The refugee crisis on the southern U.S. border has inflamed passions from both sides of the political spectrum. Unfortunately, the current situation regarding families fleeing violence in Central America is not neatly framed by right and left perspectives but is far more nuanced; one that is ripe for respectful discussion and creative solutions.
A recent commentary expressed frustration that U.S. law will not allow the government to “simply” send refugees back home. This frustration may be natural, but misunderstands the history and development of asylum law in America.
The U.S., under refugee and asylum law, has consistently offered protection to those fleeing persecution. Modern asylum and protection policies were incorporated into international treaties following the Nazi persecution of Jews during World War II. Current law derives from two of those treaties; the 1951 U.N. Convention Relating to the Status of Refugees and the convention’s 1967 protocol.
These treaties recognized our obligation to provide protection to individuals who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion,” are outside the country of their nationality and are “unable or, owing to such fear, unwilling to avail themselves of the protection of their home countries.”
The treaties’ most basic requirement is nonrefoulment, the duty not to return a refugee to a country in which his or her life will be threatened. The U.S. ratified the protocol in 1968, and the nonrefoulment and asylum obligations were made U.S. law by the Refugee Act of 1980. Another key point is that a person seeking asylum in the U.S. must be present on U.S. soil to make such a request. Families and children presenting themselves at the U.S. border are seeking to enter the U.S. legally under these laws.
More recently, the William Wilberforce Trafficking Victims Protection Action Act (aka TVPRA), provided certain children an opportunity to be screened for an asylum hearing as potential victims of human trafficking, but being screened for the potential of a hearing is not the same as receiving a hearing.
In contrast, Deferred Action for Childhood Arrivals is a discretionary determination to defer removal action of certain people who came to the United States as children before 2007 and meet several key guidelines. If those guidelines are met, the children may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Deferred action does not confer lawful status upon an individual, nor does it entitle one to an asylum hearing.
It is important for America to adhere to these legal principles in order to continue our reputation of upholding basic fundamental freedoms and human rights, such as the freedom from oppression, the freedom of religion and freedom of speech. The current government response shows why immediate deportation does not work.
About one month after Immigration and Immigration and Customs Enforcement (ICE) opened the detention facility in Artesia, N.M., I spent a week there providing pro bono services to women and children from Central America. At that time, the government, through the statements of the ICE, Asylum and Immigration Court officers in Artesia, made clear that immediate deportation was the goal.
There, I met with woman after woman after child who had fled unbearable atrocities in their country. One had been raped by a gang member after refusing to help the gang and was pregnant from the rape. One had been kicked out of her family home for attending a non-Catholic Church. One child had broken his leg fleeing from the gang in his town. Another child could no longer attend school for fear of harm from the gangs, after his friend was killed. Another woman had been dragged through the streets behind a motorcycle by her ex-boyfriend after she obtained a restraining order. Another woman just wanted to try to provide her children with a better future.
Not all of these people will be able to present a valid asylum claim and they will be deported, which is how the system should work. But in Artesia and in other detention centers, the government is not providing basic due process rights before it summarily deports these refugees. It is giving them insignificant food, water and denying them access to counsel by failing to provide phones, by refusing to bring them to speak with the volunteer attorneys, and by telling them that they will be deported no matter what they do, among other things. Further, there is now evidence that some repatriated individuals are indeed succumbing to the violence that they were trying to flee.
This is not an economic migration, but a refugee crisis occasioned by extreme violence. We can’t live in an America that has forgotten the basic values and laws that the country was founded upon and that protect those most vulnerable.
Jennifer Smith is a Glenwood Springs immigration attorney.