Is the U.S. Following International Law at the U.S.-Mexico Border?

Kelsey Vanoverloop, Associate Editor, Michigan Journal of International Law

Though reports show that the number of unaccompanied minors attempting to cross the U.S.-Mexico has diminished compared to this summer, the crisis is far from over. [i] According to Jeh Johnson, Secretary of the Department of Homeland Security (DHS), “[w]e continue to have much work to do to address this issue and our message continues to be clear- ‘our boarder is not open to illegal migration.’”[ii] Nevertheless, while these children may be breaking American law when they attempt to enter the country illegally, once they are inside US borders, the United States has a responsibility to ensure their safety and protect their rights under international law. The United States greatly contributed to the economic and political conditions in these countries[iii] and now we are dealing with the consequences in the form of a mass migration.[iv] From October 1, 2013 to July 31, 2014, almost 63,000 unaccompanied children were caught at the U.S.-Mexico boarder, compared to almost 31,500 in the previous year during the same time.[v] Though some lawmakers blame polices like Deferred Action for Childhood Arrivals (DACA)[vi] for the increase, the real reasons go much deeper. The majority of children arriving come from El Salvador, Guatemala, Honduras, and Mexico, countries that have been severely affected by free-trade agreements like CAFTA and NAFTA, the “War on Drugs,” and American immigration policy.[vii]  As a result of these policies, these countries have become some of the most violent places on earth; for example, Honduras has the highest murder rate worldwide.[viii]  Most of the violence in all of these countries is attributed to gang and drug trafficking activities, much of which was exported from the United States.[ix] The United States tightened its immigration policy in 1996, mandating the detention and deportation of noncitizens who were convicted of an “aggravated felony” and expanding the list of offences considered an “aggravated felony.”[x] This led to the deportation of more immigrates who had been convicted of crimes, both violent and non-violent.[xi] Immigrants, associated with American gangs in Los Angeles, were sent back to El Salvador and Honduras, countries the immigrants had spent little or no time in since arriving in the U.S.[xii] The repatriated were offered no help or rehabilitation as they tried to integrate into cultures and societies they neither knew or remembered.[xiii]  “Th[e] American style of gangsterism . . . mixed with local gangs,” and created “[the] violent and murderous mash-up” seen today in Honduras and El Salvador.[xiv] This expansion of gang violence, the effects the “War on Drugs”[xv], and the lack of economic opportunities created an environment of fear and chaos in Honduras, El Salvador, and Guatemala.[xvi] Gang members threaten children in school and on the street, killing them if they refuse to join the gang as a “foot soldier,” and kidnappings, stabbings and attacks on public transportation are regularly reported.[xvii] An unaccompanied minor from Honduras told the United Nations High Commissioner for Refugees (UNHCR), “[m]y grandmother wanted me to leave. She told me: ‘If you don’t join, the gang will shoot you. If you do join, the rival gang will shoot you – or the cops will shoot you. But if you leave, no one will shoot you.’”[xviii] This violent environment and lack of protection in their home countries triggers protections for these unaccompanied minors under international law, as does their status as children. The effectiveness of the police forces in Honduras,[xix] El Salvador,[xx] Guatemala,[xxi] and Mexico[xxii] suffers from corruption and a lack of resources, and the US State Department has recorded multiple episodes of human rights abuses committed by the security forces in these countries. Because these children’s home countries either cannot or will not protect them from violence, it is up to the international community to ensure their basic human rights are respected.[xxiii] “The principal means for providing international protection to individuals unable to receive protection in their countries of origin is the 1951 Convention relating to the Status of Refugees.”[xxiv] Under this convention, a refugee is someone who

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.[xxv]

If a child is determined to be a refugee based on this definition, he or she is entitled to protections, the most important being non-refoulement – or “the guarantee against return to danger.”[xxvi] UNHCR has also recommended that children that do not meet the traditional definition of a refugee under the 1951 Convention but face “serious internal disorder, massive human rights violations, generalized violence or other forms of serious harm”[xxvii] if returned to their home country should be offered a formal, legal status “for the period of time necessary to safeguard their safety and security.”[xxviii] UNHCR conducted a study of the unaccompanied children at the U.S.-Mexico border to determine why they left their home country and if the children are in need of international protection.[xxix] The organization found that 58% of the unaccompanied and separated children attempting to cross the border would likely qualify for international protection.[xxx] The most common reason the children gave for fleeing their country of origin was violence by organized armed criminal actors, and the second most common reason was violence in the home, both of which could qualify the children for international protection.[xxxi] Though it is clear that many, if not the majority of these children are in need of international protection, it is likely many will ultimately be deported. 93% of unaccompanied children lose their immigration cases in U.S. courts, in large part because they do not have legal representation to assert their rights as refugees.[xxxii] It is likely that as many as 40% of those children “could have qualified for an exemption to deportation” under current U.S. immigration law.[xxxiii]  However, “[l]egal representation in removal proceedings is famed expressly as a privilege, not a right . . . ,”[xxxiv] so most unaccompanied children are left with no voice and no advocate as they attempt to navigate the U.S. immigration system. The Convention on the Rights of the Child, however, says children have the right to be heard in any judicial or administrative manner.[xxxv] It establishes that, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”[xxxvi] Finally, the Convention

provides that any child seeking refugee status, accompanied or unaccompanied by parents or another responsible adult, ‘shall … receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.’[xxxvii]

Although the U.S. is one of the three countries in the world that has not ratified the treaty,[xxxviii] the country did actively participate in drafting the Convention, signed it, and the U.S. Supreme Court has looked to the convention in its jurisprudence about juveniles.[xxxix] Therefore, even though the US is not a signatory, it should look to the international law principles established in the Convention on the Rights of the Child and the 1951 Convention relating to the Status of Refugees to determine how to treat these children. This means that each child should have representation in the US courts and be properly evaluated to determine if he or she qualifies for international protection. The international community has recognized that children, especially those seeking refugee statues, need special consideration, assistance, and protection when they are forced to fight for their rights. By not providing effective council for these children, the United States is denying the majority of them access to their right as refugees of non-refoulement. Furthermore, the fact that American policy has in large part lead to the dangerous situation these children face in the home countries should trigger the United States’ duty to protect these children and push the United States government to follow the recommendations of UNHCR and create a formal, legal status that would ensure their safety until the danger has abated.