Undocumented Immigrant Children: A Cry for Help (Part 2)

Earlier this week, I talked about how almost 1500 undocumented children had been lost by the US Federal Agency while they were separated from their parents at the borders. This week, the numbers are higher. The concern is growing with each passing moment for the inhuman treatment of family units at the border. The post will explain the logic behind the implementation of the immigration policy, its legal validity and its effects on the children

Image showing two undocumented children
[Photo via Newscom]

What is this Immigration Policy?

First things first, what exactly is happening?

There are certain countries in Central American which are still rife places for violence, abuse, corruption and unfulfilled life. People are living in constant fear of domestic abuse, gang violence, and other elements which affect a normal human life. For that reason, many citizens of these countries believe that leaving such horrific conditions behind is better for their life. Most of these countries include El Salvador, Honduras or even Guatemala. Out of the people fleeing these places, some are family units – either a single parent with kids or a couple with kids.

When these people reach American borders, reports show that they are being detained. Since children cannot be detained along with adults, they are separated. This is being carried out as Zero Tolerance Policy.

Initially, this policy was not stringently applied, especially for family units. But this is a strict stance being followed in the Trump Administration. While the administration initially denied having any policy which separates the children from their parents, in April, Attorney General Jeff Sessions finally announced the Zero Tolerance Policy.

Why is this Immigration Policy being adopted now? 

Initially, when Trump came into power, the border crossings reduced drastically. This was celebrated by President Trump as it was one of the main reasons on which he won over his followers. But this number increased again. As such he tried to increase security checks and prosecution at the borders to lessen the numbers. It is explained well by Jonathan Blitzer in The New Yorker:

I asked the person who had attended the D.H.S. meeting with Gene Hamilton what had changed since last year, when the Administration was reluctant to publicly embrace the family-separation policy. The person pointed to the President. In the early days of Trump’s Presidency, migrants were anxious about how harsh his policies might prove to be. For a few months, illegal border crossings declined—a fact that Trump bragged about and took personal pride in. But by the end of the year the numbers had returned to levels roughly consistent with where they’d been just before he took office. Trump has complained that U.S. immigration laws are “pathetic” and riddled with “loopholes,” including, among other things, the “catch and release” of asylum seekers. He’s also held Nielsen personally responsible for the rise in migration from Central America. “What you’re seeing now is the President’s frustration with the fact that the numbers are back up,” the person told me. “The only tools the Administration has now, in the absence of legislation, is to make life miserable for people.”

This means that the adults crossing the border illegally would be criminally prosecuted. And since children aren’t prosecuted because of lack of mens rea, they would be kept separately from their parents.

This is what the Zero Tolerance Policy practically means. The reasoning behind this policy is simple. If parents are separated from their children (with chances of not seeing them again) then it would deter people from entering USA illegally.

The idea for this policy was present for quite a while, but it was not implemented because of its moral nature. But under Jeff Sessions, it finally received the green signal for its execution. It is not a new policy and has been around since late last year. In fact, The New York Times reported in April about 700 children being separated last year.

Does the Immigration Policy deter immigrants?

American Immigration Council writes:

There is little evidence to support the proposition that the border must be further fortified to deter an influx of children and families. Treating the current situation as simply another wave of unauthorized immigration misses the broader policy and humanitarian concerns driving these children and families’ migration. In fact, many women and children are turning themselves over to Border Patrol agents upon arrival and are not seeking to evade apprehension.

The increase in immigration numbers, thus cannot be looked into in vaccuum. Where the undocumented immigrants are coming from plays a great role. Chances of being detained in American prison seems less scarier when compared to the violence in their home countries. As such, there is little to no evidence to show that these policies work effectively.

Is this Policy legal?

To look at the legal validity of this policy, let us split it up into two categories, viz. a. Domestic Law of US; and b. International Law.

1. International Law

The United Nations condemned this act by the US as being violative of several human rights. These strong words come from the fact that separation of children is seen as something that is both morally wrong as well as mentally harsh for the children. Because of the separation, it becomes difficult for children to explain their reason for crossing the border, or even ask for US Protection. More often than not, the children aren’t aware of crossing into the US territory as they are being protected from the harsh realities. Separation also means that sometimes children do not have their necessary documents with them that would help the authorities to help them.

These and many more reasons term it as equivalent t cruelty to separate a child from his/her parents. Ravina Shamdasani, the spokesperson for the United Nations High Commissioner for Human Rights told reporters that the separation amounts to amounts to arbitrary and unlawful interference in family life. She also stated that it is a serious violation of the rights of the child.

“The U.S. should immediately halt this practice of separating families and stop criminalizing what should at most be an administrative offense — that of irregular entry or stay in the U.S.”

Although US is not a signatory to the Child Rights Convention, its actions are still condemn-able under the various other human rights legislations it is a part of.

2. Domestic Law

On 15th June, President Trump tweeted the following tweet:

The Democrats are forcing the breakup of families at the Border with their horrible and cruel legislative agenda. Any Immigration Bill MUST HAVE full funding for the Wall, end Catch & Release, Visa Lottery and Chain, and go to Merit Based Immigration. Go for it! WIN!

President Trump sent out a tweet saying that the children being separated are because of a legislation by the Democrats. But this is not true. In fact there is no legislation which necessitates separation of children from their parents. It is an administrative policy which was implemented under the Trump Administration.

In fact, many of the International Laws are adopted as domestic legislation such as the Refugee Act of 1980. They provide protection for the asylum seekers/refugees. The laws governing the status of refugees in the U.S. are in compliance with the U.N.’s 1951 Convention relating to the Status of Refugees, which the U.S. adopted in 1968.

But the grounds on which asylum can be sought are being narrowed. Recently, Attorney General Jeff Sessions reversed an Obama-Era Policy which effectively states that victims of domestic abuse and gang violence would not get asylum.

Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

3. Legal Suits against the Trump Administration

Slowly, law suits are being filed against this policy:

  • A Guatemalan woman is challenging the separation of her 7 year old son in a Federal Court in Washington DC.
  • New York Governonr Andrew Cuomo intends to file a multi-agency suit against the administration calling its policy unconstitutional.
  • While editing this article, the following news broke out. A US District Judge ordered an end to the family separation policy carried out under the Trump administration. Hon’ble Dana M. Sabraw,  held as under in her order granting Plaintiff’s motion for claswide preliminary injunction:

The unfolding events—the zero tolerance policy, EO and DHS Fact Sheet—serve to corroborate Plaintiffs’ allegations. The facts set forth before the Court portray reactive governance—responses to address a chaotic circumstance of the Government’s own making. They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution. This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children. The extraordinary remedy of classwide preliminary injunction is warranted based on the evidence before the Court. For the reasons set out above, the Court hereby GRANTS Plaintiffs’ motion for classwide preliminary injunction.

What is the Current Scenario?

Trump has signed an executive order which stops the separation of some families at the border. Section 3 of the Executive Order reads as follows:

 Sec3.  Temporary Detention Policy for Families Entering this Country Illegally.  (a)  The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.

(b)  The Secretary shall not, however, detain an alien family together when there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.

(c)  The Secretary of Defense shall take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law.  The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.

(d)  Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes.  The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.

(e)  The Attorney General shall promptly file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.

There are several questions that arise at a bare perusal of this order. Firstly, there is no clear answer about the children that have already been separated. Secondly, the interpretation of the term “risk to child’s welfare” has not been clarified.

Anything else you need to know?

Yes. At the helm of these matters, it was made known that US has officially withdrawn from the UN Human Rights Council. 

  • Statement by US Ambassador to the UN Nikki Haley:

“As we said we would do a year ago if we did not see any progress, the US is officially withdrawing from the UN Human Rights Council” 

  • Statement by Secretary of State Mike Pompeo:

“We have no doubt there was once a noble vision for this council, but we need to be honest, the Human Rights Council is a poor defender of human rights.”

The terms used to describe the working of the UN Human Rights Council were “cesspool of political bias” and “hypocritical and self-serving” among others. While it has been suggested that the UNOHCHR is mostly not needed, it has achieved several victories over the past years. These include recognizing LGBTQ rights as human rights and funds to help victims of trafficking and torture.

To Summarise:

  • Children were being separated at the borders
  • There was a huge cry against its moral and legal implications
  • President Trump signed an executive order giving a temporary fix
  • Cases are being filed against this separation policy
  • Amidst all this, US has quit the UN Human Rights Council

Almost all of this happened in the span of one week in June.

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