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Family Separation Update: PHR’s response to Secretary Nielsen

As you may remember, within days of the first family separations at the U.S. border, more than 20,000 medical professionals and PHR supporters condemned the barbaric practice in a letter to Department of Homeland Security (DHS) Secretary Kirstjen Nielsen.

She then responded with a letter full of obvious factual errors and misleading doublespeak.

Secretary Nielsen’s response proves that the U.S. government is clearly ready to sweep this – and hundreds of still-separated children – under the rug. But we will NEVER allow polite words and bureaucratic smoke screens to deter us from fighting back. So we have sent a full and full-throated response to Secretary Nielsen that you can read below. We will continue to fight to prove that facts still matter. The health and human rights of these children still matter. And it’s your actions and contributions that are allowing us to scale up our resistance in the weeks to come. Thank you.

***

The Honorable Kirstjen Nielsen
Secretary
U.S. Department of Homeland Security
3801 Nebraska Avenue, N.W.
Washington, D.C. 20528

Dear Secretary Nielsen,

Thank you for responding to Physicians for Human Rights’ (PHR) letter, which conveyed the grave concerns of over 20,000 health professionals around the country about the severe medical and mental health harms of family separation and related enforcement actions of the Department of Homeland Security (DHS). Your July 19, 2018 letter raised a number of serious issues which we would like address.

Although you deny a “blanket policy” of family separation, your agency implemented “zero tolerance” by systematically separating families at the border and now faces a court order to reunite the families torn apart under this policy. As an initial matter, all immigration policies should respect basic human rights of all migrants, regardless of their immigration status or manner of entry.[1] Criminal prosecution for the administrative infraction of irregular entry fails to comply with U.S. obligations under international law.[2] Criminalizing irregular migration is disproportionately punitive and harsh, and contributes to intolerance and xenophobia.[3]

As referenced in PHR’s letter of June 14, 2018, forced separation violates U.S. and international law protecting the rights of children, as well as refugees and migrants, including the right to family unity. Although your letter describes separation as a collateral consequence of illegal border crossing, parents who presented at ports of entry were also separated from their children, for example, Ms. L, the lead plaintiff in Ms. L v ICE. Seeking asylum at the border is a legal right under US law.[4]

DHS has instead imposed family separation by refusing to exercise lawful discretion in granting parole requests to asylum-seeking families, which would allow them to remain together in community settings.[5] The arbitrariness of such refusals formed the basis of a preliminary injunction issued on July 2, 2018 in the U.S. District Court for the District of Columbia. The judge in Damus v. Nielsen ordered five ICE field offices that were refusing 100% of parole requests, without any justification, to release asylum seekers after their initial interview, unless there was an individualized determination that the individual was a flight risk or posed a danger to the public.

Even absent a written DHS policy of separating families, a manifest pattern of conduct is sufficient for establishing operational policy and intent. Intent to separate may be inferred from a widespread operational policy and practice of family separation by means of detention. You certainly knew that risks of harm to children and families were a foreseeable result of DHS implementation of the “zero tolerance” policy, it was within your power to prevent separation, and you did nothing to prevent the harmful consequences which resulted.

Your agency’s failure to record separated family members has helped ensure that the severing of parents from children is long term and in some cases, permanent. In all cases, there was, and in some cases continues to be, a period where parents are unaware of their children’s whereabouts and are not able to contact them. Thus, your agency’s policy of forced separation may effectively result in temporary forced disappearances— an extremely grave human rights violation which should be avoided at all costs.[6] The Administration has deported at least 366 parents who are still not reunited their children.[7] There is credible evidence that these deportations took place under conditions of duress and deceit. In addition, the over 900 parents who have been deemed “ineligible” of reunification have had their parental rights terminated in a manner which has deprived them of meaningful access to due process.

Executive Order 13841 of June 20, 2018 directed the Attorney General to request a modification of the Flores settlement. PHR strongly condemned the Attorney General’s request as inconsistent with human rights standards. The Attorney General has requested that the time limits in the Flores settlement be removed so that children can be detained indefinitely and to remove the requirement that children and families be held in state-licensed facilities. Detaining children indefinitely is cruel and inhumane treatment, and detaining anyone in unlicensed facilities is inhumane. Flores is not a loop hole, but rather a minimum protection for vulnerable children. Using Congress to reverse the Flores decision because the courts have declared the Attorney General’s request to be unconstitutional is not a permanent fix, it is a cynical attempt to subvert Constitutional protections through backroom political deals.

Families seeking safe haven at our borders are not smugglers or nefarious actors. The government did not substantiate in any way that these parents were unfit parents or had committed any crimes apart from the administrative infraction of irregular border crossing. PHR evaluations of families over the past 25 years have demonstrated the vulnerability and the real trauma and persecution experience by those seeking refuge in the US.

Parents and children must be reunited. Your Department has broken the law and is under court injunction to provide remedies to the families that you have harmed, which you are so far failing to do. We are registering our concerns for the record, as medical professionals, and as concerned citizens who hold you accountable. As medical experts, we stand ready to provide expert guidance towards development of immigration and border enforcement policies and practice which respect health and human rights.

Respectfully,

Donna McKay

Executive Director

Physicians for Human Rights

256 West 38th Street

New York, NY 10018



[1] A/HRC/7/12, Report of the Special Rapporteur on the human rights of migrants, Jorge Bustamante, 25 February 2008

[2] Article 31(1) of the UN Refugee Convention, whose 1967 Protocol is ratified by the United States, “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

[3] A/HRC/17/33, Report of the Special Rapporteur on the human rights of migrants, Jorge Bustamante, 21 March 2011.

[4] Refugee Act of 1980, Pub. L. No. 96-212, § 208, 94 Stat. 102 (1980), codified at 8 USC § 1101.

[5] 2009 Immigration and Customs Enforcement (ICE) Directive on Parole of Arriving Aliens Found to Have a Credible Fear of Torture or Persecution.

[6] A/HRC/36/39/Add.2, Report of the Working Group on Enforced or Involuntary Disappearances on enforced disappearances in the context of migration, 28 July 2017

[7] https://www.pbs.org/newshour/nation/24-migrant-children-under-age-5-remain-separated-from-their-parents-new-court-filing-says


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