The U.S. is not a safe place for refugees. I see it every day I go to work
We are witnessing a stunning subversion of asylum claims and asylum law
The United States is not presently a safe country to seek refugee protection. I see the evidence of this in the legal work I have undertaken to represent asylum-seekers from Central America.
I am an American immigration lawyer and a former law professor in Canada. Over the course of the last year, I have lead an initiative in my firm to assist asylum-seekers held in detention centres throughout Texas, providing pro bono representation to Central Americans seeking refuge in the United States. Our principal objective has been to ensure adherence to process requirements and secure the release and reunification of families. However, over the past several months, I have come to see my role as a bulwark against my government's systematic assault on asylum seekers.
The United States is a party to the UN Refugee Convention, and our 1980 refugee statute aligns domestic law with America's international obligations. In 2002, the United entered into the Canada-U.S. Safe Third Country Agreement. Among the requirements for the U.S.'s on-going designation as a safe third country is that its "refugee status determination system offers a high degree of protection to refugee claimants" and that it "meets a high standard with respect to the protection of human rights."
To be clear: the satisfaction of minimum standards is insufficient. The language of the agreement demands fulfilment of high humanitarian and institutional standards.
Conditions in detention
The public recently learned of the appalling conditions at a detention centre in Clint, Texas, where children — many of whom are infants — went without regular baths, appropriate food, proper bedding, hygienic conditions and necessary medical attention.
Sadly, Clint is not an aberration and neither is Tornillo, another desert facility, equally remote and surrounded by razor wire. I spent several days there interviewing children who had languished in detention for many months. These were desperate kids awaiting release to family sponsors in the United States. Consistently, they asked the same questions: "Why is it taking so long? When will I see my mother? My Uncle? My sister?"
Despite the availability of sponsors willing cooperate, there seemed to be little effort to release these kids in a timely, efficient manner. Indeed, some of the older children stated that sponsorship paperwork and biometric requirements had long before been completed.
At the Port Isabel Center, also in Texas, adult clients described having been earlier held in overcrowded perreras, the Spanish word for dog cage, and hieleras, which means ice box. They also explained how their children were taken from them: returning from a hearing in which they were prosecuted for irregular entry, their children would simply be gone, with no advanced warning of the move and with little subsequent explanation.
These parents recounted that they were offered reunification with their children, on the condition that they would waive their legal right to hearings, effectively ending any chance of making an asylum claim. Guards coerced one client to accede to such a waiver on a form — in English – a language she does not read or understand. Once we brought the matter into federal court, the government was forced to acknowledge the egregious unfairness and ultimately granted the hearing to which she was entitled.
Another client was separated from his young children upon arrival at the Texas border. He told officers of death threats by MS-13 gang members in El Salvador. But rather than offer the protections of our asylum laws, officers accused him of being a gang member, took his children, and incarcerated him at a facility in Laredo.
The government offered no evidence, much less a process, to sustain the accusation. It refused to recognize the absence of any tattoos on his body (a hallmark of gang membership). Nor would it consider a Salvadoran government record stating that he had no criminal history. Again, only the filing of a federal lawsuit compelled the government to recede from its position and allow for release and reunification after a six-month separation.
In the United States, we are witnessing a stunning subversion of asylum claims and asylum law — a deliberate governmental effort to deter others who may want to avail themselves of the refugee protection that our law is supposed to provide. Attorney General William Barr effectively ordered the indefinite detention of asylum-seekers who enter between ports of entry, but passed their initial threshold asylum screening interviews. Matter of M-S- is a legal case currently being handled by a team of which I am a part.
Through a separate class action in a federal district court, parts of Barr's order have been challenged and temporarily enjoined. However, the case remains active and subject to government appeal.
Barr's order is not only punitive and contrary to our legal obligations under the refugee treaty, but also highly impractical. Where and how will asylum-seekers be housed for extended periods of time? The backlog of cases numbers in the hundreds of thousands, and it will be years before hearings happen.
To top it off, the administration just promulgated rule that effectively precludes asylum for persons passing through third countries before reaching the U.S. southern border. The rule requires refugees to seek asylum in transit countries like Guatemala and Mexico, both of which have few resources and offer little protection to asylum-seekers.
Indeed, Mexico has reported its highest ever murder rate in 2018 and is on pace to surpass last year's record. Notably, neither Mexico nor Guatemala, unlike Canada, has a Safe Third Country Agreement with the United States.
The United States is failing to honour its commitments to human rights and the integrity of a system that is supposed to protect refugees from persecution, not subject asylum seekers to psychological and physical cruelty, and frequently child abuse.
Based on my direct experience, I believe the United States is not presently a safe country to seek refugee protection. However, I maintain hope that the continued attention of the press; the pressure supplied by our neighbours and friends in the international community; and the work of advocates and lawyers will catalyze a change in political thinking to reclaim our belief and investment in the rule of law and humanitarian ideals.
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