By Raquel Gonzalez-Padron
Background
Immigration has made the United States the diverse country it is and has helped to establish its economic preponderance in the world.[1] One reason for the influx of immigration to the United States has been the perception that the U.S. is a beacon for those seeking safe haven, taking in “[the] tired, [the] poor, [and the] huddled masses yearning to breathe free.”[2] However, the Trump Administration is issuing big cuts on the number of immigrants allowed in, threatening not only those desperate to build a better life for themselves and their families,[3] but also the U.S. economy as a whole.[4]
Frequently, immigrants travel to the United States through the United States’ Southern border seeking the legal protections offered to those fleeing persecution in their native countries. A typical immigrant’s travel through the Southern border looks like this: travelers walk long distances on uneven grounds and cross rivers without basic supplies.[5] On top of that, they are vulnerable to Mexican cartels’ criminal practices, including kidnapping, rape, sexual exploitation, and other crimes.[6] If travelers successfully cross the border, which sometimes they do not, they may be captured and detained by U.S. border control. Once in detention, immigrants also face inhumane treatment.[7]
Contrary to what the Trump Administration’s immigration policies purport to accomplish, the United States has obligations under international[8] and domestic law[9] towards refugees. Under 8 U.S.C. § 1101(a)(42), which incorporates to domestic law the definition of refugee provided under Article 1 of the Protocol Relating to the Status of Refugees,[10] a refugee includes a person that being outside of his country of citizenship or habitual residence is unable or unwilling to return to such place “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[11] Additionally, under the Protocol Relating to the Status of Refugees, to which the United States acceded on November 1, 1968,[12] and which incorporated Articles 2–34 of the Convention Relating to the Status of Refugees,[13] the United States has an international obligation to refrain from imposing penalties on refugees that unlawfully entered this country based on the nature of such an entry.[14] Among other protections provided in these international instruments is that the state parties refrain from returning refugees to the countries where their life and liberty are threatened as established under Article 33 of the Convention.[15]
Because there is a massive number of immigrants asking for asylum in the United States, there is a backlog in immigration proceedings and many face long wait times.[16] According to the American Immigration Council, there were more than 318,000 pending affirmative asylum cases with an average waiting time of 1,000 days as of March 2018.[17]
A central issue stemming from the U.S. immigration system is the treatment that families––and especially young children––receive while seeking asylum in the United States. As of June 2018, at least 2,000 children had been separated from their parents after crossing the border between Mexico and the United States to ask for asylum.[18] There have even been reports about federal officials that snatched babies from their mothers while the babies were breastfed at a detention center.[19] Moreover, federal agents failed to properly track which children belonged to each parent after separating families.[20] The lack of proper record-keeping backfired after a federal judge ordered family reunification, but the government officials were unable to match children to their parents.[21] The dire conditions that the government imposes on children after separating them from their parents has prompted litigation.[22]
A.I.I.L. v. Sessions: A Class Action on Behalf of the Separated Families
On October 3, 2019 the American Civil Liberties Union (“ACLU”) filed a federal lawsuit in the District of Arizona against government officials, this lawsuit is A.I.I.L. v. Sessions.[23] Central American families that were separated for up to sixteen months and whose children suffered the dreadful consequences of separation joined their claims in a class action complaint against, among others, former Attorney General Jeff Sessions.[24] The Plaintiffs alleged various torts violations against executive officials and that those officials allegedly violated:
“[T]he Fourth Amendment (unreasonable seizure of children); the Fifth Amendment Due Process Clause (fundamental right to family integrity; right to a hearing; right to adequate health care); Equal Protection (prohibiting discrimination on the basis of race, ethnicity, or national origin); and 28 U.S.C. §§ 1985 and 1986 (prohibiting conspiracy to violate civil and constitutional rights).”[25]
The separated families were left without any means to address the separation, which sometimes resulted in traumatic emotional responses.[26] Some parents contemplated or attempted suicide, while one of them took his life after being separated from his child.[27] The complaint also indicates that family separation causes deep trauma in both parents and children.[28]
For example, Ana and her two children Jaime and Mateo aged eight and seven years–old respectively, are among the named Plaintiffs in this case. [29] After being separated, the children started to present signs of trauma.[30] Mateo suffers separation anxiety and cannot bathe or sleep on his own.[31] His brother presents anger outbursts.[32]
Another story comes from Lorena and her fifteen-year-old daughter, Karina, who are also named Plaintiffs in A.I.I.L. v. Sessions.[33] Lorena, the mother, now suffers from insomnia, dizzy spells, lack of appetite, and hair loss.[34] She was manipulated into signing an approval for her removal through misrepresentations and coercion from government officials who indicated that asylum was no longer available for her and that accepting removal was the only way to reunite with her daughter.[35] Karina now suffers anxiety and depression; she is also suspicious of people.[36] Karina has considered suicide after the separation.[37]
In another example, Jorge and his daughter Diana, aged eight, were separated after entering the United States to seek asylum.[38] Jorge suffered grave physical complications and despair during his stay in detention.[39] However, he was more severely hit by the lack of emotional reaction his daughter showed when they were reunited because she had become attached to one of her social workers.[40] Now, Diana suffers from separation anxiety.[41]
The consequences of family separation are deep and widespread as Jairo and his five-year-old daughter Beatriz, who fled Guatemala, can attest.[42] She was only three years old when she fled her country.[43] Her father’s health condition significantly deteriorated in various ways, including him developing pneumonia that may have been the result of stress produced by the separation.[44] Jairo noticed Beatriz had a scar on her back and bruises on her legs, and when asked about it she told him she was hit with a belt.[45] The most notable result of their six months of separation is that Beatriz lost most of her ability to communicate in Mam, a Mayan language.[46] After returning to Guatemala, she cannot communicate effectively with her mother who only speaks Mam.[47]
As a final example, Jacinto’s son was taken away from him while one of the officers stated that the child now belonged to President Trump.[48] Seven-year-old Andrés, was placed in a foster home and asked to call his caregivers “mom” and “dad.”[49] Jacinto was coerced into signing his removal.[50] Nearly a year later, they were reunited when Jacinto returned to the United States.[51] This family still suffers trauma because of their separation.[52]
In general, these asylum seekers suffered mockery and mistreatment from the officers at the facilities where they were detained. Some examples include receiving insults based on their nationality,[53] not being offered adequate medical treatment and basic supplies such as water and healthy meals,[54] being subjected to humiliation by having private parts exposed after a garment broke,[55] maintaining them under unhygienic conditions,[56] suffering physical harm,[57] being accused of using their children to get immigration benefits,[58] witnessing violence against other detainees and fearing the same violent tactics would be used against them,[59] among other deplorable practices.
All of these stories reflect the hardships that the United States has imposed on families seeking asylum; those who have fled their countries and who are unwilling to return because they fear persecution in their native lands. However, contrary the obligations the United States has in the international community, these immigrants have not been granted the benefits they seek. Instead, they have been subjected to detention and family separation as a penalty imposed for entering the country unlawfully. Moreover, some were sent back to countries, where they claim their lives are in danger, without regard to the United States international and domestic obligations.
Through A.I.I.L. v. Sessions Plaintiffs ask the District
Court an award of compensatory and punitive damages, the establishment of a
recovery fund for the health care expenses of the class members, an award of
pre and post-judgment interest, attorney’s fees, and such relief as the court
deems just and equitable.[60]
The District of Arizona’s decision could
signal the judicial branch’s position with respect to the current tension
between the United States’ obligations and immigration practices.
[1] See Austan Goolsbee, Sharp Cuts in Immigration Threaten U.S. Economy and Innovation¸ N.Y. Times (Oct. 11, 2019), https://www.nytimes.com/2019/10/11/business/immigration-cuts-economy.html.
[2] See Emma Lazarus, The New Colossus, Poetry Found., https://www.poetryfoundation.org/poems/46550/the-new-colossus (last visited Oct. 26, 2019).
[3] See Robert Verbruggen, Did Trump Just Drastically Cut Legal Immigration?¸ Nat’l Rev.: Corner (Oct. 11, 2019, 1:48 PM), https://www.nationalreview.com/corner/did-trump-just-drastically-cut-legal-immigration/.
[4] Goolsbee, supra note 1.
[5] See Kevin Sieff, When They Filed Their Asylum Claim, They Were Told to Wait in Mexico. There, They Say, They Were Kidnapped¸ Wash. Post (Aug. 10, 2019, 8:00 AM), https://www.washingtonpost.com/world/the_americas/when-they-filed-their-asylum-claim-they-were-told-to-wait-in-mexico-there-they-say-they-were-kidnapped/2019/08/09/6133c2d6-b95f-11e9-8e83-4e6687e99814_story.html; Patrick J. McDonnell, Pastor’s Kidnapping Underscores Threat to Migrants Returned to Mexican Border Towns¸ L.A. Times (Sept. 2, 2019, 4:00 AM), https://www.latimes.com/world-nation/story/2019-09-01/kidnapping-of-pastor-in-mexican-border-town-dramatizes-threats-to-migrants; Sonia Osorio, María Luisa Paúl Rangel & Mario J. Pentón, More Venezuelans Are Making Their Way to Mexico Border to Try to Get into the U.S.¸ Miami Herald (Aug. 20, 2019, 12:00 AM), https://www.miamiherald.com/news/nation-world/world/americas/venezuela/article234175802.html.
[6] See Sieff, supra note 5; McDonnell, supra note 5; Osorio, Paúl Rangel & Pentón, supra note 5.
[7] David Bier, Are CBP’s Filthy and Inhumane Immigrant Detention Camps Necessary?, Cato Inst.: Cato at Liberty (July 3, 2019, 03:01 PM), https://www.cato.org/blog/are-cbps-filthy-inhumane-immigrant-detention-camps-necessary
[8] See e.g. United Nations Protocol Relating to the Status of Refugees, art. 1–34, Dec. 16, 1966, 8 U.S.C. § 1101(a)(42).
[9] See e.g. 8 U.S.C. § 1101(a)(42).
[10] United Nations Protocol Relating to the Status of Refugees, art. 1, Dec. 16, 1966, 8 U.S.C. § 1101(a)(42).
[11] Id.
[12] United Nations High Commissioner for Refugees, States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, https://www.unhcr.org/en-us/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.pdf (last updated Apr., 2015).
[13] United Nations Protocol Relating to the Status of Refugees, art. 1–34, Dec. 16, 1966, 8 U.S.C. § 1101(a)(42).
[14] United Nations Convention Relating to the Status of Refugees, art. 31, July 28, 1951.
[15] Id. at art. 33.
[16] American Immigration Council, Asylum in the United States, 4 2018.
[17] Id.
[18] See Tal Kopan DHS: 2,000 Children Separated from Parents at Border¸ CNN (June 16, 2018, 2:44 AM), https://www.cnn.com/2018/06/15/politics/dhs-family-separation-numbers/index.html
[19] See Ed Lavandera, Jason Morris & Darran Simon, She Says Federal Officials Took Her Daughter While She Breastfed the Child in a Detention Center¸ CNN (June 14, 2018, 9:26 AM), https://www.cnn.com/2018/06/12/us/immigration-separated-children-southern-border/index.html.
[20] ACLU, A.I.I.L. v. Sessions, (Oct. 3, 2019), https://www.aclu.org/cases/aiil-v-sessions (last visited Oct. 26, 2019).
[21] Id.
[22] Id.
[23] A.I.I.L. v. Sessions., No. 4:19-cv-00481-JAS, 2019 WL 4889146 (D. Ariz. Oct. 03, 2019); ACLU, New Lawsuit Seeks Damages for Traumatized Children and Parents Torn Apart by Family Separations, (Oct. 3, 2019), https://www.aclu.org/press-releases/new-lawsuit-seeks-damages-traumatized-children-and-parents-torn-apart-family.
[24] Class Action Complaint Jury Trial Demanded, at 5–11, A.I.I.L. v. Sessions., No. 4:19-cv-00481-JAS, 2019 WL 4889146 (D. Ariz. Oct. 03, 2019).
[25] Id. at 5.
[26] Id. at 2.
[27] Id.
[28] Id. at 4.
[29] Id. at 1.
[30] Id. at 18.
[31] Id.
[32] Id.
[33] Id. at 1.
[34] Id. at 20.
[35] Id. at 20–21.
[36] Id. at 21.
[37] Id. at 22.
[38] Id.
[39] Id. at 23.
[40]Id.
[41] Id.
[42] Id. at 24.
[43] Id.
[44] Id. at 25.
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Id. at 27.
[50] Id.
[51] Id.
[52] Id.
[53] Id. at 17, 19.
[54] Id. at 15, 19, 23–24.
[55] Id. at 15–16
[56] Id. at 19, 22.
[57] Id. at 20.
[58] Id. at 24.
[59] Id.
[60] Id. at 76.
