for which they hoped. Rather, as with Edgar, the process compounds the deprivation, anxiety and vulnerability that prompted migration in the first place.
14-year-old Edgar Chocoy
Sought asylum to escape gang members, ultimately deported back to Guatemala and murdered by gang members.
Unaccompanied Minors
Defined under U.S. law as:
“Children who lack lawful immigration status, are under age 18, and are either without a parent or legal guardian in the United States or without a parent or legal guardian in the United States who is available to provide care and physical custody.”
Children seek refuge in the United States for many reasons: to escape war, gangs, or violence; to flee abuse; or to reunite with family. Others enter involuntarily as labor or sex trafficking victims.
The decision to cross the border could be their own (e.g. Edgar Chocoy’s case).
More often, unaccompanied minors are not the sole decision-makers in the migration journey. Parents or guardians involved – usually sending the child to seek better opportunities, or accompanying the child but getting separated along the way.
Usually older children who can make the journey unaccompanied and fend for themselves along the way.
“Best interest of the child” or unaccompanied minor can mean different things
In cases where the child has been trafficked/ abducted, "best interest" can mean removal and deportation resulting in family reunification.
In cases where the child has chosen to leave a difficult situation, or to reunify with their parents from whom they were already separated – the “best interest” of the child is more likely to be remaining in the destination country. Deportation will send them back to the circumstances they were fleeing in the first place.
Absence of a "best interest" standard as a primary consideration governing unaccompanied or separated children's immigration proceedings
E.g. under the Homeland Security Act of 2002, it is unclear whether judges have complete discretion in whether or not to consider the child’s best interests.
This contradicts the provisions of the CRC and recognized international standards for child asylum seekers.
Bhabha: This uncertainty in U.S. immigration law contrasts starkly with U.S. domestic criminal law or family law where special protective treatment for minors is mandated.
Exceptional case: Elian Gonzales
Six year old Cuban boy who had set off on a boat with his mother from Cuba to get to the U.S. His mother and others drowned. He was the sole survivor who was found floating on an inner tube near a Florida coast.
Custody battle between his father in Cuba and his relatives in Miami
Ultimately he was deemed ineligible to apply for asylum as his “best interest” was determined as returning to his father, rather than living with his extended family in Miami.
Problematic responses to unaccompanied minors crossing into the U.S.
From Bhabha’s assigned article
1. Punishment and deportation
Punishment is an inappropriate response where international law (e.g the CRC) has established that the need for protection, not the motive for migration, should guide the state's decision making.
Yet, when assessing migration motives and deciding on a response, states often choose to impute agency for the migration choice to the unaccompanied or separated child-a form of guilt by deduction or guilt by association with the parent or guardian's decision.
2. Victimized by indecision
There are no statutory limits on the length of time unaccompanied and separated children can be deprived of their liberty pending adjudication of their asylum claim, despite the known traumatic and long-term effects of detention on children.
Cases drag on: end up in inconclusive or impermanent status.
Bhabha, “Children's cases are normally mired in a Kafkaesque labyrinth of administrative complexity, bureaucratic delay and official indecision.”
Four major government departments and sixteen different agencies share responsibility for unaccompanied or separated child migrants without any interagency consistency in child-specific training, policy or overall practice. Details: p.6, 7 of pdf.
Connection to sex trafficking: shelter detention.
3. Inadequate Representation or no representation from competent legal professionals
Legal representation increases the likelihood that an applicant of any age will receive asylum. See p. 11-12 of pdf for details.
Without proper legal representation and the appointment of a guardian, child migrant’s own wishes are not considered in determining “best interest,” and the case is not carefully explored and presented.
Edgar’s case: Decision makers were unwilling or unable to address the specificities of the situation (e.g. determining whether fleeing from gang violence may amount to persecution under the Refugee Convention).
4. Failure to recognize that child persecution can be different from adult persecution
Merely witnessing violence, for example, may amount to a form of persecution for a child where it might not for an adult.
A migrating child exposed to gross violations of social or economic rights may require protection in circumstances where an adult who endured the same experience might not.
Immigration courts interpret the law as subjecting children to the same proceedings and evidentiary standards as adults.
In immigration court, a child's responses to questions, interviews and cross examinations may require different interpretative strategies than the same responses from adults.
See examples. on p. 15-17 of pdf.
5. Expedited removal and “reasonable fear” procedures to children who have been previously deported.
“Reasonable fear:” places high burden of proof on the asylum applicant who has previously been deported.
Presumably to discourage repeat entrants, though heightened protection rather than suspicion should be the appropriate response.
“If the domestic child welfare system were to adopt this punitive approach to children seeking refuge from home on multiple occasions, they would be taken to task as derelict.”
6. Failure to distinguish among children of different ages
Bhabha, “Although common sense dictates that the needs and rights of a child at the age of two must be conceived of differently from those of a child of eight or seventeen, in practice immigration policy fails to enable decision makers to distinguish appropriately between children of different ages.
The process denies mature adolescents a real opportunity to express their views and to retain agency in decision-making about their futures.
Connection to child labor topic!
“Protection deficit” in the handling of children’s immigration cases.
The failure of U.S. authorities to counterbalance their immigration enforcement mandate with a system for attending to the child’s human rights and needs for protection.
Bhabha concludes. “A generous and inclusive policy that prioritizes protection over penalty and inclusion over exclusion is a small price to pay for avoiding the fatal errors that led to Edgar Chocoy's tragic end.”
Coronavirus: Impact on Asylum-seekers (Optional reading)
https://theintercept.com/2020/04/16/coronavirus-mexico-border-children-asylum/
Immigrant rights advocates say the Trump administration is now using the pandemic as a pretext to block all asylum-seekers, including children.
https://time.com/5830807/asylum-seekers-coronavirus-mpp/
Many of those waiting along Mexico’s northern border with the U.S. not only face delays, but also live in cramped and unsanitary conditions, potentially exposing them to a greater danger of COVID-19.
https://www.sapiens.org/column/borders/pandemic-refugees/
Not just in the U.S.: As countries around the world grapple with an ongoing pandemic and dwindling resources, borders have been locked, search and rescue missions have largely been abandoned, and ports have been closed for the foreseeable future. The result is an already vulnerable population with nowhere to turn.
Child adoption: Revisiting Key Questions and Concepts from previous weeks
Critical Perspectives on Human Rights: S-V-S
Social Construction of Human Rights Issues and Campaigns
Rescue as a proposed solution to protecting children’s human rights.
Kris Cheney (assigned article for Week 10)
“The cognitive dissonance between child rescue and child protection”
Cheney: Assigned article
There is a “cognitive dissonance between the protection of children at home and abroad.”
Young man on a flight from Europe to Kenya is excited about ”visiting an orphanage as part of our safari.”
He w
