U.S. Government Still Violating Flores Ruling and International Obligations to Protect Refugees

In the United States, asylum seekers and other migrants are entitled to a broad range of protections under international and domestic law, yet these rights are routinely trampled upon. The gap between rights and reality has widened as the government treats migrants as potential security threats. In particular, the practice of incarcerating Central American mothers and children in detention facilities upon arrival stands in direct contrast to our international legal obligations.

In spite of human rights law’s prohibition on immigration detention for deterrence purposes, the United States recently undertook wide-scale expansion of family detention, and constructed detention facilities to send a message to families who might seek asylum in the United States.

Article 9 of the International Covenant on Civil and Political Rights (ICCPR)—which the U.S. has signed and ratified—prohibits “arbitrary” arrest and detention of migrants. A detention policy based on deterrence precludes the fair review of individual cases, as called for by the ICCPR and the 1951 Convention relating to the Status of Refugees and its Protocol, to which the United States is also a party. UNHCR’s guidelines say that “detention that is imposed in order to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is inconsistent with international norms.” The detention of children to deter others, especially given the negative psychosocial and physical impacts of detention on children, is unacceptable.

The recent surge in the government’s family detention policies and practices occurs in the context of the Flores v. Meese lawsuit and settlement agreement—in force now for nearly 20 years. The Flores litigation began in 1985 in response to the government’s policy of detaining unaccompanied migrant children. A 1997 Settlement Agreement, which applied to all minors in immigration detention, set national standards regarding detention, release, and treatment of children. Among other provisions, it required that children be released to an available adult or, in the absence of an available adult, held in the least restrictive setting appropriate to their age in facilities officially licensed for the care of dependent minors.

In February 2015, recognizing that Immigration and Custom Enforcement’s family and child detention practices are in violation of the Settlement, the Flores team brought a motion to enforce it. Judge Dolly Gee (C.D. Cal.) issued an order in favor of plaintiffs on July 24, 2015, giving the government until October 23, 2015 to comply. The government filed a Notice of Appeal to the Ninth Circuit on September 18, 2015, and litigation is ongoing.

With the October 23rd deadline passed and the government still detaining arriving mothers and children, Human Rights First continues to work with the Flores team and other advocates to ensure that Department of Homeland Security brings its practices into line with both the Settlement Agreement and its international human rights law obligations. Even short periods of detention and family separation can harm the mental and physical health of children and their parents.

The U.S. policy of detaining to deter violates international law. The government should end it.


Published on November 23, 2015


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