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IACHR conducted visit to the United States’ Southern Border

September 16, 2019

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) conducted a working visit to the United States’ southern border on August 19–23, 2019. The visit sought to observe the situation of human rights, concerning conditions of reception at the border; access to asylum and international protection procedures; conditions of detention for migrants and the practices associated with such detention; migration and asylum procedures; and due process guarantees and judicial protection. All these conditions were to be evaluated with an emphasis on the principles of family unity and best interest of the child.

The visit happened in light of Resolution No. 1106 (2168/18) issued by the Permanent Council of the Organization of American States (OAS). This resolution recommended that the Inter-American Commission conduct a visit to observe the consequences of migration, refugee, and asylum policies implemented by the United States, and take any measures it deemed appropriate in line with its mandate.

The delegation was composed by Commissioner Esmeralda Arosemena de Troitiño, the IACHR’s President and Rapporteur on the Rights of the Child; Commissioner Luis Ernesto Vargas Silva, Rapporteur on the Rights of Migrants; and Commissioner Margarette May Macaulay, Rapporteur on the Rights of Women and Rapporteur on the Rights of Persons of African Descent and against Racial Discrimination, and country rapporteur for the United States. The delegation was also joined by IACHR Executive Secretary Paulo Abrão; Assistant Executive Secretary María Claudia Pulido; and experts from the IACHR’s Executive Secretariat.

In the context of this visit, the Inter-American Commission travelled to the cities of San Diego and Laredo, and held working meetings with Customs and Border Protection (CBP) authorities and with consular authorities representing Mexico, Guatemala, Honduras, and El Salvador. The delegation also visited immigration courts and the Otay Mesa detention center, where it was granted broad access to the facilities and was able to interview detainees. Similarly, the IACHR met with civil society organizations, academics, migrant persons and asylum-seekers, and victims of human rights violations.

General background

In recent years, through its various monitoring mechanisms, the IACHR has observed a persisting, growing trend of asylum seekers trend in the region. The United States is no exception to this trend. In 2017–2018 alone, the IACHR observes a 11.9% increase in the number of asylum-seekers and a 9% rise in refugee-status recognition. According to the figures held in the report Global Trends: Forced Displacement issued by the United Nations High Commissioner for Refugees (UNHCR), by the end of 2018, 718,994 individuals had pending asylum requests in the United States, and there were also a total of 313,241 refugees in the country. In 2017, the UNHCR had said that there were 642,721 asylum-seekers and 287,129 refugees in the United States. In addition, according to data provided by the US Government, in April 2017 there were approximately 16,000 arrivals at the US-Mexico border while in May 2019 this number raised to 144,000 arrivals.

Likewise, the IACHR has been observing the increase in migration of persons from Guatemala, Honduras and El Salvador, who seek to reach the United States and, to a lesser extent, to Mexico. One of the factors that has influenced this increase are the so-called “migrant caravans”, which include persons with protection needs, such as asylum seekers, refugees, families, mothers, women, children and adolescents, in particular when they are traveling on their own. Regarding the magnitude of the phenomenon, the report Global Trends: Forced Displacement by UNHCR shows that at the end of 2018 there were 314,946 asylum seekers and 72,229 refugees from these countries worldwide, and reveals the complexities and challenges posed by the massive arrival of individuals in the context of mixed migratory movements.

Regarding the US, at the same time that the IACHR has observed the increase of migrants arriving by the southern border, it has also observed with concern the implementation of policies aimed at securitizing the border and criminalizing migration, which have in turn led to a growing use of migrant apprehensions or detentions and of people being denied entry at the border. Data provided to the IACHR by the US Customs and Border Protection (CBP) agency during this visit show a 91.7% increase in the number of individuals apprehended by the US Border Patrol in the country’s southwestern border. Of the 760,370 people who have been detained in 2019 so far, the CBP says that 69,157 were unaccompanied children and adolescents and 432,838 had entered the country in family units. Concerning denials of admission at the United States’ southwestern border, the CBP reported that a total of 102,415 people had been declared inadmissible in January–July 2019, while 124,511 had been rejected in 2018. The CBP said that, of all the people declared inadmissible at the border in 2019, it had identified 3,838 as unaccompanied children and adolescents, 793 as accompanied children and adolescents, and 41,949 as individuals in family units.

During this visit, the IACHR also received information about migrant detentions in the United States’ south border. CBP statistics show that detentions increased by 124% in eight months. Among the people who had been detained by May 2019, the CBP identified 23,944 unaccompanied children and adolescents and 135,812 individuals who had arrived in the country in family units.

The IACHR stresses that the international obligations and commitments to protect human rights voluntarily adopted by the United States stem from a series of international and regional instruments. These instruments include the Charter of the Organization of American States and the American Declaration of the Rights and Duties of Man, as well as the Charter of the United Nations, the Universal Declaration of Human Rights, the Protocol Relating to the Status of Refugees, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. The IACHR also stresses the applicability of general conventions that carry fundamental guarantees and specific protective provisions, such as the Vienna Convention on Consular Relations.

The IACHR understands that the States have the right to control their borders, define the requirements for admission, stay and expulsion of foreigners from their territory and, in general, to establish their migration policies. Nonetheless, the policies, laws and practices that States implement in migration matters must respect and guarantee the human rights of all migrants, which are rights and freedoms that derive from their human dignity and that have been widely recognized by the States on the basis of the international obligations pertaining to human rights matters that have resulted from international instruments, including those pertaining to refugees and stateless persons.

US migration policies

Since 2018, the United States has adopted a series of migration policies that have caused significant changes for the effective enjoyment of the human rights of migrant persons, asylum-seekers, and refugees in the country. Among these, the IACHR highlights the adoption of a Zero Tolerance policy in April 2018 and the implementation of the Migrant Protection Protocols (MPP) in January 2019. Based on the Zero Tolerance policy, the Department of Homeland Security may refer to the Department of Justice any migrant person who enters the United States between U.S. ports of entry, for them to be criminally prosecuted. Based on Migrant Protection Protocols, people who enter the United States between the ports of entry or at a port of entry without proper documents are sent back to Mexico and forced to remain there while they await their hearings with an immigration judge and while their removal proceedings unfold in the United States.

During its visit, the IACHR found that the implementation of this series of migration policies, particularly the ones mentioned above, seriously impacts the effective enjoyment of human rights by migrants, asylum-seekers and other people seeking international protection in the United States. Among the effects faced by these people, the IACHR wishes to highlight the following: i) the imposition of restrictions on the administrative and judicial mechanisms available to effectively access the right to request and be granted asylum; ii) a dramatic increase in the use of migrant detention, immediately and, in some cases, for long periods, with the effect of separating families and discouraging the pursuit of ongoing asylum proceedings, and of migration to the United States more generally; iii) the implementation of fast-track deportations through procedures without due process guarantees ; and iv) the forced return of individuals to the Mexican side of the border, as they progress through their immigration proceedings in the United States.

In this context, the IACHR stresses that migrating is not a crime and that many people engaged in migration movements need international protection, while many others are vulnerable and require special protection. The IACHR further stresses that the right to request and be granted asylum includes the right to present a request for the recognition of the refugee status. States have the duty to enforce adequate mechanisms to ensure effective access to the right to request and be granted asylum, and they must guarantee that these mechanisms enforce due process. Further, the IACHR stresses that the principle of non-refoulement mandates States not to return or expel anyone who has requested asylum to a country where there is a risk that they will be subjected to persecution, to cruel, inhuman, or degrading treatment, or to torture; or a risk that that country will, in turn, return them to a country where they will be persecuted or tortured.

Concerning the Zero Tolerance policy, while the 2018 preliminary injunction by the US District Court in the Southern District of California in the case of Ms. L put a brake on the family separations as a direct effect of Zero Tolerance policy, the Commission was informed during its visit that family separations persist in practice. The IACHR has identified that recurring aspects in enforcing family separation involve trying to refute family links with parents, with relatives in various degrees, or with legal guardians; and in some cases, involve alleging that the parent in question has been implicated in criminal activities. This latter aspect, according to US authorities, has been allowed under the terms of Ms. L’s preliminary injunction.

During the visit, the Commission received information regarding the metering system consisting of establishing daily quotas for receiving asylum applications at ports of entry at the southern border of the United States. The implementation of this system has resulted in the creation and use of informal lists in which the names of migrants seeking international protection are registered. Although the lists are not prepared by the US Government, in practice they are used to organize the entry of people seeking to submit an asylum application in the territory.An updated report on the metering system drafted by the Robert Strauss Center and the Center for US–Mexican Studies indicates that, by August 2019, there were approximately 26,000 people who had either put their names on the list or were waiting to do so in 12 Mexican border cities. The IACHR stresses that each port of entry on the border has a list managed by different actors, depending on the port in question. On this regard, the IACHR warns that this system is not uniform and, in practice, takes a different form at each border crossing. Among the effects derived from this system implementation, the IACHR highlights the significant restrictions to the right to request asylum, as well as the uncertainty and the increased vulnerability that they are subjected to due to the long waits under constraining conditions, including being subjected to practices of corruption.

On the other hand, the IACHR further notes that the Migrant Protection Protocols have restricted access to the right to request and be granted asylum. The IACHR received information from the report Preliminary Data: “Remain in Mexico”, drafted by the US Immigration Policy Center at the University of California San Diego, which says that, by August 19, 2019, a total of 31,800 people with pending immigration proceedings in the United States had been sent back to Mexico to await their US hearings. The report said that MPP participants were on average 33 years old, and that 59.9% of them were women and 40.1% were men. Concerning their place of origin, this report said that 46.9% were from Guatemala, 44.5% were from Honduras, and 3.6% were from El Salvador. Finally, this report found that 93.3% of individuals subject to MPP had travelled with other members of their family, that 97.4% had travelled with children under 18, and that 96.7% of them had relatives or close friends in the United States. Despite these alarming figures, the IACHR warned with concern that the majority of cases were still pending and that, by August 23, 2019, there was only one known case in all of the United States where one person had been recognized as a refugee through this program. Finally, the IACHR highlights the fact that, during its visit, it was able to observe the emergence of a processing facility, made up of tents and mobile units, at the Laredo port of entry, that is set to be operational in the coming weeks and will be expected to serve this program.

a. Access to justice

Concerning the right to access justice, the Commission found that US migration policies impose barriers on the exercise of this right by persons who are migrants, asylum-seekers, or refugees. In particular, the Commission observed the following issues: i) hurdles to prevent these people from physically attending their hearings in the United States, by forcing them to remain in Mexico; ii) new methodologies and conditions for credible fear interviews; iii) barriers to access to legal assistance and support for migrants and asylum-seekers at their credible fear interviews, court hearings, and administrative and judicial proceedings concerning their migrant status; iv) impact of judicial independence in the immigration court structure; and v) hurdles to identify, investigate, and punish cases concerning missing or dead migrant persons.

Regarding the main causes that have led to this situation, the IACHR has received information concerning the following: i) the short period of time granted by law for people to identify and appoint their legal counsel; ii) the requirement of a US address to be notified of proceedings; iii) delays in asylum proceedings and long waits for hearing dates, sometimes in cities that are not where the applicant is located; iv) immigration courts that are located inside detention centers with restricted access, given that they are managed by private companies; v) not enough resources to provide legal assistance to migrant persons and asylum-seekers, and lack of translators and interpreters; vi) appointment of immigration judges alleged to have previously worked as prosecutors for the Department of Homeland Security; vii) immigration court subordination to the authority of the US Attorney General, who sets the guidelines and directions for their actions; and viii) lack of national and transnational mechanisms specifically designed to search for missing migrants and to identify them, to collect forensic data, and to ensure cooperation among different institutions to facilitate this search.

While the IACHR was informed that a list of professionals willing to assist migrant persons and asylum-seekers free-of-charge or for moderate fees is provided to applicants, the IACHR was also told of obstacles to contact legal representatives or that both these professionals and the relevant migrant persons and asylum-seekers must be in the United States to access any potential assistance, which is not always possible given that these migrants and asylum-seekers are often forced to wait in Mexico in the context of the MPP policy. The IACHR notes that the situation is even tougher for migrants who are deprived of their liberty, since conditions of detention create additional hurdles for access to legal assistance, and therefore to justice.

b. Conditions of detention

The US Immigration and Customs Enforcement (ICE) agency has a total of 132 detention centers in the United States. Some of these centers are managed by private companies, mainly Core Civic and GEO Group. According to ICE data, there were a total of 54,344 detained migrants in the United States as of August 24, 2019; of these, 18,439 were in ICE custody, and 35,905 were in CBP custody.

The Commission visited the Otay Mesa detention center, managed by the private firm Core Civic, which provides services to ICE and the United States Marshals Service (USMS). The Otay Mesa center currently holds 981 detained migrants, 804 men and 177 women, in ICE custody. The IACHR was concerned to hear, during its visit to the facility, that both detained populations are subjected to the same detention regime. The Commission values the broad access to center facilities that the United States government granted its delegation, along with opportunities to interview detained migrants. The IACHR interviewed more than 30 people who explained the circumstances that had led to their deprivation of liberty based on their migrant status. The Commission also heard complaints about unjustifiably long detentions, negligent medical care, a failure to provide enough adequate food to detainees, barriers to phone and online communications, lack of family contact, and lack of access to legal counsel.

The Commission further expresses its particular concern about the many testimonies it heard concerning conditions of detention in CBP holding locations, colloquially called hieleras (ice boxes in Spanish), the processing units where individuals under CBP custody are initially taken. According to the information the IACHR obtained during the visit, hieleras take their name from the low temperatures maintained in these units, in order to prevent the transmission of infectious diseases. The IACHR was told that, in many cases, these low temperatures are the main cause of respiratory diseases for people held in those facilities, especially children.

While the Commission did not have access to the CBP holding locations, it was extensively informed about overcrowding at those sites, where detainees sleep on the floor without a mattress or with blankets that are unsuitable for such low temperatures. The IACHR was further told that food in these facilities is inappropriate and consists mainly of juices and frozen burritos, while hygiene is also inadequate since detainees are not given basic supplies such as toothbrushes or toothpaste. Toilets are open, and they are not separated from detainees’ sleeping quarters. Finally, the IACHR was informed that detention in these CBP holding locations usually lasts longer than the mandatory 72-hour maximum, which has a significant impact on detainees’ mental and physical health. In addition, the IACHR expresses its concern about new regulations published on August 21, allowing the authorities to hold families in detention centers for unlimited periods.

Beyond physical conditions of detention, the Commission consistently heard complaints about discriminatory, abusive treatment and physical and psychological violence in CBP holding locations and other detention centers. To this effect, the IACHR wishes to underline that in the cases of children and adolescents, the impact of this treatment is aggravated by their special condition of vulnerability. Data issued by the US Immigration Policy Center at the University of California San Diego suggested that 232 cases of verbal abuse and 40 cases of physical violence had been reported in that area. The IACHR was also informed of 18 cases where detainees had had personal belongings stolen and personal documents retained, including identification cards and other documents that are essential for successful asylum requests. The IACHR observes that this university’s research found that 61% of all complaints concerned quality in the supply of food and water, 34% were linked to hygiene, and 46% mentioned poor sleep, due to low temperatures and lights that were constantly on inside facilities.

Impact of migration policies on groups who are particularly at risk

During its visit, the IACHR also found that the implementation of US migration policies has a particular, differential effect on groups who are especially at risk, including indigenous persons, women, children, adolescents and human rights defenders.

Concerning indigenous persons, based on data held in the report Seeking Asylum: Part 1 published by the US Immigration Policy Center at the University of California San Diego, at least 20.2% of surveyed asylum-seekers spoke indigenous languages and could not communicate in Spanish. The IACHR was able to document that there were not enough translators and interpreters, which hurdles the possibility to express oneself in one’s own language, and the capacity to understand administrative and judicial documents and proceedings. Indigenous persons are therefore at a disadvantage in terms of their access to procedures and the exercise of their right to counsel, since they lack the interpretation services they need and they lack access to administrative and judicial officials who understand their sociocultural representations and linguistic diversity. In this regard, the IACHR recalls that in accordance with international standards, States must take measures to ensure that indigenous persons can understand and be understood in legal proceedings —including administrative migration procedures— by providing interpreters or other means necessary for this purpose.

Concerning women’s specific situation, the IACHR expresses its concern about reports on the inclusion of pregnant women in the MPP program. The Commission also heard complaints about the lack of sexual and reproductive healthcare services suitable for women in detention centers. Similarly, from the information collected it is evidenced that women do not have access to the hygiene products necessary based on their gender. In this context, the Commission recalls that according to the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, women deprived of liberty have a right of access to specialized medical care, which adequately responds to their physical and biological characteristics as well as their reproductive health needs. In addition, States must regularly provide women with the essential items for the health needs of their sex.

The IACHR also observed serious challenges to protect the rights of children and adolescents. Although several court decisions have established that separation may only happen in specific circumstances and should always uphold the child’s best interests, family separation continues to be a common practice. According to data provided by the US Government, at least 2,814 migrant children might have been separated from their families by October 15, 2018. On the other hand, ACLU suggest that, by July 2019, more than 900 parents and children had been separated after the Ms. L preliminary injunction in 2018. Further, during its visit the IACHR received various testimonies indicating how the implementation of this separation policy implies setting up barriers to prevent contact between children and their families. This contact is crucial for their comprehensive development and for the preservation of family units, and even to locate the child and to enable family reunification.

Likewise, the IACHR heard testimonies about difficult situations faced by defenders of the rights of migrants and asylum-seekers in the exercise of their efforts. The IACHR has been able to establish that the following issues are common: i) restrictions to meet the people they assist, especially when these are detained; ii) threats and harassment, sometimes through formal charges that allege they have violated the law; and iii) an inability to communicate over the telephone and restrictions of movement, including obstacles faced by rights defenders with US Nationality in the return to their country, among others.

Finally, the Commission emphasizes that the phenomenon of forced migration, whether for economic reasons or for the search for protection, requires an approach from the States based on the principles of solidarity, cooperation and shared responsibility that make it possible to address the structural causes of forced migration, while expanding access to asylum and ensuring non-return to individuals whose life and integrity are at risk.

Recommendations

Given constant monitoring of the situation by its different mechanisms and, in particular, given its recent visit, the IACHR has had the opportunity to observe the serious impact of US migration policies on the effective enjoyment of human rights by migrants, asylum-seekers and refugees who seek international protection, and their impact on the United States’ asylum system itself. In this context, the IACHR recommends that the State take the following measures:

1. Protecting the right to request and be granted asylum, by taking all measures necessary to ensure access to the proceedings available to do so. In this context, the State must end the obstacles and unjustified delays in proceedings, and provide free legal assistance to applicants, complete with translation and interpretation services.

2. Adapt national legislation to international standards under which migrating is not a crime and many people engaged in migration movements need international protection, while many others are vulnerable and require special protection.

3. Adapt internal migration norms, policies, procedures and protocols to international norms and standards in migration matters; in particular, the Migrant Protection Protocols (MPP).

4. Ending fast-track deportations and automatic returns, since they are not based on individual decisions that duly consider all due process guarantees, and prioritizing consideration of the principle of non-refoulement.

5. Adopt necessary measures in order to safeguard the right to counsel of migrant persons, asylum-seekers, and refugees in administrative and judicial procedures concerning their migrant status and international protection.

6. Ending lengthy migration detentions and taking any measures necessary to implement alternatives to deprivation of liberty that allow for migrant persons and asylum-seekers to be able to remain on US soil.

7. Ensuring conditions of detention that meet international standards for deprivation of liberty. In particular, granting access to medical and healthcare services—especially for pregnant women who are migrants and asylum-seekers—and access to adequate food, water, and hygiene. Similarly, the State must ensure protection against ill-treatment and discrimination against detained individuals.

8. Closing the processing centers supervised by the CBP.

9. Ending the practice of detaining children and adolescents in detention centers.

10. Prioritizing the child’s best interest in all administrative and judicial decisions that concern a child or adolescent and their family.

11. Prioritize the principle of family unity, and forego with the Zero Tolerance policy and the policies and practices that criminalize migrants and their families in any circumstances. This is crucial to enforce the principle of the best interest of the child.

12. Continue with the implementation of actions aimed at reunifying families that have been separated. For this, the State must promote the exchange of information between government agencies, to make it possible to locate children and adolescents, and their parents or other relatives.

13. Taking any measures to protect defenders of the rights of migrant persons, asylum-seekers, and refugees, as well as the right of these defenders to do their job and to effectively access justice. Immediately ending threats and acts of harassment against these defenders.

14. Creating national and transnational mechanisms that enable an effective, timely identification of missing or dead migrant persons, and to make it possible to investigate those cases, punish anyone responsible for them, and provide the applicable reparations.

15. Ratifying the American Convention on Human Rights, the Convention Relating to the Status of Refugees, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the Convention on the Rights of the Child.

The Commission thanks the following actors for their cooperation before and during this visit: the authorities of the United States; consular authorities representing Mexico, Guatemala, Honduras, and El Salvador; civil society organizations; academics; migrant persons and asylum-seekers, and victims of human rights violations. The information that the IACHR received and gathered will be crucial to improve its work in the United States, along the country’s southern border, and across the region. Through its mechanisms, the IACHR will continue to monitor the human rights situation of migrant persons, asylum-seekers, and refugees in the United States, as well as the effects of implementing US migration policies on the effective enjoyment of the human rights of these people and on compliance with the United States’ international human rights commitments.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 228/19