1/25/22

The Department of Homeland Security asked for Public Comments: Identifying Recommendations to Support the Work of the Interagency Task Force on the Reunification of Families.

This comment has been submitted by Camilo Pérez-Bustillo, J.D. on behalf of WITNESS AT THE BORDER, with the support of the Task Force on the Americas of the National Lawyers’ Guild, the Forum on Haitian Migration in the Americas, and the International Tribunal of Conscience of Peoples in Movement.

“No, no, we are not satisfied and will not be satisfied until justice rolls down like water and righteousness like a mighty stream.”

(“I Have a Dream” speech, August 28, 1963)

“With the first action today we are going to work to undo the moral and national shame of the previous administration that literally, not figuratively, ripped children from the arms of their families at the border and with no plan, none whatsoever, to reunify the children who are still in custody and their parents”

(President Biden, as he signed Executive Order creating task force to address Trump era family separation cases, Feb. 2, 2021)

INTRODUCTION:

Dr. King’s Legacy and Rights to Full Reparations and Restorative Justice

We have recently urged in an open letter released on January 17th, the day that Dr. Martin Luther King’s legacy was commemorated this year, that the Biden administration should honor his memory by upholding the rights of migrant victims of family separation to full reparations and restorative justice, including the creation of a truth commission to investigate and document serious human rights crimes on both sides of the border.

 The task force created by the February 2021 Executive Order is a necessary but sorely insufficient step towards the much broader remedies that correspond to such cases. The administration’s duty to take these steps is being drastically undermined by its current policies, as we note in detail below and in a newly released podcast.

The Trump administration’s policies of family separation included acts which constitute forced disappearances and torture, which have been recognized internationally – and by the US – as “crimes against humanity.” These were the worst human rights crimes committed on US territory since torture at the Guántanamo detention camp in the aftermath of 9/11.

It is especially appropriate that the Biden administration take full measures to respect, protect, and fulfill victim’s rights to memory, justice, full reparations, and restorative justice in Dr. King’s memory, because of his universalist commitment to human rights, as well as his foundational commitment to restorative justice and reparations in compensation for historical crimes against people of African descent in the US. 

The Biden administration should also take urgently needed remedial steps within the context of human rights crimes at the US-Mexico border and immigration enforcement, because of the persistent disproportionate impact of US immigration policy and border policy on communities of color. Family separation, and the continued use of Title 42 and the “Remain in Mexico” policy as pretexts for the negation of the right to seek asylum on both sides of the border, reflect these continuing legacies today, with the active complicity (and thus ultimate responsibility) of both US and Mexican authorities.

1. HISTORICAL ORIGINS AND CONTINUING LEGACIES OF FAMILY SEPARATION

Racism and xenophobia have been the intertwined guiding threads of US border and immigration policies since their origin. This includes the genesis of forcible processes of family separation in the African slave trade and African slavery, and in the genocidal policies imposed within the framework of European settler colonialism against indigenous communities throughout North America. These culminated in compulsory residential or boarding schools for indigenous children and continuing abuses within the framework of family and child welfare systems, the administration of orphanages, and adoptions. The overall objective of these policies, as in Canada and Australia under similar circumstances, was to “assimilate” these children by destroying their identities. Trump-era family separation policies shared crucial features of these long-standing genocidal practices.

Mass deportation of persons of Mexican origin in the 1930’s and 1950’s reproduced these destructive mechanisms of family separation through practices of detention and deportation, which have reappeared with the recent mass deportations of Haitians carried out by the Biden administration throughout the last few months. Similar practices which resulted in involuntary separation of families were engaged in during the period of internment of persons of Japanese origin between 1942 and 1945. The Trump Administration’s family separation policies embodied all of the most regressive, convergent characteristics of these oppressive practices whose objective was to destroy the families and communities which were targeted.

These legacies are reflected in the large numbers of migrants of African descent and of indigenous origin who were among the victims of the Trump administration’s family separation policies, as reflected in the lead plaintiff in the paradigmatic Ms. L case (an asylum seeker originally from the Democratic Republic of the Congo), and in 2 of the 3 of the named plaintiff families in the Wilbur P.G case (asylum seekers of Maya Mam indigenous origin, from Guatemala), among others.

2. BIDEN ADMINISTRATION’S WITHDRAWAL FROM SETTLEMENT NEGOTIATIONS IN FAMILY SEPARATION CASES, AND DEFENSE OF TRUMP’S POLICIES IN FEDERAL COURT

The Biden administration has recently announced its decision to withdraw from global settlement negotiations regarding pending family separation cases and to litigate each of these individually. More than 5,500 children and families who were victims of Trump-era policies may be affected by this decision. This includes many who were seeking to exercise their internationally recognized rights to seek asylum and were in effect punished for this, by being subjected to both the forcible separation of their families and to detention under inhumane conditions, pursuant to Trump’s “Zero Tolerance” policy, and more recently through mechanisms such as Title 42 and the reactivated “Remain in Mexico” policy.

The administration has “denounced the prior practice of separating children from their families at the US–Mexico border” and “condemn[ed] the human tragedy” that ensued. But it has also argued, unconscionably, that the decision to separate and detain these families and others fell within the federal government’s “reasonable” range of discretion as to its choices in immigration policy. 

The Biden administration cannot have it both ways. The practical effect of the position you have taken would prevent further proceedings and trials in these pending cases, and the denial of the full compensation to which these victims are entitled. This compounds the original injustices which have led to the filing of cases of this kind, and further exacerbates the suffering and victimization of these families and children.

The Biden administration has also argued that Trump’s family separation and detention policies were lawfully executed, and thus activated immunity for those who implemented these deliberate acts of cruelty. This in practice would likely result in impunity for Trump officials who were responsible for the massive suffering inflicted on thousands of migrants between November 2017 and June 2018, due to these policies and their continuing effects. This also leaves the door open for future administrations to opt again for the criminal policies that the Biden administration has agreed must be repudiated.

3. FAMILY SEPARATION INCLUDED ACTS WHICH CONSTITUTE PROHIBITED INSTANCES OF FORCED DISAPPEARANCE AND TORTURE, WHICH HAVE BEEN RECOGNIZED AS “CRIMES AGAINST HUMANITY”

Trump-era family separation and detention policies were clearly unconstitutional, violating fundamental rights of family integrity and substantive due process. They also included practices which violated the US’ obligations pursuant to international law. These acts were equivalent to torture and forced disappearances, according to leading legal and clinical experts.

This is because they involved practices which have been defined as “crimes against humanity” pursuant to Article 7 of the Rome Statute of the International Criminal Court. All victims of human rights crimes of this kind are entitled to just and adequate remedies. International crimes of this order of magnitude trigger state duties to fully redress victims’ rights to truth, justice, and to material and symbolic forms of reparation, as well as guarantees of non-repetition, according to internationally recognized standards. 

No administration, and no public official has the “discretion” or “option” to promote or implement policies that are unconstitutional and/or that violate international human rights standards. This is especially so, as in the cases of family separation during the Trump era, where the acts at issue (forced disappearances and torture) rise to the level of “crimes against humanity”.

A. FORCED DISAPPEARANCES

As plaintiffs have alleged in the complaint filed in Wilbur P.G et. al v. USA in the US DistrIct Court for the Northern District of California, families subjected to the Trump administration’s family separation policies were often held in separate, different facilities that were unknown to them, distant from each other, and were denied the right to communicate with their fellow family members. This reproduces the kinds of paradigmatic conditions which have been defined as constitutive of “enforced disappearances,” pursuant to international human rights law and international criminal law: 

 “When the government separated these families, the Plaintiff children were 6, 11, and 13 years old. The children did not know why they had been separated from their parents. The parents did not know why they had been separated from their children. None of the Plaintiffs knew whether they would ever be reunited with their families, and at various times, Plaintiffs believed that they might be deported from the United States alone, without their accompanying family member. All suffered from extreme emotional distress at the point in time when the government forcibly separated them, went on to endure additional weeks of sustained emotional distress during their forced separation, and then continued to experience lasting emotional distress even after they were reunified. This suffering was the intentional purpose of the Policy.” (para. 4, p. 3 of the complaint)

 Dr. Gerald Gray, a psychotherapist and clinical social worker specialized in treating victims of torture, and co-founder of the renowned Center for Justice and Accountability, noted the following in the first text published in the US (shortly followed by others published internationally) which argued that Trump’s policy of family separation must be understood as involving acts of forced disappearance and torture:

 “What is happening with the..separation of children from parents or other caretakers is one form of forced disappearance—in this case, the kidnapping of two parties instead of one.  Even if the parent or caretaker knows enough of the prison staffs’ language (presumably usually English), they don’t really know most of the time where the children are, who is responsible for them and whether they care, how the childrens’ health is, and if and when they will ever see the children again.

 For the children, the separation is even worse—are the parents or caretakers alive? what are the guards in the prisons saying in a new language?, what does  “Chicago” mean?, how can they survive bullying or sexual predation?  And of course, if and when will they ever again see their families or caretakers?  An adult may sometimes temporarily have a rough idea of the location of a childrens’ prison, but without language, constant contact, and all the education required to understand geography children have an impossible task.  For the reader here, look at the clinical literature on the outcome of kidnapping or holding children as hostages.”

All of this suffering was compounded for families of indigenous origin who spoke neither English nor Spanish proficiently, and were systematically denied necessary attention and services in their native indigenous languages. This included children from involuntarily separated families detained under inhumane conditions in abusive settings such as the Tornillo (Tx.) and Homestead (Fla.) facilities. 

As of November 2018, a Guatemalan consular official estimated that approximately 40% of the thousands of children unjustly held at Tornillo were of Guatemalan, mostly indigenous origin. Many of these children had their origins in Guatemala’s poorest and most marginalized indigenous communities, which bore the brunt of the US-backed genocide which targeted these regions during Guatemala’s civil war between 1962 and 1996. Forced migration from these communities today is in effect the continuation of the same kinds of structural injustices which led to genocide and resulted in massive forced displacement and exile during that period.

A member of Witness at the Border’s leadership team was able to confirm at this time that the Guatemalan children he interviewed were all of indigenous origin, in need of appropriate services in their own languages, and suffering deeply because of their mistreatment by US officials and the precarious conditions which characterized their confinement. Within less than a month, 2 indigenous Guatemalan migrant children aged 7 and 8 died in the custody of the Border Patrol in the environs of El Paso, due to the deliberate neglect of their urgent medical needs in confinement.

B. TORTURE RELATED TO PSYCHOLOGICAL AND EMOTIONAL SUFFERING DELIBERATELY INFLICTED ON MIGRANT FAMILIES

As renowned US human rights scholar Beth van Schaack has argued:

“the family separation policy as implemented implicates the international prohibitions against torture; cruel, inhuman or degrading treatment or punishment; and even forced disappearances. In the following analysis, I compare the impact of the family separation policy against the international and domestic definitions of torture and other forms of mistreatment prohibited by international law…

[T]he neurological, physiological, and psychological impact of acute childhood traumas like forcible family separation and indefinite detention rises to the level of severe pain or suffering—and thus torture—under international law. Most importantly, this policy has the potential to cause long-lasting psychological harm to all the parties involved. This is especially true for children, who can experience enduring damage if subjected to toxic stress at crucial developmental stages. The threshold at which treatment or punishment may constitute torture is thus lower when it comes to children, especially when they are deprived of their liberty, because children are still developing physically and emotionally. All told, the family separation policy amounts to government-sanctioned torture.

This conclusion that the family separation policy constitutes torture is consistent with the jurisprudence from human rights courts charged with interpreting the key human rights treaties. For example, the European Court of Human Rights has recognized that the mental pain and suffering that comes from knowing that a child has been detained but not knowing the child’s fate can constitute torture and/or ill-treatment of the parents. Similarly, the Inter-American Court of Human Rights has recognized that separations occasioned by forced disappearance can constitute torture and ill-treatment of the disappeared persons and family members.

Family reunions will not necessarily mark the end of these children’s struggles. As a result, child survivors of the Trump administration’s “zero tolerance” policy are likely to have lasting psychological effects. These harms are further compounded by the fact that many of these children have faced horrific trauma in their home countries, which caused their families to flee in the first place. Accordingly, the ACLU is seeking psychosocial rehabilitation for their clients as a form of reparation. Prompt access to appropriate physical and psychological health services is critical to mitigating the harmful effects of immigration detention, especially in children.”

These arguments are developed in further detail in the Amicus brief in the D.J.C.V et. al vs. USA case submitted on behalf of Stanford University’s Human Rights in Trauma Mental Health program, whose co-founders include Gerald Gray and Van Schaack.  

CONCLUSIONS

The position that the Biden administration has taken in its recent filings in the family separation cases is the predictable result of its failure to settle the claims of thousands of victims of these criminal policies.

As Beth van Schaack has noted, in a related context: “it is not enough for the Biden-Harris administration to simply reverse course; it must also think creatively, and empathetically, about how to ensure restorative justice, including potential forms of restitution, reparation, and rehabilitation, such as psycho-social support; renewed and expedited immigration proceedings and relief; a stable immigration status in the United States while proceedings are pending; a public acknowledgement of the harms caused; and pledges that these violations will never be repeated.”

We stand with the children and families who were victims of these crimes to demand full measures of accountability, reparations, and restorative justice for all human rights violations related to the forced separation and detention of migrant families, regardless of the administration which is responsible. The Biden administration’s current approach amounts to active complicity with the continuing effects of these extraordinarily serious violations.

The Biden administration has the moral, ethical, and legal obligation to fully redress all of the injuries and suffering inflicted by these criminal policies. This must be undertaken through a comprehensive program of restorative justice, consistent with the international standards that are referenced above.

This goes way beyond the limited mandate of the Interagency Task Force on the Reunification of Families. What is needed, in addition, is a full-fledged transitional justice process including a truth commission empowered to investigate and document serious human rights crimes on both sides of the border, and to make recommendations for needed reparations and measures of restorative justice, consistent with international standards.

This commission’s mandate must include not only family separation, but also the continued deployment of Title 42 and the “Remain in Mexico” policy, and the mass deportations of Haitians, among other specific instances, as well as their historical origins and contemporary implications. It must also include human rights crimes attributable to US policy that have unfolded on Mexican territory and beyond, as part of the extra-territorial impact of policies such as “prevention through deterrence”.

This is the Biden administration’s duty, pursuant to international law.

As the UN’s Secretary-General has noted,

“The normative foundation for the work of the UN in advancing transitional justice is the Charter of the United Nations, along with four of the pillars of the modern international legal system: international human rights law, international humanitarian law, international criminal law, and international refugee law. Specifically, various UN instruments enshrine rights and duties relative to the right to justice, the right to truth, the right to reparations, and the guarantees of non-recurrence of violations (duty of prevention). In addition, treaty bodies and court jurisprudence, as well as a number of declarations, principles, and guidelines  have been instrumental in ensuring the implementation of treaty obligations. To comply with these international legal obligations, transitional justice processes should seek to ensure that States undertake investigations and prosecutions of gross violations of human rights and serious violations of international humanitarian law, including sexual violence. Moreover, they should ensure the right of victims to reparations, the right of victims and societies to know the truth about violations, and guarantees of non-recurrence of violations, in accordance with international law.” (emphases added)