USA: "You don't have any rights here"
In 2017 and 2018, President Trump’s administration has implemented immigration policies that have caused catastrophic irreparable harm to thousands of people, have spurned and manifestly violated both US and international law, and appeared to be aimed at the full dismantling of the US asylum system.
Those policies and practices have included, among others: (1) mass illegal pushbacks of asylum-seekers at the US–Mexico border; (2) thousands of illegal family separations, through which the Trump administration has deliberately and purposefully inflicted extreme suffering on families, ill-treatment which rose to the level of torture in some cases; and (3) increasingly arbitrary and indefinite detention of asylum-seekers, without parole, constituting cruel, inhuman or degrading treatment or punishment (ill-treatment) which is absolutely prohibited in international law.
Based on public statements by US government officials, those policies and practices were indisputably intended to deter asylum-seekers from requesting protection in the United States, as well as to punish and compel those who did seek protection to give up their asylum claims.
They told me, ‘you don’t have any rights here, and you don’t have any rights to stay with your son.’ …For me I died at that moment. They ripped my heart out of me. …For me, it would have been better if I had dropped dead. For me, the world ended at that point. …How can a mother not have the right to be with her son?”
These are not isolated aberrations. The US Department of Homeland Security (DHS) has implemented these interrelated policies in unison: closing the borders to asylum-seekers, and pushing them back into harm’s way; and making life so intolerable in immigration detention facilities, that asylum-seekers would think twice before requesting protection in the United States.
Fuelling these policies of cruelty with discriminatory and demonizing rhetoric, President Trump and his cabinet members have routinely called asylum-seekers “criminals,” and denounced international standards on refugee protection as legal “loopholes” and “magic words” that the administration has professed its intention to abolish.
The Trump administration is waging a deliberate campaign of human rights violations against asylum seekers, in order to broadcast globally that the United States no longer welcomes refugees. Simultaneously, the Trump administration is seeking to dismantle the US asylum system, including by narrowing definitions of who qualifies for protection – in violation of international law. Setting a dangerous precedent, the US government’s abrogation of its obligations under human rights and refugee law is undermining the international framework for refugee protection, grossly violating the right to seek asylum, and is inviting a race to the bottom by other countries.
In 2017 and 2018, despite historic lows in the number of people seeking to enter the US without legal status, including asylum-seekers, the DHS border agency Customs and Border Protection (CBP) hasimplemented an illegal de facto policy of pushbacks of asylum-seekers along the entire US–Mexico border at official US border crossings (called “ports-of-entry”). Pushbacks of asylum-seekers are both illegal under US law and violate US obligations under international refugee law.
By turning away asylum-seekers at US ports-of-entry, the United States has grossly violated their right to seek asylum from persecution, and manufactured an emergency along the US–Mexico border. US authorities have forced thousands of asylum-seekers to queue on the Mexican side of the border – exposing them to risks of detention and deportation by Mexican immigration officials, and exploitation by criminal gangs. CBP personnel have also regularly turned away Mexican nationals seeking asylum in the United States, including unaccompanied minors.
Those mass pushbacks of asylum-seekers by CBP are plainly unlawful, and violate one of the most fundamental principles of international refugee law: the prohibition on refoulement (forcing people to a place where they might be at risk of serious human rights violations). This principle is incorporated into US law, which requires border and immigration authorities to receive and refer asylum-seekers for an interview with an asylum officer, in order to conduct individual assessments of any risks of persecution or torture that they may face upon return.
Two senior Mexican immigration officials independently informed Amnesty International that US authorities encouraged Mexico to detain and check the legal status of asylum-seekers whom CBP was forcing to wait in Mexico, with a potential view to deporting them to their countries-of-origin. Any such deportations would constitute indirect refoulement in violation of both US and Mexican authorities’ legal obligations. Amnesty International documented in two 2017 reports that the asylum-seekers arriving at the US–Mexico border are often in need of protection from persecution including targeted violence in their home countries, after perilous journeys to the southern US border. Many have fled from the Northern Triangle region of Central America (El Salvador, Guatemala and Honduras), where Amnesty International has documented human rights violations often waged against civilians by or with the acquiescence of their own governments.
The Trump administration has leveraged vague claims of “capacity” constraints, as an escape hatch to violate its legal obligations to receive and process asylum-seekers’ requests for protection. There appears to be no official written or other record of interactions between CBP officers and asylum-seekers when CBP denies them the opportunity to claim asylum at US ports-of-entry. Yet CBP’s actions have been public, consistent and synchronized at widely dispersed ports-of-entry, despite variations in the numbers of asylum-seekers requesting protection at each crossing.
In parallel to its systematic campaign of illegal pushbacks along the US–Mexico border, the US government has sought to negotiate a “safe third country agreement” with Mexico. Under such an agreement, the United States would recognize Mexico as a safe destination country for all asylum seekers, and stop accepting asylum claims at the US–Mexico border, except from those fearing persecution in Mexico itself.
Under both US and international law, however, the United States cannot legally adopt a “safe third country agreement” with Mexico, since it is not a uniformly safe country for all asylum-seekers. Amnesty International has documented Mexican immigration officials routinely deporting asylum-seekers to potential persecution in their countries-of-origin, in violation of Mexican and international law. Under US law, DHS authorities therefore must continue to receive and provide individualized and fair assessments of all requests for protection by asylum-seekers at US borders and on US territory.
In November 2017 in California, DHS officials tore apart four Central American families at once in the same room: “You don’t have any rights here,” a DHS officer told an asylum-seeking father from El Salvador, when he protested the handcuffing of his 12-year-old son. In March 2018 in Texas, a DHS officer said the same phrase to an asylum-seeking mother from Brazil, while separating her from her son: “You don’t have any rights here. And you don’t have any rights to stay with your son.” Both of those families had documents proving their family relationships, and presented themselves at official US ports of entry when requesting asylum from persecution in their countries-of-origin.
At first tested discretely in 2017, and then launched publicly in 2018, President Trump’s administration implemented a policy of forcibly separating thousands of asylum-seeking families, in order to deter and punish those crossing irregularly into the United States. Under its so-called “zero-tolerance” policy, the US government claimed that family separations were a necessary result of criminally prosecuting all asylum-seekers and others who crossed the US–Mexico border irregularly (i.e. between official ports-ofentry). In reality, US authorities also separated many asylum-seekers who were not referred for criminal prosecution – including those who sought protection at official border crossings – yet has continued to deny and conceal the practice.
The US government has still not publicly disclosed the total number of families it forcibly separated in 2017 and 2018. In September 2018, however, CBP provided statistics to Amnesty International suggesting that the Trump administration separated approximately 8,000 “family units” – more than US authorities had previously admitted to separating. Those statistics still seemed to omit hundreds – if not thousands – of families separated at official ports-of-entry, or with non-parental relationships (including grandparents, among others).
In 2018, Amnesty International interviewed 15 asylum-seekers whom DHS agencies separated from their children, both prior to and following the introduction of the so-called “zero-tolerance” policy. Most of these families were separated without being informed of why, and despite having documentary evidence of their family relationships. In 13 of the 15 cases, DHS separated the families after they requested protection at official US ports-of-entry. When they spoke with Amnesty International, some of the separated parents and guardians were suffering from such extreme mental anguish that they wept uncontrollably as they recounted their experiences, sometimes only seconds or minutes into interviews. Amnesty International researchers witnessed the extreme mental anguish those family separations caused, as well as instances of family separation being leveraged to compel a family to abandon theirasylum claim. In some of the cases documented by Amnesty International, the harmful practice of family separations satisfied the definitions of torture under US and international law.
“I believe that because of all of this I’m going through – the fear of going back to Brazil, the fear of being separated from my grandchild, all of this together, I can’t stop thinking about it – that it’s making me really sick,” said Maria (55), who was separated from her grandson with disabilities, Matheus (17), after they requested asylum in New Mexico in August 2017. “I might need to go look for a psychologist. I don’t remember things, and can’t sleep …I start to talk about something and forget what I was saying. I am crying a lot also because I am still separated from Matheus.” Family separations violate multiple fundamental human rights at once, including the right to family unity, the right to liberty, and the right to freedom from torture and other ill-treatment. Both the prosecution of asylum-seekers for irregular entry, and the forcible separation of their families, also violated US obligations under international refugee law. Children’s rights are also violated in multiple ways through family separations, including by exposing them to extreme and unnecessary trauma after being separated. In the cases documented by Amnesty International, it was clear that authorities did not consider children’s best interests when separating them from their families.
ARBITRARY AND INDEFINITE DETENTION
In 2017 and 2018, the US government has implemented an official policy of mandatory and indefinite detention of asylum-seekers, without parole, for the duration of their asylum claims.
The policy and practice of indefinitely detaining asylum-seekers, based solely on their migration status, constitute arbitrary detention in violation of US and international law. Indefinite detention without criminal charge is in violation of the UN Convention Against Torture, which the United States ratified and integrated into US law.
I applied for parole, with all the documentation requested, but the request was denied. …I was not told the reason they denied my parole, just that it was denied. None of us have been given parole.
Intended to deter and punish those who seek protection at the US–Mexico border, the US government expanded the use of indefinite detention of asylum-seekers both through blanket denials of parole requests by asylum-seekers in some regions, which a US federal court in July 2018 found likely to be arbitrary and illegal; and through its family separations policy, by which it detained parents individually without their children.
The US government has also sought legal authority to indefinitely detain unaccompanied children and families with children, despite it being unlawful in the United States and contrary to international standards.
US authorities have leveraged the agony of prolonged detention in order to compel asylum-seekers to “voluntarily” give up their asylum claims, and accept deportation back to their countries-of-origin where they had fled persecution. That anguish of indefinite detention has often been amplified by family separations and inadequate conditions of detention, including routinely substandard health care that has contributed in some cases to asylum-seekers’ deaths in immigration detention facilities.
In three of the four US states bordering Mexico, Amnesty International interviewed asylum-seekers being detained indefinitely after requesting protection, including separated family members, older people, and persons with acute health conditions and medical needs. Amnesty International also documented the impact of arbitrary immigration detention on 15 transgender and gay asylum-seekers, who were detained for periods ranging from several months to over 2.5 years without parole. In some cases those individuals were denied parole despite acute health conditions and needs for specialized care, or following sexual assaults while in detention. Compounded by past trauma, substandard health care, and reportedly inadequate physical conditions, food and water, as well as discrimination based on sexual orientation, gender identity and/or ethnicity, Amnesty International found some of those asylum-seekers’ experiences of indefinite detention had constituted ill-treatment.
In 2017 and 2018, Amnesty International conducted extensive baseline research on the situation of asylum-seekers in the United States and on the US–Mexico border, including through the review of legal files, review of national and international legal standards, and consultations with relevant civil society groups.
In January, April and May 2018, Amnesty International researchers conducted research missions along the entire US–Mexico border, from the Pacific Ocean to the Gulf of Mexico. The research teams documented not only the situations of asylum-seekers who sought to request protection at US ports-of-entry, but also the conduct of US border and immigration authorities in facilitating and processing their asylum claims under US law and international law and standards.
Amnesty International researchers interviewed a total of 52 asylum-seekers along the US–Mexico border, including in all four US border states (California, Arizona, New Mexico, and Texas) and three Mexican border states (Baja California, Sonora, and Chihuahua). Among those 52 asylum-seekers were 27 men and 25 women, including 15 transgender women. Amnesty International interviewed 28 asylum-seekers inside ICE immigration detention facilities (in California, New Mexico, and Texas); 14 asylum-seekers in Mexico, including 12 who were turned away and two who were removed by the United States to Mexico; three asylum-seekers who were on parole at the time of the interview; and seven refugees who had been granted asylum.
Amnesty International also interviewed 51 immigration lawyers, activists and other representatives of nongovernmental organizations (NGOs); as well as 23 government and other officials. Among those officials were 12 representatives of CBP or ICE, three US subcontractors at private detention facilities; six Mexican immigration officials; and two Mexican municipal government officials. Throughout 2018, Amnesty International conducted extensive follow-up research to corroborate first-hand accounts of asylum-seekers, through review of court documentation, legal filings and other official records, wherever possible, as well as follow-up correspondence and interviews with government officials, lawyers, and NGOs.
TO THE US CONGRESS:
- Exercise greater oversight of DHS agencies to: halt the illegal pushbacks of asylum-seekers at US ports-of-entry; curtail any executive overreach, especially this administration’s attempts to separate and/or indefinitely detain asylum-seeking families and children; and end the arbitrary and indefinite detention of asylum-seekers, in violation of international law.
- Increase funding for immigration judges, and USCIS asylum and refugee officers.
- Pass legislation banning the separation and/or detention of families with children.
- Support and fund community-based alternatives to detention, such as the previous Family Case Management Program.
- Decriminalize irregular entry into the United States, in line with international standards, and ensure that administrative sanctions applied to irregular entry are proportionate and reasonable.
- Ratify the UN Convention on the Rights of the Child, which the United States signed in 1995 and is the only country in the world not to adopt.
TO THE US DEPARTMENT OF HOMELAND SECURITY:
- Immediately stop turning away asylum-seekers at the US–Mexico border, both at and between official ports-of-entry.
- Discontinue all plans and actions that would require asylum-seekers at the US–Mexico border to wait in Mexico during pendency of their asylum claims.
FAMILY SEPARATIONS AND DETENTION
- End detention of children, whether accompanied or unaccompanied, separated or held together with their family, as it is never in their best interest.
- Reunify, unconditionally, as quickly as possible and sparing no costs, any and all children who remain separated from their parents or guardians.
- Halt family separations in all circumstances, except following a rigorous determination of best interests of the child, which must be articulated to family members and recorded in the case files of
- Strengthen mechanisms and procedures to ensure that the separation of children of asylum-seekers and migrants occurs only when it is in their best interest, including improved safeguards for the
determination of those best interests.
DETENTION OF ASYLUM-SEEKERS
- Ensure that liberty is the default position, and that the detention of asylum-seekers and other people
is exceptional and only resorted to when it is determined to be necessary and proportionate to a
legitimate purpose, based on an assessment of the individual’s particular circumstances.
- Resume and expand alternative-to-detention programs for all asylum-seekers, and particularly
asylum-seeking families, including the Family Case Management Program.
TO THE US DEPARTMENT OF JUSTICE:
- In line with US obligations under the international human rights treaties to which it is party: prohibit the practice of family separations; initiate a criminal investigation into the practice, and the harm it has caused to those subjected to it; hold accountable all those who authorized the practice; and grant compensation and other reparations to families who were separated, in order to ensure their rehabilitation, with specific attention to the needs of children.
- Abandon efforts to recognize Mexico as a safe country for all asylum-seekers, in violation of US and international law.