Executive Summary
A Child
Rights Crisis
Policy debates rage over what has been termed a humanitarian
crisis, a human rights crisis, or a national emergency at the U.S.-Mexico
border. What is clear is that it is a child rights crisis. Unaccompanied
children, adolescents, and young families have fled in increasing numbers from
violence in the “Northern Triangle” countries of Central America – El Salvador,
Guatemala, and Honduras – and have been met at the U.S. border with harsh and
punitive policies which violate their rights and compound existing trauma,
thereby threatening the health and well-being of thousands. These policies are
justified in the name of deterrence.[1]
However, if persecution and violence are the primary factors influencing
migration, harsh border enforcement will not serve as an effective deterrent
and will only cause more harm to an already traumatized population.[2]
Though high levels of child migration have captured the
national attention, there has been comparatively little medical research in the
United States about child asylum seekers’ trauma experiences and resulting
negative health outcomes. However, the limited number of studies of immigrant
and refugee children who have resettled in developed countries have identified
a high rate of trauma exposure and high rates of depression, post-traumatic
stress disorder, chronic pain, musculoskeletal injuries, scars, and
neuro-cognitive problems.[3] The aim of this study is to provide the first
detailed case series of recent child and adolescent asylum seekers in the
United States.
This report communicates the findings from more than 180 physical and psychological evaluations of children seeking asylum in the United States. The evaluations were conducted by members of the Physicians for Human Rights (PHR) Asylum Network between January 2014 and April 2018 and were analyzed by medical school faculty and students from Weill Cornell Center for Human Rights. The vast majority of the children evaluated were from the Northern Triangle countries (89 percent), of El Salvador, Guatemala, and Honduras. Children reported that they survived direct physical violence (78 percent) and sexual violence (18 percent), threats of violence or death (71 percent), and witnessing acts of violence (59 percent) in their home countries. This violence was most often gang-related (60 percent), but a significant portion of children (47 percent) faced violence perpetrated by family members. PHR’s clinicians documented negative physical aftereffects of this abuse: from musculoskeletal, pelvic, and dermatologic trauma to severe head injuries. 76 percent of children were suspected to have or diagnosed with at least one major mental health issue, most commonly post-traumatic stress disorder (64 percent), major depressive disorder (40 percent), and anxiety disorder (19 percent). Furthermore, children reported that government authorities in their home countries did not effectively prevent, investigate, prosecute, or punish crimes against children.
These findings document that children arriving in the United States are fleeing severe forms of harm which may amount to persecution if their home government is unable or unwilling to control the perpetrators, and if their persecution is based on their race, religion, nationality, political opinion, or membership in a particular social group. Asylum jurisprudence in the United States and internationally recognizes that gang and domestic violence may amount to persecution. In accordance with international and U.S. law, individuals with a credible fear of persecution arriving at the U.S. border have the legal right to apply for asylum. International and U.S. law also prohibit the return of any individual to a country where they face persecution, torture, ill-treatment or other serious human rights violations, with children deserving heightened consideration.[4] Child asylum seekers are also entitled to additional protections under international and U.S. law, including accommodations in the asylum process which take into account their level of development and maturity and their specific health and mental health needs. The right of children to be heard and to remain with their parents, as long as it is in their best interest, is recognized as a civil and political right.
The findings in this report and the relevant legal standards
demand an effective and humane policy response both in countries of origin, to
prevent the violation of child rights, and in the United States, to fairly
recognize claims of persecution and end practices that expose these young
migrants to further trauma. PHR calls on countries of origin to urgently direct
resources to end impunity and protect children. As a priority, governments must
ensure adequate resources to investigate, prosecute, and punish violent acts
against children, and establish or maintain independent investigatory bodies to
address corruption and impunity. Governments must also ensure adequate
resources for violence prevention and response, such as specialized police
units, education initiatives, and specialized assistance for child survivors.
Given the extreme levels of violence experienced by the children from the
Northern Triangle evaluated by PHR, the U.S. administration must safeguard
access to asylum in the United States, in order to meet immediate needs for
protection and to maintain vital aid to Northern Triangle countries for
addressing violence and instability in the long term. Since children’s health
has been affected by repeated trauma exposure, the administration should ensure
that all children receive pediatric medical screening upon arrival at custody
and uphold child protection standards in custody, prioritizing least
restrictive settings and increasing use of alternatives to detention.
Children arriving in the United States are fleeing severe forms of harm.
Background
Rising Numbers of Children and Families Seek Asylum in the United
States
Since 2010, U.S. Border Patrol apprehensions of border crossers
in the southwest sector of the U.S. border have hovered between 300,000 and
450,000 per year, much lower than in the past three decades, when apprehensions
frequently exceeded one million.[5]
However, the demographics of the border-crossing population changed in 2014.
The number of children and adolescents arriving at the U.S. border rose
dramatically, both in numeric terms and as a percentage of the overall number
of border crossers, a wave of displacement known as “the surge” and now called
by some a “national emergency.” The number of unaccompanied children (zero to
17 years old) apprehended increased from 16,000 in FY2011 to 50,000 in FY2018
(from five percent to 13 percent of total apprehensions),[6]
and the number of families rose from 15,000 in FY2013 to 107,000 in FY2018
(from 3.5 percent to 26 percent of total apprehensions).[7]
The number of teenagers crossing alone peaked in 2014 but is still high, while
the number of families with younger children has remained consistently high for
several years. Combined, these groups comprise almost 40 percent of
apprehensions in FY2017 and FY2018.
Basic trends in U.S. asylum statistics indicate that the
demographic increase in the number of children and families seeking asylum is
due to people fleeing high levels of violence in Central America, rather than
labor migration. The majority of individuals that Border Patrol has apprehended
at the border are from the Northern Triangle countries, which have some of the
highest rates of homicide in the world, resulting in epidemic levels of
domestic, gang, and gender-based violence.[8] The number of applications
for asylum in the United States increased more than seven-fold from FY2009 to
FY2013, and 70 percent of that increase was due to asylum applications from the
Northern Triangle.[9]
From 2012 to 2017, affirmative asylum applications from individuals from
Central American countries rose again from 3,523 to 31,066, an almost
eight-fold increase, with unaccompanied children comprising 66 percent of
applications in 2015 and 56 percent in 2016 and 2017.[10]
Asylum grant rates have also increased, which speaks to the validity of rising
requests for international protection: 2010 to 2016 saw a 96 percent increase
in the percentage of asylum seekers from the Northern Triangle who were granted
protection.[11]
Family Separation and Child Detention Increase Health Risks
As early as March 2017, the U.S. government began physically
separating thousands of children from their parents at the border, detaining
them hundreds or thousands of miles apart, without tracking them or planning
for their reunification.[12]
This practice was implemented in spite of medical evidence that demonstrated
how separation from parents increases the risk of post-traumatic stress
disorder and depressive disorders in children, resulting in a negative impact
on the cognitive and emotional functioning which can continue into adulthood.[13]
The Trafficking Victims Reauthorization Act has substantial protections to
ensure that children are screened and separated from traffickers posing as
family members at the border, and, in the class action lawsuit won on behalf of
the separated families, the government did not provide evidence of a security
risk to the children to justify the separations.[14]
Following a court injunction prohibiting further family separation,[15]
the administration sought other punitive measures to deter children and
families from seeking safety in the United States, as part of a return to the
Consequence Delivery System known as the Zero Tolerance policy.[16]
These measures included seeking to authorize indefinite detention of children
in unlicensed facilities.[17]
The administration detained thousands of children in a massive tent city[18]
and targeted potential sponsors – to whom children could be released – for enforcement
action, which resulted in a significant increase in the population and duration
of child detention.[19]
Medical experts warned that the overall rise in numbers of
detained children was vastly increasing the risk of serious health harm due to
the dangerously inadequate conditions of confinement.[20]
In December 2018, two children died in U.S. Department of Homeland Security
(DHS) Customs and Border Protection (CBP) custody[21]
and in May 2019, a 16 year old died in CBP custody and a two year old died, released
on his own recognizance from CBP detention.[22]
However, in February 2019, DHS was still holding an increased number of infants
in detention, some for longer than the maximum 20 days stipulated in a 1997
court ruling, the Flores settlement
agreement.[23]
Research has shown that alternatives to detention are cost effective, humane,
and contribute to improved health outcomes.[24]
However, the Trump administration shut down the Family Case Management Program,
which enabled families with children to remain in the community while their
immigration proceedings were pending, with compliance rates of over 99 percent
of families attending immigration court hearings and appointments.[25]
Recent Asylum Law Developments
Threaten Access to Asylum
Despite indications that violence in Central America is a
driving factor in the rise of asylum seekers arriving at the border,[26]
the U.S. government has increasingly resorted to policies and practices which
limit the right to seek asylum at all, such as “metering” at ports of entry,
which requires asylum seekers to wait in a queue for weeks or months before
being admitted for inspection.[27]
The U.S. government has also implemented an unprecedented turn-back policy by
which asylum seekers must wait in Mexico while their asylum case is considered,
which puts them in danger of persecution in Mexico and limits their access to
legal counsel for their asylum case.[28]
Given the levels of violence reported by children in this study, these
restrictive policies unacceptably block timely access to asylum procedures and
put children in danger.[29]
Emerging displacement trends indicate that gang violence and
domestic violence are among the most prevalent forms of persecution reported by
asylum seekers in the United States, including children arriving from Central
America.[30]
Since gang violence and domestic violence can amount to persecution by
non-state actors which the government is unable or unwilling to control,
extensive domestic and international jurisprudence recognize the validity of
asylum claims based on domestic violence and gang violence.[31]
In March 2018, then Attorney General Sessions questioned whether domestic and
gang violence survivors may be considered members of a “particular social
group,” an essential element in an asylum claim, seeking to disqualify these
individuals from claiming a credible fear of persecution.[32]
However, Sessions’ decision was reversed in December 2018, when the U.S.
District Court for the District of Columbia issued a permanent injunction,
finding that the Attorney General’s policy violated the Immigration and
Nationality Act.[33]
This ruling reaffirmed that, in line with decades of domestic legal precedent,
domestic violence and gang violence survivors have the right to apply for
asylum if they express a credible fear of persecution.
Methodology
PHR Asylum Evaluations and the Istanbul Protocol
Members of the Physicians for Human Rights (PHR) Asylum
Network collectively conduct approximately 600 forensic evaluations annually
for asylum seekers involved in U.S. immigration proceedings.[34]
These medical-legal affidavits are requested by attorneys who identify a need
to document sequelae (aftereffects) that their clients exhibit as a result of
physical and psychological trauma from torture or persecution. The declarations
are conducted in accordance with the principles of the Istanbul Protocol,[35]
the international standard endorsed by the United Nations to assess,
investigate, and report alleged instances of torture and other cruel, inhuman,
and degrading treatment. They are submitted to the Department of Homeland
Security’s United States Citizenship and Immigration Services and the
Department of Justice’s Executive Office of Immigration Review by PHR Asylum
Network members to highlight the degree of consistency between the client’s
account of persecution and their physical signs of injuries and psychological
symptoms.[36]
Although these evaluations alone cannot determine asylum claims, they document
severe health and mental health harms experienced by the client, in order to
assess whether or not the severity threshold for persecution has been reached.
Other essential elements needed for the asylum case, such as determining
discriminatory intent of persecutors or failure of the state to control
persecutors, are not directly addressed in these affidavits. At times,
collateral information in the affidavits may be present related to those
elements of the asylum criteria.
Data collection and analysis
In preparation for the current study, PHR Asylum Program staff
ran a search in the program’s case management database for the following
inclusion criteria: juvenile cases with individuals age 18 or under that received
forensic evaluations from PHR Asylum Network members from January 2014-April
2018 and in which full consent for the use of de-identified data for research
and advocacy was obtained. At the time of the study’s conceptualization, 368
evaluations of asylum seekers under the age of 18 had been conducted. However,
the program had only collected 18 completed affidavits. Program staff contacted the clinicians responsible for the
remaining 350 completed affidavits to solicit redacted copies, finally reaching
183 affidavits in total. This sampling method excluded cases with individuals
aged 19 years or older at the time of evaluation, cases that had incomplete or
missing medical-legal affidavits, and cases in which consent was not obtained
for the use of de-identified data. PHR staff redacted the corresponding
affidavits of all cases that met the inclusion criteria for identifying
personal information and stored them on PHR’s password-protected database.
The Cornell Institutional Review Board reviewed the research
plan and approved compliance with Title 45 CRF part 46 provisions for
protection of human subjects.
The co-investigators jointly developed a coding tool after
reading the affidavits. Sources for the coding categories included United
Nations protection assessments and validated clinical assessment tools, such as
the Hopkins Symptom Checklist and PTSD Civilian Checklist. PHR staff carefully
read through the affidavits to ensure that all were fully de-identified and
stripped of their case numbers, with new study numbers assigned to each
affidavit. Weill Cornell Center for Human Rights faculty and students coded the
data using a standardized instrument capturing basic demographic information,
trauma exposure history, vulnerability factors, and medical and mental health
outcomes. They then entered data into a secure database using Qualtrics. The
investigators also conducted a qualitative analysis of summarized trauma
narrative notes entered into the coding tool using a quasi-grounded theory
approach to describe emergent themes within the data and identify
representative narratives and quotes. The members of the research team
independently analyzed each trauma narrative in the affidavit, selecting direct
passages and quotes, coding key concepts, categories, and themes/sub-themes
through a process of open, axial, and selective coding. Members of the research
team grouped text supporting each component and reviewed the initial individual
coding results. Through an iterative and consensus-based process, the research
team revised themes and sub-themes.
Limitations
This data was not collected uniformly for the purpose of
research, because each individual evaluation was developed for use in the
specific legal case of the client.
Due to PHR’s program modality, the study considered only child
and adolescent asylum seekers with legal representation: it does not capture
the experiences of children applying for asylum without an attorney (Nineteen percent
of children whose cases began in FY2018 and 23 percent of children whose cases
began in FY2019 have no legal representation in deportation proceedings[37]).
There were very few detained child and adolescent asylum seekers included in
the data set, which means that the findings do not focus on compounded and exacerbated
trauma experienced by young detainees.
Finally, although many crossed the border as unaccompanied
minors, most of the children and adolescents were reunited with family members
prior to the evaluation. Thus, further study is needed regarding the specific
experiences of unaccompanied children who do not join family members in the
United States, as well as children crossing the border with their families.
Overall, generalizability is an issue with any type of research. Both qualitative and quantitative measures have value in terms of characterizing trauma exposure and health outcomes, just as they have their limitations. The sample in this study is not a representative sample of all child and adolescent asylum seekers in the United States. However, when considered with other available evidence (known to be limited by a lack of appropriate intake processes, health screening, government transparency, and overall inaccessibility of this population), this data seems to support trends of high rates of violence and trauma experienced by children fleeing the home countries represented in this samples.
Findings
Introduction
The following accounts of children are taken from forensic
evaluations completed by Physicians for Human Rights (PHR) clinicians who are
experts in documenting trauma and persecution. For the purpose of accuracy,
quotations are taken directly from the clinicians’ expert affidavits. Direct
quotations from children are only included if present in the clinician’s evaluation.
Evaluations for 183 individuals were included in this analysis, including 114 male and 69 female asylum applicants, with an average age of 15 at the time of evaluation. The vast majority – 89 percent – were from the Northern Triangle countries of El Salvador (36 percent), Guatemala (19 percent), and Honduras (34 percent). Due to the evaluation’s focus on pre-migration trauma, the child’s experience in crossing the border is not mentioned in 50.5 percent of cases. However, out of the 49.5 percent of cases in this data set that mention the border crossing experience, 67 percent of those children crossed the U.S. border as unaccompanied children.[38]
The analysis which follows describes children’s experiences of
violence and harm through the major analytical categories presented by the
data: gang violence, sexual violence (perpetrated by both gang members and
family members), and domestic violence, which can become implicated in gang
dynamics. These three categories overlap considerably but are distinguished in
order to identify descriptive characteristics of each. The children’s accounts
also demonstrate repeated failure by states to protect children from harm and
to prosecute and punish perpetrators of crimes against children. Separation
from parents in the country of origin due to migration seems to increase
children’s risk of abuse. Though the study primarily focuses on the abuses
experienced in the children’s home countries that motivated their flight, some
children also mentioned undergoing harm during transit and as a result of U.S.
border and immigration enforcement, which exacerbated and compounded the harms
they had already experienced. Finally, the study includes an analysis of the
physical and psychological consequences or manifestations of trauma, as well as
resilience factors in children. The findings are followed by an overview of the
legal framework and policy recommendations, which suggest approaches to
prevention and accountability for the human rights abuses described by the
children.
Children Suffered Multidimensional, Recurrent, and Sustained Trauma
Complex trauma, as compared to acute or chronic trauma,
involves exposure to multiple severe and pervasive events which have negative
long-term effects.[39]
The children evaluated experienced multiple forms of both direct and indirect
trauma. A significant majority – 78 percent – suffered direct physical
violence, and 18 percent were subjected to sexual violence. Nearly three
quarters (71 percent) were threatened with violence or death (71 percent), and
59 percent witnessed acts of violence. Most of the violence the children
experienced was gang-related (60 percent), but a significant portion of
children (47 percent) faced violence within the home or perpetrated by family
members, which prompted them to flee alone or accompanied by other family
members. Additionally, children were vulnerable to other forms of deprivation
and harm, including neglect, lack of access to primary education, homelessness,
and child labor.
All of these events constitute adverse childhood experiences,
which have been strongly linked to a wide range of lifelong negative physical
and mental health outcomes.[40]
The health impacts of these experiences were further mediated by factors such
as poverty and parental separation or death.
A lack of effective intervention from government authorities
in their home countries to prevent, investigate, prosecute, and punish crimes
against children was a major theme of the children’s stories. The report
describes the leading categories of trauma exposure, other vulnerability
factors, and negative health consequences experienced by this group of
children.
The statistics in this report show that these children not
only experience high rates of trauma, but often are subjected to multiple forms
of trauma by multiple perpetrators. These results add additional context
for the severe abuse described by the qualitative findings.
Gang Violence Terrorizes Communities
“I saw the four of them in their caskets, I never imagined to see them with shots all over their faces. I thought they were shot only once but their whole faces were shot with bullets.”
A teenage boy recalling the image of his murdered brother, aunt, uncle and cousin
A majority of children and adolescents assessed were victims
of violence at the hands of gang members (60 percent) or forced conscription
into gangs (24 percent). Gang members perpetrated repeated physical assault and
beatings, sometimes aggravated assault with weapons including sticks, belts,
bats, knives, machetes, and firearms, resulting in serious injuries. One young
woman “reports having been beaten all over her body including her head, being
dragged through the woods, being tied to her friends, blindfolded and raped by
multiple people.” Another young boy describes a series of repeated attacks from
gang members, including an attack with a machete “leaving a deep wound on his
left knee,” being “cut with a knife,” a gang member “forcefully pulling his
left arm behind his back and pushed him to the ground…his shoulder became
painful and swollen, purple and painful to move” from a traumatic shoulder
dislocation, cigarette burns to his arms, and repeated trauma from punches and
kicks to his body.
Additionally, children often witnessed brutal acts of violence
against their own families or members of their communities. Witnessing violence
is a traumatic event which results in serious negative mental health outcomes
for children.[41]
One teenage boy recalled the image of his brother, aunt, uncle, and cousin in
their caskets: “I saw the four of them in their caskets,
I never imagined to see them with shots all over their faces. I thought they
were shot only once but their whole faces were shot with bullets.”
Another boy described a memory “seared into [his] brain. At
16, he came upon a decapitated head whose face had been peeled off intact and
placed next to the head. This horrific sight caused nausea as well as a growing
and persistent sense of fear. This image often intruded into his nightmares.”
Gangs often used shocking tactics to incite fear, or as a warning to those
attempting to resist. One young woman described her brother-in-law’s brutal
murder: “His body had been discovered in the very location she was supposed to
deliver [his] children. His body was dismembered and had been put in several
different bags, his hands and feet were tied and he had been severely beaten….
She continued to receive threats for over a year after his murder.”
Children reported that the gangs forced them to choose between joining the gang and being murdered.
Children reported that the
gangs forced them to choose between joining the gang and being murdered. One boy refused to join the gang, so the gang members took him
into the woods and beat him on the head and body with their fists and with
rocks until he was unconscious. If children did join the gang, the coercion
continued with the demands of the gang. A 16-year-old described how he was
faced with an ultimatum to kill his uncle and anyone else in the uncle’s
household: “Kill them or you die.” When he found his uncle’s daughter and pregnant
wife in the home, “he knew that it would be wrong to kill those children or to
leave them without a father so he just could not do it. Instead he greeted the
girl and kissed her on her head and left. He went to his girlfriend’s home and
held his newborn son. Holding the boy in his arms, he knew he had to change
because the life he was living was not one in which he wanted to bring a
child.”
Children reported gang
members kidnapping them, holding them hostage, or enslaving them. One young girl explained
her terror after being kidnapped, “feeling like at any moment the gang would
come pick her up and kill her and her family. She described eating and sleeping
very little, waking up at night in a panic. She described being unable to close
her eyes, and breathing very quickly.” Another young girl who was kidnapped by a gang member
describes her brutal ordeal. Her
kidnapper “repeatedly raped, beat, and terrorized her over the course of the
next 3 years. He
forced her to collect money from people, allowed her to be raped and beaten by
other gang members, and threatened to kill members of her family if she ran
away. He made her pregnant
twice and at one point drugged her and tattooed his name on her back.”
[A] young girl … was kidnapped by a gang member [who] repeatedly raped, beat, and terrorized her over the course of the next three years. He forced her to collect money from people, allowed her to be raped and beaten by other gang members, and threatened to kill members of her family if she ran away.
The geographical reach of the gangs extended to private homes and community spaces, giving the feeling that nowhere was safe. One boy detailed his encounter in a grocery store during which a “man grabbed his hand and quickly cut the 5th digit of his left hand with a machete as ‘a warning,’ indicating that if he did not join the gang he would ultimately be killed.” Gangs also used social media to make threats and assert their sphere of influence. One boy reported that even in the United States, gang members on Facebook threaten to kill him if he ever returns to El Salvador. Since arriving in the United States, a girl continues to receive threats of physical harm on Facebook from gang members who wanted her to be their ‘girlfriend,’ saying they will look for her and find her if she returns.
Children Targeted for Sexual Violence
Almost 20 percent of the
children evaluated by PHR experts experienced brutal and repeated sexual
violence or exploitation, including rapes that resulted in adolescent pregnancy. Children described being kidnapped, exploited, and
trafficked for sex. One girl told the PHR clinician that she did not tell
her mother about the gang rape, telling her instead that she migrated to the
United States out of a desire to study, because she was worried about her
mother’s safety.
Much of the violence perpetrated by gang members was sexual in
nature, ranging from coercion to become the ‘girlfriend’ of a gang member, to
subjecting children to brutal group assaults. One young woman described her
experience being gang raped: “When she refused [to have sex with gang members],
multiple of the gang members raped her and told her they would hurt her mother
and father if she continued to refuse…. She recalls having a severe headache,
vaginal bleeding, and pelvic pain for approximately one week.”
Children reported sexual violence committed by family members. One girl described the devastating rape by her cousin as “he started to choke her and then pushed her onto a bed…. He pushed her arms back over her head and raped her. She states that she stopped fighting back at some point so he would stop hitting her.” A young boy described a time “when he was four or five, an uncle he was staying with, who he hardly knew, summoned him and his brother to join him in the shower and was made to touch his genitals under threat of killing his sister.” Another girl described sexual assault committed by her mother’s boyfriend, who groomed her for touching, nude photos, forcing her to perform oral sex, and finally vaginal penetration. “Even though she detested everything [he] made her do to and with him, [she] felt unable to say anything to anyone because [he] threatened to take her away from her family and said that he would force her to do things that she did not want to do. Her family was completely unaware of the daily sexual assault that was occurring while they were out of the home.”
These acts of sexual abuse and assault, especially when
experienced at such a young age, lead to lasting trauma, often manifested as
feelings of dissociation, impaired psychological development and self-image,
and social isolation. A 17-year-old girl described how her rape at age 13
affected her. She said, “I continued walking to school but I felt like it
wasn’t really me walking. I felt like it was someone else outside of my body. I
felt that everything was different, I didn’t ever want to be with the other
girls. I felt that they were little girls and I was not.”
Domestic Violence Normalized
Child abuse is so common that even when a beating resulted in an open cut that required many stitches, no one at the local health facility asked any questions about how the injury happened.
Nearly half of the children in this study (47 percent)
reported experiencing violence in the home or at the hands of family members.
Children often reported their parents as perpetrators of this abuse, as well as
other family members or caretakers including aunts, uncles, grandparents, or
older cousins. In addition to the acts of sexual violence described earlier,
children reported that family members attacked them physically and subjected
them to verbal and emotional abuse. The children evaluated by PHR fled their
abusers, either alone or with other family members.
Reporting violence and abuse was dangerous for children, as it
could anger their abusers. One girl reported her punishment after a diary
detailing her abuse was found: her grandfather burned her with molten pieces of
plastic, resulting in severe, painful burns and lasting scars on her legs. Due
to the prevalence of violence in some communities, abuse became normalized in
community structures. A 16-year-old girl reported that child
abuse is so common that even when a beating resulted in an open cut that
required many stitches, no one at the local health facility asked any questions
about how the injury happened. However, gang members in town knew about the
abuse that she was suffering and repeatedly offered to help her “take revenge.”
Gangs may perpetrate cycles of violence, as domestic abuse cases become gang-involved.
Gang members told a 16-year-old boy that he must kill his uncle because, since
everyone in the community knew that the uncle had abused him when he was a
child, not vindicating the act would make the gang look “weak.”
Domestic violence was also linked with homelessness, as some
children were forced to leave their homes by family members. One child reported squatting in an abandoned
house in a neighborhood with high gang activity after feeling unsafe in her
home, leaving her vulnerable to being targeted. “One night, when she was
staying alone at the house, a man from one of the gangs came by. There were no
locks on the door, and she was too frightened to move, so she just lay in her
bed, very still, hoping he wouldn’t find her. He found her in the bed, and he
raped her. Afterwards, he threatened her, saying that he would kill her.”
Abuse by caretakers is
deeply confusing for children, since, as authority figures, caretakers should
help children grasp normal behavior; abusive treatment prevents children from
properly interpreting the world around them. One boy explained that when his grandmother
beat him, “he would space out in a dissociative manner …; he would effectively
leave his body as though he were watching himself getting hit. He would wonder,
‘Am I bad?’ in an effort to make sense of the beatings…. He believes that if
he’s getting hit it must be because he is bad.”
Children were often punished severely for developmentally
normal acts, such as bedwetting or doing housework incorrectly. One girl
described how her father would check each night to see if she had wet the bed
and, if she had, he would violently pull her out of bed, take her outside, and
beat her with his hands, belt, and rubber sandals. Her mother and siblings
witnessed the abuse but felt too afraid to stop him. A boy described how he and
his brother were both forced to kneel for hours on spikes while their arms were
tied behind their backs and burned with a hot knife for not completing chores.
Abused and mistreated children also experienced deprivation
and neglect, often manifesting in food insecurity and hunger, homelessness,
disenrollment in school and lost access to education, and labor
exploitation. One child described living
with a physically and verbally abusive father who repeatedly attacked and
mistreated him and his siblings. “He continued to beat them with his hands,
feet, and belts. He also deprived them
of food, spending his money on alcohol, so they regularly showed up to other
family members’ homes for meals.” Another child described that his grandparents
“would hit [him] and yell at [him].
After being hit, [he] was often forced to gather wood and was not fed.”
Many children were forced to drop out of school due to lack of
safety in the community and at school, parental neglect, forced child labor,
and exploitation. One girl stopped attending school altogether for about a year
after a gang had threatened to tie her brother to a chair and make him watch
while she and her sister were raped and murdered. There were a lot of gang
members around the school and she felt watched. One 12-year-old boy reported that
he stopped attending school because his father forced him to work in corn
fields and care for livestock. He was repeatedly told that he was “worthless”
and hit with belts and cables. During this child’s forensic evaluation, the
evaluator observed that he became very quiet and stared at the floor. When asked if he was alright, he said, “Not
really, I am reliving the whole experience.”
States Fail to Protect Children
“I saw that one of my cousins had been shot in the stomach by the police. He was nine. After my cousin was taken to the hospital, [t]he police officer asked
me and my family where he was so he could finish him off.”
17-year-old boy from Honduras
Children articulated
a consistent failure of state protection. Although children may be less likely
than adults to report crimes to the authorities due to their less developed
understanding of government structures, children in this study repeatedly
described situations where government authorities actively abused children,
failed to effectively protect victims, did not investigate crimes, and did not
prosecute or punish perpetrators.
Direct Police Brutality Against Children
Some
children reported experiencing or witnessing direct police brutality against
children. One boy detailed his family’s experience with the local police,
recounting a nearby shooting: “We lived on one street and on the other street
we heard all the gun fire that was happening. I saw that one of my cousins had
been shot in the stomach by the police. He was nine. After my cousin was taken
to the hospital, [t]he police officer asked me and my family where he was so he
could finish him off.” Another was sexually assaulted. She was able to identify
her attacker and was assigned a detective, who she at first believed was
helping her. He told her that he was taking her to see a psychologist who could
“erase” everything that happened to her, but instead he took her to a hotel and
sexually assaulted her. In another case, after seeing the body of a murdered
taxi driver, one boy described his predicament: “The
police themselves were corrupt, offering no protection for the citizens but
rather engaged in violence and extortion themselves. [He] was both
terrified of the police and fearful of retaliation if he cooperated.”
Children
reported that some police officers committed or threatened violence in order to
extort bribes. The police either demanded money to file a report or robbed the
victim. In one case, “the police detained [a boy] on false charges for about
two hours. During this incident, the police beat him and stole his possessions
before releasing him to his mother.”
Gang Intimidation and Infiltration into the Police
A common pattern related to the failure of state protection is
gang intimidation of the police and gang infiltration into the police.
Reporting or being thought to have reported crimes to the police brings down
swift gang retaliation. One girl explained that “if people reported
gang-related crime to the police, they would be very slow to arrive at the
scene of the crime or to file reports. The police were scared of the gangs,
hence the gangs controlled most of what happened in the town.” One girl
realized that her boyfriend was involved in a gang when she found pistols
hidden in the house. When she confronted him, he threatened to kill her if she
told anyone. The girl told the PHR clinician that her boyfriend’s gang was
affiliated with the police and if she had tried to tell the police, they would
simply have informed her boyfriend, putting her in danger.
In a case of gang infiltration, a police officer accused a boy
of being a member of the MS-13 gang and hit and kicked him to force him to
admit to gang membership – then, the same police officer told the boy that he
(the police officer) was a member of the rival 18th Street gang. As the boy
walked home after the beating, members of the MS-13 gang physically assaulted
him, suspecting that he had spoken to the police officer about their
activities. The boy told the PHR clinician that he considered reporting the
police officer but decided not to because his family was afraid that they would
not be protected from reprisals. A girl reported that her family was targeted
after her stepfather told the police about seeing bodies dumped in the river;
in retaliation, gang members came to her home and raped her. Her family fled
the country shortly afterwards without reporting the assault, having understood
that the police were providing information to the gang. Another boy mentioned
that he never even approached the police after receiving death threats for
refusing to join a gang, since the police were known to collaborate with that
gang.
“The police themselves were corrupt, offering no protection for the citizens but rather engag[ing] in violence and extortion themselves.”
A boy recounting his dilemma after seeing a murdered taxi driver
Failure of Police to Respond Despite Knowledge of Crimes
In other cases, the children reported that the police failed
to take action, despite knowing about crimes committed against children. In one
case, some boys, including the client’s brother, were kidnapped, tortured, and
killed due to inter-gang violence. Despite knowing about the murders, the
police did not investigate or make efforts to protect other children; they
simply warned the client that he could be the gang’s next target.
One girl reported knowing from early childhood that the police
in her country never protected girls or women in her neighborhood – she knew
they would not come to the scene when crimes were committed and that they did
not enforce laws against gang violence. A brutal gang rape occurred at a soccer
game in her town, but the police, fearing the gang, did not investigate or make
any arrests. The girl remained indoors for weeks, saying, “I was terrorized
with fear that something could happen to me, that I would be the next victim.”
Said another girl, “The police are far away and in any
case do nothing to help. There is no one else in the town to call for help.” One
young girl’s sexual assault by her grandmother’s husband was videotaped by a
neighbor, who tried to use the video to blackmail her into sex. When she
refused, the neighbor circulated the video in the community, and she was
stigmatized and blamed by community members for the abuse; “It was generally
known and accepted as a matter of course that the police would do nothing about
cases such as hers.”
Even when child victims or their parents try to pursue legal
action to protect the children, the system is ineffective. An eight-year-old
girl explained the authorities’ reaction when her family reported that she had
been sexually assaulted: they refused to investigate and “even became angry
that they were ‘bothered’ about something like childhood sexual abuse.” Another
girl described a time when she tried to call the police for protection from her
abuser. The police came to the scene, but instead of helping her, they told her
to “take care of [her] family problem.” In one case, a daughter told her mother
that the mother’s boyfriend was sexually abusing her. Her mother believed her,
forced him to leave the house, and filed a police report; however, there was no
police investigation of the case or action against the abuser.
Without Parental Protection,
Children Face Greater Risks
Many children in this study were separated from their parents
in their home country as one or both parents either left for the United States
or were killed. Out of 183 children, 130 reported some form of parental
separation or death; in the remaining evaluations, that data was not collected.
Out of the 130 children reporting separation, 63 percent reported that at least
one parent was in the United States (usually the primary caretaker), 36.9 percent
reported that both parents were in the United States, and 16 percent reported
that their parents had died, usually killed by gangs.[42]
Results of parental separation included an increased susceptibility to further
trauma, neglect, and the burden of becoming a caregiver for younger siblings
and family members.
While parental separation can itself be traumatic, the
resulting lack of parental protection left children vulnerable to further
trauma perpetrated by extended family members or others in the local community.
For example, one victim of repeated sexual abuse pleaded with the perpetrator,
her cousin, and asked why she was being targeted; the cousin replied, “Because
there is no one here to protect you.” Another girl had been left under the care
of her grandfather, but he passed away when she was 13, whereupon other family
members repeatedly sold her as a prostitute.
One victim of repeated sexual abuse pleaded with the perpetrator, her cousin, and asked why she was being targeted; the cousin replied, “Because there is no one here to protect you.”
Parental absence left children at risk for neglect. One child
described his experience being shuttled between distant family members: “Over
the next three years, they did not have stable shelter, sometimes slept on the
streets, went hungry, did not regularly attend school, and faced the abuse by
family members, strangers, and gang members. He reports feeling ‘alone in the
world’ though also felt responsible for his younger brother.” In addition to
the lack of parental protection, these children were targeted due to the
remittances sent by the absent parent. One girl said that she “did not feel
safe and felt there was no one to protect her. The only thing she felt she
could do to escape abuse was to go to another family member’s house, but then
often the abuse continued.… ‘no one loved me’, she stated, ‘They didn’t care
about me, they just wanted the money my mom sent them for me.’”
Smugglers Harm Children in
Transit
Though the focus of the evaluations was pre-migration trauma
related to the asylum application, numerous children assessed in this study
described traumatic experiences while in transit to the United States. Many of
the vulnerabilities of the children in their home countries were exacerbated
during the journey.
Children report being abused, threatened, and assaulted by
smugglers or other migrants during their journey. One girl described her travel
alone toward the United States and detailed how a trafficker sexually
assaulted, kidnapped, and threatened to murder and dismember her: “One of the coyotes who had a gun, began to touch her
breasts and genitalia, and no one did anything, although others noticed.
‘You’re mine now. No one is going to help you,’ the coyote said to her.”
One boy was only seven years old when he traveled from
Guatemala to Mexico. In Mexico, the smugglers separated him from his mother and
told him to hide in a sewer. He was chased by police officers, with dogs, who
threw a kind of gas that made him cough and vomit. “He wasn’t expecting this
ordeal and wanted to go home. Later he was taken to a house where he cried for
his mother, fearing that she’d been detained. He was in several houses over the
course of one month and he reports being abused – his head was shaved; he was
hit on his back when he cried.” An 11-year-old girl fleeing sexual harassment
and domestic abuse travelled to Mexico with a group of children. The group
stayed at a housing facility for people waiting to cross the border, which was
a large, filthy room with rats, spiders, and piles of garbage. When she refused
to engage in sexual relations with “El Gordo,” one of the people in charge of
the housing facility, he punished her by making her sleep near the garbage.
In addition to facing cruel treatment from those they met on
the journey, the children described the surrounding terrain and overall
conditions of the voyage as harsh and extremely dangerous. A boy fleeing gang
extortion and forced conscription described traveling through the desert to
cross the border. “There was a time when he was lost for three days without
food or water. He feared that he would die of dehydration or from an animal
attack.” One girl described a frightening and unsafe river crossing: “The
person helping her to the United States was taunting her and the other children
when they got to the river. She reported that he was discussing the
consequences of falling into the river, including certain death. She stated
that the group used a tire and rope (which had been tied to a tree) to cross
the river.”
U.S. Border
Enforcement and Immigration Detention Traumatize Children
Children
continued to recount negative experiences at the hands of U.S. government
officials upon
arrival in the United States. A girl reported that dogs and immigration
officers chased her through a field and that one of the dogs tried to bite her.
The officer handcuffed her and put her in a car. Another child felt he would be
protected if he could only get to the United States. He explained that when he
crossed the border and was apprehended by U.S. agents, he shouted out, “I am
fifteen,” because he knew that 15-year-olds are entitled to rights as a minor.
He described those few minutes as “the scariest moment of [his] life.”
Children also described U.S. detention centers as
intimidating, scary, and inadequate. One girl reported that another person in
detention had groped her. The officer took her statement and reviewed video
footage, but questioned her account, saying that he could not see the event on
the video. She asked, “What would I gain from lying about this?” However, the
detention facility staff returned her to the same detention area in which she
had been groped. One boy recounted that, after being handcuffed, he and his
cousin were taken to a facility and interrogated. Because he was a minor, he
was separated from his older cousin and taken to a children’s residence. He
later found out that his cousin had been deported. He described the fear caused
by the lack of information about the immigration process and whereabouts of his
family members: “When I was there, I was scared and I didn’t know what was
going to happen. I didn’t know what had
happened to my cousin.” Another boy spoke of his experiences in La Hielera (‘the icebox,’ a term used to
describe U.S. Customs and Border Protection holding cells). He suffered hunger
because he was only occasionally given cookies and juice to eat. He remembered
that his first day at La Hielera was
also his birthday. A clinician observed in an interview with a girl, “She was
stoic throughout the interview when describing her torture, and only became
tearful when describing being detained in a cold cell on the U.S. side of the
border.”
Physical and Psychological
Manifestations of Trauma
“The rape is still with me…. I am no longer the same as all the other girls my age…. I’m different. This has changed me forever.”
18-year-old girl from El Salvador
The impact of this complex trauma often resulted in serious
effects on these children’s health. The surveyed group presented many medical
problems, including acute musculoskeletal and dermatologic trauma, such as
bruising, cuts, bleeding, and both acute and chronic pain. Sexual assault
survivors often reported pain, bleeding, and, in several instances, unwanted
pregnancies. Physical injuries resulting in scars were documented in numerous
cases from lacerations, burns, gunshot wounds, and other acute trauma
injuries. Head injuries resulting in
concussions and potential neurocognitive effects were also suspected in some
evaluations. However, the most significant burden of illness in this population
was the psychological sequelae of trauma and abuse.
In our sample, 76 percent of children
were suspected or diagnosed to have at least one major mental health diagnosis,
most commonly post-traumatic stress disorder (PTSD)(64 percent), major
depressive disorder (40 percent), and anxiety disorder (19 percent). The affected children exhibited a broad range
of symptoms, from dissociative reactions to symptoms of flashbacks, nightmares,
sad and depressed mood, hopelessness, guilt, anger, irritability, and many
others commonly associated with these conditions.
76 percent of children were suspected or diagnosed to have at least one major mental health diagnosis.
A nine-year-old boy continues to have PTSD symptoms, such as intrusive thoughts about his abusive father, waking several times per night in fear. He feels safe in the United States but fears that his mother will be killed if they return to Honduras. The clinician noted that his symptoms, along with his young age, may make it difficult for him to consistently narrate his experiences clearly and coherently, especially in high pressure settings such as an asylum interview or an immigration court hearing. A clinician evaluating a seven-year-old boy noted that he laughed and then refused to speak during the evaluation; these are normal reactions to cope with the stress of recounting abuse but could negatively impact credibility in asylum proceedings. Said the clinician, “I had brought a variety of dolls and action figures to the interview. He chose a very big action figure and a smaller doll and had the action figure hit the doll hard several times. When he used the action figure and doll to demonstrate how his father used to repeatedly hit his mother, he began to laugh. In part, this was due to the developmentally normal pleasure in play. It was fun to have dolls at his disposal. However, it is my clinical judgment that the laughter was primarily generated as a defense against keen anxiety. After enacting the father’s attack on the mother through the dolls – an attack in which the attacker was strikingly larger than the victim – he appeared exhausted, stating, ‘I’m done.’”
Even after children arrived in the United States and were
placed in stable environments, the lasting impact of trauma was evident in
their ongoing difficulties with emotional regulation, social interactions, and
bonding with parents and other caretakers. Children often spoke of continued
distress, and family members or evaluators frequently described abnormal
development and relationships. One evaluator wrote, “He has difficulty
connecting to his parents, is extremely quiet, and only speaks when spoken to.”
The same child was also described as having verbally and physically violent
outbursts, and “has expressed suicidal thoughts and emotional numbing.” He is
further described as having “a lack of psychological fluency, impoverished
personal narrative, and apparent difficulty working with perceived authority
figures.” These children also often described difficulty forming healthy
relationships and an inability to trust others because of their experiences.
One boy stated that he “does not feel as though he can trust anyone at his school or community.” Additionally, children faced frequent reminders and triggers of their past trauma. An evaluator described the reactions of a young woman she interviewed, detailing her current experiences in the United States: “When she sees a group of men, which will trigger memories of what happened to her … she feels a 9/10 [degree of fear]…. In these moments she does not know what to do and feels confused and frozen. She avoids activities such as shopping if there is a chance she will see men there. She feels afraid if she hears men yelling. She thought that the ‘white’ immigration officers would assault just like they did in Honduras. She can’t trust people and feels on edge; once a male friend tried to give her a hug but she felt frightened.” The client herself described how she does not “want to get married because [she] feel[s] disgusting.” Trauma expertise is essential to support children to tell their persecution story. One clinician stated, “X was helped with gentle breathing and grounding techniques to help her compose herself. Given her dysregulation and concern of re-traumatization, the self-soothing techniques helped her regain emotional regulation [while narrating the sexual abuse she survived].”
In some of the most alarming examples, young children and
adolescents reported emotional distress from both past and recent suicidal
ideation or suicide attempts. Some of these experiences occurred during past
periods of trauma and abuse in their country of origin. For example, a child described
her suicidal feelings after years of abuse by her aunt. The years had taken
quite a toll on her, until she finally “attempted to kill herself by cutting
her wrists with a razor blade. She recalls ‘not knowing what else to do.’ When
her aunt saw what she was doing, she grabbed her cut wrist and said, ‘If you
really want to die, you have to do it deeper,’ and dug her long fingernail into
one of the cuts.” In other cases, the psychiatric illness and suicidal ideation
are present at the time of evaluation. One eight-year-old child’s mother
reported, “He loses his temper every day, throws things at the wall, smacks
himself, and is not aware of what he is doing.” This
type of irritability is common in children who have experienced trauma and is
considered a symptom of depression. The clinician noticed that his facial
expressions were either sad or flat and expressionless; even when saying,“Playing
makes me happy,” his facial expression did not match the statement. His mother
told the clinician that when her son is in a bad mood, he says he would rather
die.
Children Demonstrate Resilience
Despite the
extreme trauma these children have experienced, and their resulting
developmental, psychological, and physical harm, many reported successfully
rebuilding their lives in the United States, where they are safe and secure
from physical harm. An adolescent explained his transition, stating “Whatever
happened in my country can stay in my country – now that I’m here, it’s like a
different world; I don’t want to remember the other world anymore.” Another boy
describes being free to live without hiding his sexual orientation: “I didn’t
plan to come here, it just happened [because] the situation was getting worse,
especially for gay people. They don’t have the freedom to go out, have parties,
or have relationships. They are criticized, and they can be killed. Here I
don’t hide who I am.” Another young boy, who is an evangelical Christian and
comes from an indigenous group, reported that in his country he hid his ethnic
and religious identity even from his friends; he was particularly afraid that
his traditional dancing would cause him to be a target of violence, as it did
not fit dominant cultural views of masculinity. In the United States, he has
joined a dance group in his church where he is able to wear his traditional
costumes and dance to indigenous folk music.
Many of the
children whose cases were analyzed for this study demonstrated resilience and
significant physical and psychological improvement since coming to the United
States. One boy explained the change, describing how “ever since coming to the
United States [he] feels happier. [He] states that he no longer feels scared,
can sleep through the night, concentrates well at school, and gets along well
with his family. [He] states that he has made many friends at school and has a few
friends that live near him and will sometimes meet them to play soccer in the
park.” A girl described her life in the United States: “I walk, work, get fresh
air, listen to music, try to have conversations with other people. I guess I
can see the beauty of the world.” Another boy has scars and joint pain from the
blunt force trauma he sustained during beatings, during which he also sustained
significant head injuries resulting in concussion and post-concussive syndrome
(loss of consciousness, vomiting, months of headaches). Due to years of abuse
by gangs, he made two suicide attempts in his home country. The clinician
concluded, “Although his current symptom burden is much less, it is significant
that this drastic improvement seems largely facilitated by finding relief from
his violent circumstances and safety in the United States”
Another
crucial component of these children’s recovery is the ability to envision a
better and more hopeful future and to make a contribution as a valuable member
of society, including through turning their negative experiences into a way to
help others. One child described how “she feels safe in the United States. She
hopes to attend university to become a psychologist. She wants to feel better
herself and then help others overcome fears and trauma, especially sexual
trauma.” Another explained his goals, describing how “when he is older he
wants to be a lawyer so he can protect and defend his family. He also wants to
be in the military in the United States to defend the United States and his
family from danger. He wants to stay in the United States so he can reach his
goals.” One “likes the idea of being a police officer so he can help
people;” another “wants to study criminal justice. He says he is very
interested in justice. When asked why, he states that he ‘wants to help provide
justice to people who don’t have it, including those of [his] country.’”
Legal
Framework
Human Rights Law
Standards
Since 89 percent of the children in the data set come from
countries in the Northern Triangle – El
Salvador, Guatemala, and Honduras – and transit through Mexico to seek asylum
in the United States, the legal framework reviews relevant provisions governing
the protection of children from the forms of violence mentioned in the study,
both in Inter-American regional standards and national laws in the children’s
respective home countries. When states persecute or fail to prevent persecution
on the basis of race, religion, nationality, political opinion, or membership
to a particular social group, international law provides asylum as a solution
to meet those protection needs. Since the study’s findings indicate a failure
of state protection according to these standards, we then review the legal
basis for possible asylum claims in the United States as well as international
and U.S. legal and policy standards governing the treatment of child asylum
seekers.
Protections under International and Regional Law
The International
Covenant on Civil and Political Rights guarantees rights to all individuals
within a state party’s jurisdiction, regardless of national or social origin,
without discrimination.[43]
These rights include the right to life, the prohibition of torture or cruel,
inhuman or degrading treatment, prohibition of arbitrary detention, and humane
treatment for detainees.[44]
Protection of the family unit by the state is also a recognized civil and
political right.[45]
Finally, children’s right to special protection, regardless of national or
social origin, is also recognized as a civil and political right.[46]
The American Convention
on Human Rights explicitly establishes the rights of children. For example,
article 19 states, “Every minor has the right to the measures of protection
required by his condition as a minor on the part of his family, society, and the
state.”[47]
The American Convention does not permit suspension of any rights pertaining to
children or the family; the Convention is different from all other human rights
instruments in this aspect.[48]
The Inter-American system integrates regional documents and court decisions
with the United Nations Convention on the Rights of the Child (CRC) and
decisions of the corresponding committee to establish the rights of children.[49]
In this respect, the
Inter-American system recognizes principles such as the best interests of the
child, as established in the CRC.[50]
Numerous advisory opinions and court decisions of the American system have
confirmed the validity of child rights standards in practice,[51]
including protections for street children,[52]
protection of children from police brutality,[53]
reparations for denial of education for children,[54]
and accountability for detention conditions.[55]
Specific protection
against gender-based violence, including domestic violence, is also addressed
at the regional level. The Inter-American Convention on the Prevention,
Punishment, and Eradication of Violence against Women, known as the Convention
of Belém de Pará, calls for the protection of women and girls from physical,
sexual, and psychological violence.[56]
The Convention specifies that women should be free from violence perpetrated by
assailants who are known or unknown, including when occurring in domestic or
interpersonal relationships.[57]
The Convention has been ratified by 27 states and acceded to by another five
states, evincing recognition in the region of state obligation to protect women
and girls from violence.[58]
Protection under National
Laws
The Northern Triangle
countries – El Salvador, Guatemala, and Honduras – and Mexico have laws in
place to protect children, but enforcement remains a challenge. El Salvador,
Guatemala, and Honduras have criminalized child abuse, but it remains a serious
problem in all three countries as well as in Mexico,[59]
with an extremely high rate of impunity for crimes against children in
Guatemala.[60]
Domestic violence is against the law in El Salvador and Honduras,[61]
however, domestic violence laws are poorly enforced in El Salvador, and
punishments for domestic violence vary widely in Honduras.[62]
In Mexico, spousal abuse is not criminalized under federal law, and state laws
on domestic violence are often unenforced.[63]
Guatemala, El Salvador, and Mexico have enacted statutory rape laws,[64]
but Honduras does not even have a law criminalizing statutory rape.[65]
Reports indicate that the sexual exploitation of minors remains a problem in El
Salvador, Honduras, and in the border regions of Mexico.[66] The U.S. State
Department reported that rape laws were ineffectively enforced in both El
Salvador and Guatemala in 2018.[67]
Responses to gang
violence in the region mostly take the form of punitive security policies with
names like “Iron Fist” and “Zero Tolerance”, which rely on mass arrest,
incarceration, and militarized policing, with reports of police brutality and
extrajudicial killings.[68]
Alternative approaches such as safe school initiatives, specialized services,
and violence prevention measures are positive, but chronically underfunded and
limited in capacity.[69]
High-level initiatives to end corruption and impunity for violence, such as the
UN’s Commission against Impunity in Guatemala, though widely popular, face
political opposition and an uncertain future.[70]
In spite of the
existence of regional and national laws which should protect children, these
laws are not adequately enforced, which may amount to failure of state
obligation to protect children.
International Law Requires
a Due Diligence Standard
Adequate legal
framework is important, but not sufficient for the protection of children. Even when violence or
persecution is not committed directly by state actors, international law and
jurisprudence makes clear that states are responsible for exercising due
diligence to protect all people in their jurisdiction from attacks by non-state
actors. Remedies must be accessible and
effective in order to fulfill state obligations.[71]
The due
diligence standard requires that states effectively investigate, prosecute, and
punish perpetrators, as well as provide effective protection mechanisms;
failure to do so represents an abrogation of states’ legal obligations.[72]
In addition to state failure to investigate, which results
in de facto impunity and encourages
future violations, failure of the state to provide specialized services for
children who are abandoned, neglected, or exploited can amount to a violation,
because it exposes them to increased risk.[73]
More comprehensive
approaches not only define the elements of a crime, such as domestic violence,[74]
but also establish proactive measures to prevent and protect from violence,
including creating specialized police officers to assist female victims[75]
and promoting public education on gender equality and the rights of women.[76]
Laws can designate appropriate methods of assistance for courts, health care
workers, and police officers.[77]
Protections
under Asylum and Refugee Law
U.S. and international refugee law provide a legal solution –
asylum – for instances where severe harm on a discriminatory basis is combined
with failure of state protection. When states fail to protect the basic rights
of those within their jurisdiction, mechanisms for international protection are
triggered. The principle of non-refoulement, which exists under international refugee law[78]
and as customary international law,[79]
prevents states from returning a person to any country where their life or
freedom would be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion.[80]
A state is also prevented from returning a person to a third state where there
is a risk of further return to the country where the threat exists to their
life or freedom.[81] Non-refoulement also implies an obligation of
temporary admittance of asylum seekers at the border in order to assess asylum
claims so as to ensure meaningful review and prevent returning individuals to
serious harm.[82]
Non-citizens who are lawfully present in the state’s territory are entitled to
procedural protections before removal, including the opportunity to appeal the
decision of removal.[83]
The United Nations General Assembly has affirmed the principle of access to a
fair and efficient refugee status determination process.[84]
The Cartagena
Declaration on Refugees expands the definition of ‘refugee’ to any person fleeing persecution
on one of the five protected grounds in the Geneva Convention, or based on
threats to safety or freedom by “generalized violence, foreign aggression,
internal conflicts, massive violation of human rights, or other circumstances
which have seriously disturbed public order.”[85]
The adoption of this definition by 14 countries, including the Northern
Triangle countries and Mexico,[86]
indicates emerging local consensus that regional trends in forced displacement
support a wider definition for application of refugee protections.
Asylum
Protection from Persecution from Gang Violence
The UN High Commissioner for Refugees Handbook on Refugee
Status Determination states that acts committed by non-state actors can be
considered persecution if the authorities knowingly tolerate the acts, or if
the authorities refuse or are unable to offer effective protection.[87]
Asylum jurisprudence, in the United States and internationally, confirms that
discriminatory attacks by non-state actors such as gang members can qualify as
persecution for the purpose of asylum claims.[88]
U.S. law recognizes persecution by non-state actors, as long as the asylum
seeker is able to prove that the government is “unable or unwilling” to control
the persecutors.[89]
High rates of impunity, police and government corruption, and failure of police
to either investigate reported crimes or offer protection indicate government
inability or unwillingness to control non-state actors who are harming
children. Relevant factors to understand the basis for gang violence survivors’
asylum claims include past resistance to gang activity, former or current gang
membership, and whether they are victims or critics of the state’s anti-gang
policies and activities.[90]
When assessing the presence or absence of state protection, a lack of effective
witness protection and public perception of seeking police help as futile or
actually increasing the risk of harm are important factors to consider.[91]
Generally, gang-related claims have been assessed under political opinion or
membership in a particular social group.[92]
For children targeted or recruited by gangs, courts have recognized that their
age, in other words, their identity as “children,” may also be considered as a
protected particular social group which may fall under criteria for asylum.[93]
Asylum
Protection from Persecution Involving Domestic Violence
International human rights law makes clear that severe forms
of domestic violence, in the absence of state protection of victims, can amount
to violations of the right to freedom from torture and inhumane treatment.[94]
Asylum jurisprudence, in the United States and internationally, confirms that,
for the purpose of asylum claims, discriminatory attacks by family members or
intimate partners can qualify as persecution when government authorities do not
provide effective protection.[95]
UN High Commissioner for Refugees’ interpretive guidance advises that domestic
violence survivors may be considered members of a particular social group with
gender as an immutable characteristic, or gender combined with relationship
status, national origin, or other characteristics.[96]
A recent U.S. court ruling has reaffirmed the right of domestic violence
survivors to pursue asylum claims based on credible fear of persecution as
members of a particular social group.[97]
U.S. courts have also recognized domestic violence as a form of persecution,
which triggers the application of asylum protections, specifically in the case
of abused children.[98]
Asylum Protections for Children
Children are uniquely
vulnerable to child-specific forms of persecution, such as under-age
recruitment, child trafficking, female genital mutilation, underage
marriage, child labor, child prostitution, and child pornography.[99]
Children are also likely to be more affected by harms to family members, especially
parents, due to their dependency. However, states cannot expect children to
participate in immigration systems and asylum proceedings in the same way that
adults can.
Children may need
accommodations or assistance in order to tell the story of their persecution,
which takes into account their trauma, level of development or education,
submission to authority figures, and lack of understanding of events in their
home country and of asylum procedures.[100]
In recognition of the particular vulnerability of children, U.S., regional, and
international law provide additional protections for child asylum seekers above
the standard of asylum protections for adults.
The CRC requires state
parties to consider the best interests of the child in all actions.[101]
The Convention mandates that a minor seeking asylum be afforded “appropriate
protection and humanitarian assistance in the enjoyment of applicable rights.”[102]
Experts also advise that the child’s best interests be seriously considered as
an independent source of international protection during child asylum and
removal decisions.[103]
The Inter-American
Court of Human Rights has applied the principle of non-refoulement to children,
even when the child has not yet received refugee status but has asserted their intent
to apply for asylum, including at the border.[104]
The Court stated that the decision on the return of a child to their country of
origin or to a third country should always be based on the best interests of
the child.[105]
According to the Court, states must protect the need of children to grow and
develop, and must accordingly offer “the necessary conditions to live and
develop their aptitudes taking advantage of their full potential.”[106]
Furthermore, states should account for “the specific forms that child persecution
may adopt, such as recruitment, trafficking, and female genital mutilation”
when adjudicating asylum claims.[107]
The procedures for seeking asylum, including permitting asylum-seekers to enter
the country at the border, must be executed irrespective of whether or not a
child is accompanied by a parent or adult relative.[108]
Regarding child
detention, the CRC forbids unlawful or arbitrary imprisonment, and states that
“[t]he arrest, detention or imprisonment of a child shall be … used only as a measure
of last resort and for the shortest appropriate period of time.”[109]
Moreover, the Convention states that “[e]very child deprived of liberty shall
be treated with humanity and respect for the inherent dignity of the human
person, and in a manner that takes into account the needs of a person of his or
her age.”[110]
Although the United States has not ratified the CRC, and is the only country in
the world not to have done so, as a signatory to the treaty, the United States
is bound by customary law not to violate the object and purpose of the treaty.
Family unity is a
fundamental tenet of refugee law, recognized as an essential right which
obliges governments to protect families.[111]
The Inter-American Court of Human Rights stressed the importance of the family
unit in the context of migration and noted that a child “has the right to life
with his or her family.”[112]
The concept of family unity was recognized by the U.S. Supreme Court as a
fundamental right protected by the due process clause of the Fourteenth Amendment
to the Constitution: “The interest of parents in the care, custody, and control
of their children.”[113]
The right includes the ability to make decisions regarding the upbringing of
children, to establish a home, and to control the child’s education.[114]
U.S. government actions to separate parents and children in the context of
immigration law enforcement in 2018 were halted with an injunction, and the
government was required to reunite the separated parents and children,
demonstrating the continuing importance of family unity as a guiding norm.[115]
U.S. Laws and Policies Recognize Child Asylum Rights
Indeed, numerous U.S.
domestic laws reinforce the universal “best interests” standard which requires
enhanced procedural safeguards for children. For instance, statutory bars to
apply for asylum[116]
(such as the “safe third country” exception or the one-year filing deadline) do
not apply to unaccompanied minors.[117] Thus, children are still entitled to apply
for asylum, whereas an adult in the same position would be barred. The United
States also offers a specific form of legal status to children who are victims
of parental abuse. Special Immigrant Juvenile Status is immigration status
granted to a minor (under 21 years of age) in the United States on the basis of
abuse, abandonment, or neglect by one or both parents if it is not in their
best interest to return to their country of origin.[118]
Unaccompanied children
seeking asylum in the United States are entitled by U.S. law to a
non-adversarial process with a trained asylum officer, rather than an
adversarial process in immigration court.[119]
This provision implicitly recognizes that traumatized children fleeing persecution
should be heard in an age- and trauma-sensitive process.
The Central American
Minors Program allows children to apply from U.S. embassies in El Salvador,
Guatemala, and Honduras to gain legal entry to the United States to reunify
with their parents living in the United States. Allowing children to apply in
their home countries recognizes the vulnerability of children during migration
and reduces harm experienced in transit. The program was established in 2014;
however, in November 2017, the United States stopped accepting new
applications.
U.S.
Laws Related to Child Protection for Non-citizen Children
In
addition to protections for children in asylum proceedings, U.S. law provides
additional protections which regulate how non-citizen children may be treated. The Flores Settlement Agreement (1997)[120]
contains requirements for the detention, release, and treatment of minors in
government custody, including while awaiting removal or adjudication of asylum
claims.[121] The
agreement prioritizes the release of children into the custody of an
appropriate adult wherever possible[122]
and outlines minimum standards for licensed facilities where children may be
held.[123]
These standards include: proper physical care and maintenance, appropriate
medical care, individualized needs assessments, education services, recreation
and leisure activities, counseling sessions, access to religious services,
visitation, family reunification services, and legal information.[124]
Lawyers have protected children in custody by suing on their behalf to enforce
the settlement agreement, arguing that the government fails to meet the minimum
conditions of detention and that conditions must be improved; such lawsuits
represent a recognition of the unique rights of children.[125]
The Trafficking Victims
Protection Reauthorization Act of 2008 (TVPRA) creates the institutional
framework to effectively implement a higher standard of protection for
children. The TVPRA places responsibility for the care of children in custody
with the Department of Health and Human Services’ (HHS) Office of Refugee
Resettlement rather than with U.S. Immigration and Customs Enforcement, which
has a law enforcement rather than a protective mandate.[126]
Showing the urgency of this standard, the TVPRA requires that children be
transferred into HHS custody within 72 hours unless “exceptional circumstances”
apply.[127] By
definition, HHS custody is understood to be a more child-sensitive environment,
“the least restrictive setting that is in the best interest of the child.”[128]
Universal customary and treaty norms have established the best interests of the child as the primary standard by which actions involving children must be assessed, and numerous U.S. laws, policies, and legal judgments have confirmed the relevance of that standard in practice, including in relation to non-citizen children.
Conclusion
This study documents significant multi-dimensional, recurrent,
and sustained trauma experienced by children seeking asylum in the United
States both in their countries of origin, often prompting their flight, and
compounded and exacerbated by cruel and inhumane policies after they cross the
border. Children reported suffering direct physical violence (78 percent) and
sexual violence (18 percent), threats of violence or death (71 percent), and
witnessing acts of violence (59 percent). The perpetrators were most often gang
members (60 percent), but a significant portion of children (47 percent) faced
violence from family members. Children reported a failure of state protection,
from direct police brutality against children to deliberate police inaction
despite knowledge of crimes against children. Children also reported
frightening and dangerous experiences in transit, while crossing the border,
and in U.S. immigration detention.
Physicians for Human Rights’ clinicians documented a range of
negative physical aftereffects of the abuse that children suffered, from
musculoskeletal, pelvic, and dermatologic trauma – including bruising, cuts,
bleeding, and acute and chronic pain – to head injuries resulting in
concussions and potential neurocognitive damage. The psychological impact of
abuse was also significant. In this sample, 76 percent of children were
suspected or diagnosed to have at least one major mental health diagnosis, most
commonly post-traumatic stress disorder (64 percent), major depressive disorder
(40 percent), and anxiety disorder (19 percent). Children exhibited a broad range of symptoms,
such as dissociative reactions, symptoms of flashbacks, nightmares, sad and
depressed mood, hopelessness, guilt, anger, and irritability. However,
clinicians also documented the children’s reports that their symptom burden
decreased significantly after finding physical safety and security in the
United States.
In the countries from which children were fleeing, these
findings indicate that children need protection from gang violence. Boy
children faced threats to join gangs or if they tried to leave the gang, and
girl children reported being threatened or forced to have sex with gang
members. Children reported that they did not feel safe at school due to gang
violence, which indicates a need for improved security in academic settings.
Children reported that their parents neglected them and subjected them to child
labor, which calls for targeted interventions to support school attendance.
Others become homeless to escape domestic abuse; street children are especially
vulnerable and need holistic programming to meet their needs. Children in this
study did not report that they had access to protection by community policing
or restraining orders, homeless shelters or safe houses, school retention
programming, or effective post-rape care.
The extreme levels of
pervasive violence described by more than 160 children from the Northern
Triangle of Central America – El Salvador, Guatemala, and Honduras— must be
considered in light of the rising numbers of children and families from those
countries seeking asylum from persecution in the United States. The
recommendations which follow propose ways to ensure child protective standards
and practices at all stages of the migration and asylum process.
Recommendations
Children have the right to be safe from harm, including
through provision of enhanced substantive and procedural protections which take
into account their level of development and maturity. Policy implications of
compound trauma exposure of children should be seriously considered by
government authorities in countries of origin, transit, and asylum.
For the U.S.
Government:
The Administration, Department of Justice, and Department of
Homeland Security
Given
the extreme levels of violence experienced by children in the Northern Triangle
evaluated by Physicians for Human Rights, the administration should:Recognize
and address displacement trends driven by human rights abuses by ensuring
access to asylum in the United States, maintaining vital aid to Northern
Triangle countries to address gang-related violence, corruption, and impunity,
and developing new programs which specifically support child protection
services in those countries; Ensure
capacity to systematically identify children with international protection
needs, including through mandatory child welfare protection training and
inter-agency screening tools for U.S. Customs and Border Protection (CBP)
personnel;Re-establish
and expand the Central American Minors parole program so that children can
apply for protection from their home countries and avoid the risks in transit
to the border;Ensure
access to a fair and efficient process for legal subsidiary protection status
for children who do not meet the refugee definition but would be at risk of
serious harm if returned.Since
separation from parents has been identified in this study as a vulnerability
factor which increases risk of harm, the administration must stop separating
families migrating together and reunite all families separated by the U.S.
government, until there is a proven risk of harm to the child. The government
must not target potential child sponsors for immigration enforcement, in order
to ensure timely release of children from federal custody;Given
the health status of arriving children, which has been affected by repeated
trauma exposure, the administration should:Ensure
that all children receive adequate pediatric medical screening on arrival to
custody with referral for further care to be determined by a qualified medical
professional;Ensure
that no child is detained for longer than 24 hours in CBP holding cells by
transferring children to enhanced reception centers with access to appropriate
medical care and other essential services;Abide
by minimum standards for care of children in custody;Increase
resources for and utilization of alternatives to detention, such as reviving
the Family Case Management Program, and prioritize the timely release of
children and infants to community settings;Ensure
appropriate staffing and oversight for all facilities holding children,
including emergency response capacity for influxes;Investigate
and ensure accountability for all allegations of abuse against children,
through documentation, reporting, and review of all interactions between
government officials and children.
U.S. Congress
Exercise
oversight regarding practices which limit access to asylum and uphold U.S. law,
which establishes the asylum process for those with a credible fear, regardless
of manner of entry,[129]
as well as the right to not be returned to likely persecution;[130]Allocate
appropriate immigration and border enforcement funding for concrete
deliverables such as increased inspection capacity at ports of entry, increased
capacity for processing asylum claims, improved detention conditions, and scaled
up alternatives to detention programming; Codify
the minimum child protection standards of the Flores Settlement Agreement into law;Seek
to ratify the United Nations Convention on the Rights of the Child to
strengthen the legal framework for child protection, and fully consider the
best interests of the child in development of all laws and policies concerning
them.
For the Governments of El Salvador, Guatemala,
Honduras, and Mexico:
Ensure
adequate resources to investigate, prosecute, and punish violent acts committed
by state and non-state actors, while ensuring due process protections for the
accused, and establish or maintain independent investigatory bodies to address
corruption and impunity;Ensure
adequate resources for violence prevention measures, such as specialized police
units, gender equality education initiatives, and special assistance by courts,
the social welfare system, and health care workers;Ensure
that the rights of children seeking asylum are respected, and the best
interests of the child considered in asylum screening, reception of child
migrants, and repatriation to home countries.
For Refugee and Migration
Bodies, Including United Nations High Commissioner for Refugees, International
Organization for Migration, and the Special Rapporteur on the Human Rights of Migrants:
Monitor
immigration and border governance policies and practices of governments to
assess their compliance with child rights’ standards and their impact on child migrants
and asylum seekers;Urge
states to end policies that restrict the right to seek asylum and to uphold
legal obligations of non-rejection at the frontier;Advance
gender- and age-sensitive understandings of persecution, including persecution
by non-state actors, responding to states who seek to apply a more narrow
definition of refugee status with evidence about forms of trauma and
persecution commonly affecting children;In
order to decrease risks to children in transit, facilitate regional migrant protection
protocols, increase humanitarian support in transit locations, and urge states
to increase capacity to receive asylum seekers and quotas for the refugee resettlement
program.
For International Bodies with a Child Rights Mandate, Including
the United Nations Committee on the Rights of the Child, UNICEF, and Inter-American
Commission on Human Rights Rapporteur on the Rights of the Child:
Monitor
the child rights situation in countries of origin in order to accurately advise
countries of origin on methods to improve child protection and also to inform
accurate country conditions information related to child asylum claims;Advance
understanding of the application of a child-rights framework to migration and
asylum processes, from standards setting to identification of best practices;Continue
to urge the United States to ratify the UN Convention on the Rights of the
Child.
Acknowledgments
This report was written by faculty and students from Weill Cornell School of Medicine Kevin Ackerman, Weill Cornell Center for Human Rights (WCCHR) case scheduler; Lynne Rosenberg, WCCHR director of organizational operations; Joseph Shin, MD, WCCHR co-medical director, assistant professor of medicine at Weill Cornell Medicine, and attending physician at New York Presbyterian Hospital; and by PHR staff Hajar Habbach MA, program associate; Kathryn Hampton, MSt, network program officer; and Sarah Stoughton JD, legal intern.
The report benefitted from review by PHR staff, including Maryam Al-Khawaja, Europe director; DeDe Dunevant, director of communications; Derek Hodel, interim director of programs; Donna McKay, MS, executive director; Michael Payne, advocacy officer; and Susannah Sirkin, MEd, director of policy.
The report also benefitted from external review by PHR Board Member Lois Whitman, JD MSW.
The report was edited by Claudia Rader, MS, senior communications manager. It was prepared for publication by Claudia Rader and PHR interns Theresa McMackin and Angelica Rossi-Hawkins.
Support for this report was provided by the Harman Family Foundation.
Endnotes
[1] John Kelly, “Transcript: White House
Chief Of Staff John Kelly’s Interview With NPR,” NPR.org, last modified
May 11, 2018, https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief-of-staff-john-kellys-interview-with-npr;
Attorney General Jeff Sessions, “Attorney General Sessions Delivers
Remarks Discussing the Immigration Enforcement Actions of the Trump
Administration,” Speech, May 7, 2018, https://www.justice.gov/opa/speech/
attorney-general-sessions-delivers-remarks-discussing-immigrationenforcement-actions.
[2] Karen Musalo and Eunice Lee, “Seeking a
Rational Approach to a Regional Refugee Crisis: Lessons from the Summer 2014
Surge of Central American Women and Children at the US-Mexico Border,” Journal on Migration & Human Security
5 (2017), 137.
[3] See for example: I. Derluyn and E.
Broekaert, “Different perspectives on emotional and behavioural problems in
unaccompanied refugee children and adolescents,” Ethnicity & Health, 2007;12(2):141-162; Mina Fazel, Ruth V.
Reed, Catherine Panter-Brick, and Alan Stein, “Mental Health of Displaced
and Refugee Children Resettled in High-income Countries: Risk and Protective
Factors,” The Lancet, 379, no.
9812 (2012), 266-82, doi:10.1016/s0140-6736(11)60051-2.
[4] The principle of non-refoulement under international human rights law, Office of the High Commission on Human Rights, accessed at: https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf.
[5] “Total Illegal Alien Apprehensions By Month,” United States Border Patrol, https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-apps-sector-area-fy2018.pdf.
[6] “Total Unaccompanied Alien Children (0-17 Years Old) Apprehensions by Month,” United States Border Patrol (2018), https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-uacs-sector-fy2010-fy2018.pdf.
[7] “Total Family Unit Apprehensions by Month FY2018,” United States Border Patrol, https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-family-units-sector-fy13-fy18.pdf.
[8] “Intentional Homicides (per 100,000 People),” The World Bank (2016), https://data.worldbank.org/indicator/VC.IHR.PSRC.P5. [El Salvador, Honduras, and Guatemala have the highest, 2nd highest, and 10th highest rates, respectively, of intentional homicides per 100,000 people.].
[9] “Children on the Run – Unaccompanied
Children Leaving Central America and Mexico and the need for International
Protection,” United Nationals High
Commissioner for Refugees (13 March 2014).
[10] Annual Flow Report: Refugee and Asylees 2017, Department of Homeland Security Office of Immigration Statistics Office of Strategy, Policy and Plans (March 2019), https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2017.pdf.
[11] Doe v. Nielsen, 3:19-cv-00807, 1, 10 (N.D. Cal. 2019) (Complaint for Declaratory and Injunctive Relief), https://www.aclu.org/sites/default/files/field_document/2019.02.14.0001_compl._for_decl._and_inj._relief.pdf.
[12] “A Timeline: How the Trump Administration is Rolling Back Protections for Children,” KIND (9 October 2018), accessed at: https://supportkind.org/resources/a-timeline-how-the-trump-administration-is-rolling-back-protections-for-children/.
[13] Israel Bronstein and Paul Montgomery, “Psychological distress in refugee children: a systematic review,” Clinical Child and Family Psychology Review 14, no. 1 (2010); Paul L. Geltman et al. “The ‘lost boys of Sudan’: functional and behavioral health of unaccompanied refugee minors resettled in the United States,” Archives of Pediatric and Adolescent Medicine 159, no. 6 (2005); Matthew Hodes, “Psychopathology in refugee and asylum-seeking children,” in Michael Rutter et al. (eds.), Rutter’s Child and Adolescent Psychiatry (Wiley-Blackwell, 2009).
[14]> MS. L v. ICE, Order Granting the Plaintiffs’ Motion for Classwide Preliminary Injunction, Case 3:18-cv-00428-DMS-MDD, accessed at: https://www.aclu.org/legal-document/ms-l-v-ice-order-granting-plaintiffs-motion-classwide-preliminary-injunction.
[15] Ibid.
[16] See PHR report for background on policy developments in U.S. border enforcement: Kathryn Hampton, “Zero Protection: How U.S. Border Enforcement Harms Migrant Safety and Health,” Physicians for Human Rights (January 2019),
https://phr.org/resources/zero-protection-how-u-s-border-enforcement-harms-migrant-safety-and-health/.
[17] “PHR Opposes the Proposed Changes as Announced in DHS Docket NO. ICEB-2018-0002,” Physicians for Human Rights (30 October 2018), https://phr.org/resources/phr-opposes-the-proposed-changes-as-announced-in-dhs-docket-no-iceb-2018-0002/.
[18] Emily Green, “Head of Controversial Tent City Says the Trump Administration Pressured Him to Detain More Young Migrants,” VICE (11 January 2019), accessed at: https://news.vice.com/en_us/article/kzvmg3/head-of-controversial-tent-city-says-the-trump-administration-pressured-him-to-detain-more-young-migrants.
[19] Tal Kopan, “ICE Arrested Undocumented Immigrants Who Came Forward to Take in Undocumented Children,” CNN (20 September 2018), https://www.cnn.com/2018/09/20/politics/ice-arrested-immigrants-sponsor-children/.
[20] Dr. Scott Allen and Dr. Pamela McPherson, Letter to the Senate Whistleblowing Caucus (17 July 2018), accessed at: https://www.whistleblower.org/wp-content/uploads/2019/01/Original-Docs-Letter.pdf.
[21] “U.S. Immigration Policy Contributes to Another Child Death,” Physicians for Human Rights (26 December 2018), accessed at https://phr.org/resources/u-s-immigration-policy-contributes-to-another-child-death/.
[22] Zolan Kanno-Youngs, “Guatemalan Boy Dies at Border Station While Awaiting Move to a Shelter,” New York Times (20 May 2019), accessed at: https://www.nytimes.com/2019/05/20/us/politics/migrant-boy-dies.html; “Adolfo Flores, A 2-Year-Old Boy Detained At The Border Has Died After Weeks In The Hospital,” Buzzfeed (21 May 2019), accessed at: https://www.buzzfeednews.com/article/adolfoflores/toddler-dies-immigrant-border-us-texas-guatemala.
[23] American Immigration Council, American Immigration Lawyers Association (AILA) Complaint Urges Immediate Release of Infants from Immigration Detention (8 February 2019), accessed at: http://americanimmigrationcouncil.org/advocacy/infants-immigration-detention.
[24] “Fact Sheet Alternatives to Detention,” Physicians for Human Rights (October 2018), accessed at: https://s3.amazonaws.com/PHR_other/factsheets/PHR_Asylum_Fact_Sheet_Alternatives_to_Detention.pdf.
[25] Jane C. Timm, “This Obama-era pilot program kept asylum-seeking migrant families together. Trump canceled it.,” NBC News (24 June 2018), accessed at: https://www.nbcnews.com/storyline/immigration-border-crisis/obama-era-pilot-program-kept-asylum-seeking-migrant-families-together-n885896.
[26] See above section, Rising Numbers of
Children and Families Seek Asylum in the U.S.
[27] “Metering Update: February 2019,” Robert Strauss Center at the University of Texas at Austin, the Center for U.S-Mexican Studies (USMEX) at the University of California San Diego, and the Migration Policy Centre, accessed at: https://www.strausscenter.org/images/strauss/18-19/MSI/MSI_MeteringUpdate_190213.pdf; “Barred at the Border: Wait “Lists” Leave Asylum Seekers in Peril at Texas Ports of Entry,” Human Rights First (April 2019), accessed at: https://www.humanrightsfirst.org/sites/default/files/BARRED_AT_THE_BORDER.pdf.
[28] “A Sordid Scheme: The Trump Administration’s Illegal Return of Asylum Seekers to Mexico,” Human Rights First (March 2019), accessed at: https://www.humanrightsfirst.org/sites/default/files/A_Sordid_Scheme.pdf.
[29] Jennifer Podkul, “The Protection Gauntlet: How the United States is Blocking Access to Asylum Seekers and Endangering the Lives of Children at the U.S. Border,” KIND (21 December 2018), accessed at: https://supportkind.org/resources/the-protection-gauntlet-how-the-united-states-is-blocking-access-to-asylum-seekers-and-endangering-the-lives-of-children-at-the-u-s-border/; “Barred at the Border,” Human Rights First.
[30] “Children on the Run,” UNHCR.
[31] See Legal Framework section of this
report, Protections Under Asylum and
Refugee Law.
[32] Matter of AB-, 27 I&N Dec. 227 (AG
2018).
[33] “Practice Advisory: Grace v. Whitaker,”
American Civil Liberties Union, Center
for Gender and Refugee Studies 1, (7 March 2019), https://www.aclu.org/sites/default/files/field_document/grace_practice_advisory_combined.pdf;
An appeal filed by the government in January of 2019 is pending.
[34] PHR’s Asylum Network accepts applications
from physicians, psychologists and mid-level medical and mental health
providers such as licensed clinical social workers and nurse practitioners. To
join the PHR Asylum Network, clinicians must complete a full-day training which
covers asylum law, international standards for documenting physical and
psychological evidence of torture and other human rights abuses, and effective
medical-legal documentation.
[35] UN Office of the High Commissioner for
Human Rights (OHCHR), Manual on the Effective Investigation and Documentation
of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(“Istanbul Protocol”) (2004), HR/P/PT/8/Rev.1.
[36] Requests to PHR for
evaluations in which the client is not seeking a form of humanitarian relief
are not accepted. For accepted requests, PHR staff conduct outreach to its
network of volunteer health professionals. Each forensic evaluation is
conducted in a private location, many with the assistance of professional
interpreters and medical student scribes. Consent is always obtained from the
clients prior to the evaluation with the guidance of their legal
representatives, who are required to fulfill their fiduciary duty to their
client, and often act in concert with guardians or surrogates, if available.
[37] Juveniles — Immigration Court Deportation Proceedings, Transactional Records Access Clearing House (March 2019), accessed at: https://trac.syr.edu/phptools/immigration/juvenile/.
[38] Out of the evaluations, the border
crossing experience was not mentioned in 92 of the cases. In the remaining 88
cases, 61 children crossed the border unaccompanied, while 27 children crossed
the border with a parent or an adult who by law or custom has responsibility to
do so, such as a grandparent, aunt/uncle or older sibling.
[39] “Complex Trauma”, The National Child Traumatic Stress Network, accessed at: https://www.nctsn.org/what-is-child-trauma/trauma-types/complex-trauma; see also John McAloon, “Complex trauma: how abuse and neglect can have life-long effects,” The Conversation (October 2014), accessed at: https://theconversation.com/complex-trauma-how-abuse-and-neglect-can-have-life-long-effects-32329.
[40] Vincent J. Felitti et al., “Relationship
of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of
Death in Adults: The Adverse Childhood Experiences (ACE) Study,” American Journal of Preventive
Medicine, 14, no. 4 (1998).
[41] Kitzmann et. al., “Child Witness to
Domestic Violence: A Meta-Analytic Review,” Journal
of Consulting and Clinical Psychology, 71.2 (2003); HM Zinzow, KJ Ruggiero,
RF Hanson, DW Smith, BE Saunders, and DG Kilpatrick, “Witnessed community and
parental violence in relation to substance use and delinquency in a national
sample of adolescents,” J Trauma Stress (2009);22(6):525–533.
doi:10.1002/jts.20469.
[42] 48 children reported both parents in the
US, 82 children reported one parent in the US and 21 children reported parental
death. There is some overlap within these categories as some children may have
one parent in the United States and one deceased.
[43] UN General Assembly, “International
Covenant on Civil and Political Rights” (16 December 1966), United Nations,
Treaty Series, vol. 999, p. 171, Article 2(1) and Article 26.
[44] Ibid, Articles 6, 7, 9 and 10.
[45] Ibid, Article 23(1).
[46] Ibid, Article 24.
[47] “The Rights of the Child in the
Inter-American Human Rights System, Second Edition,” Inter-American Commission on Human Rights, Adopted October 2008,
Para. 22, http://www.cidh.org/countryrep/Infancia2eng/Infancia2Cap1.eng.htm,
citing “American Convention on Human Rights,” Adopted at the Inter-American
Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969.
[48]
Ibid. at para. 49.
[49]
Ibid. at para. 43.
[50]
Ibid. at para. 44.
[51] I/A Court H.R., Juridical Condition and
Human Rights of the Child, Advisory Opinion OC-17/02 of August 28, 2002. Series
A No. 17.
[52] I/A Court H.R., The “Street Children” Case (Villagrán Morales et al.), Judgment of
November 19, 1999. Series C No. 63, para. 188.
[53] I/A Court H. R., Case of Bulacio, Judgment of September 18, 2003, Series C No. 100,
para. 133.
[54] Case
of the Yean and Bosico Children v. The Dominican Republic, Inter-American
Court of Human Rights (IACrtHR), 8 September 2005.
[55] I/A
Court H. R., Case of the “Juvenile Reeducation Institute,” Judgment of September 2, 2004,
Series C No. 112.
[56]
“Inter-American Convention on the Prevention, Punishment, and Eradication of
Violence against Women, (Convention of Belém do Pará),” adopted June 9, 1994, Organization of American States, Arts.
1-2, https://www.oas.org/en/mesecvi/docs/BelemDoPara-ENGLISH.pdf.
[57]
Ibid. at Art. 2(a)-(b).
[58]
“Convention of Belém do Pará, Status of Signatures and Ratifications,” Organization of American States, accessed
May 1, 2019, https://www.oas.org/en/mesecvi/docs/Signatories-Table-EN.pdf.
[59] “Country Reports on Human Rights Practices for 2018: Guatemala,” United States Department of State, Bureau of Democracy, Human Rights and Labor (2018), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2018&dlid=289300; “Country Reports on Human Rights Practices for 2018: El Salvador,” United States Department of State, Bureau of Democracy, Human Rights and Labor (2018), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2018&dlid=289296;
“Country Reports on Human Rights Practices for 2018: Honduras,” United States Department of State, Bureau of Democracy, Human Rights and Labor (2018), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2018&dlid=289306; “Country Reports on Human Rights Practices for 2018: Mexico,” United States Department of State, Bureau of Democracy, Human Rights and Labor (2018), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2018&dlid=289310.
[60]
“Country Reports: Guatemala” United
States Department of State, 18.
[61]
“Country Reports: Honduras,” United
States Department of State, 17; “Country Reports: El Salvador,” United States Department of State, 16.
[62]
“Country Reports: El Salvador,” United
States Department of State, 16; “Country Reports: Honduras,” United States Department of State, 17.
[63]
“Country Reports: Mexico,” United States
Department of State, 24.
[64]
Ibid.; “Country Reports: El Salvador,” United
States Department of State, 18; “Country Reports: Mexico,” United States Department of State, 26.
[65]
“Country Reports: Honduras,” United
States Department of State, 19.
[66]
Ibid.; “Country Reports: El Salvador,” United
States Department of State, 18; “Country Reports: Mexico,” United States Department of State, 26.
[67]
Ibid; “Country Reports: Guatemala” United
States Department of State, 16.
[68] “Mafia of the Poor: Gang Violence and Extortion in Central America,” International Crisis Group, Report 62, Latin America and Caribbean (April 2017), accessed at: https://www.crisisgroup.org/latin-america-caribbean/central-america/62-mafia-poor-gang-violence-and-extortion-central-america; “El Salvador’s Politics of Perpetual Violence,” International Crisis Group, Report 64, Latin America and Caribbean (December 2017), accessed at: https://www.crisisgroup.org/latin-america-caribbean/central-america/el-salvador/64-el-salvadors-politics-perpetual-violence/.
[69] Rachel Dotson and Lisa Frydman, “Neither
Security Nor Justice: Sexual and Gender-Based Violence and Gang Violence in El
Salvador, Honduras and Guatemala,” KIND
(May 2017).
[70] “Saving Guatemala’s Fight Against Crime and Impunity,” International Crisis Group, Report 70, Latin America and Caribbean (October 2018), accessed at: https://www.crisisgroup.org/latin-america-caribbean/central-america/guatemala/70-saving-guatemalas-fight-against-crime-and-impunity.
[71] Velásquez
Rodríguez Case, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), Inter-American
Court of Human Rights (IACrtHR), (29 July 1988).
[72] See
Velásquez Rodríguez Case; UN Committee on the Elimination of Discrimination
Against Women (CEDAW), Report on Mexico produced by the Committee on the
Elimination of Discrimination against Women under article 8 of the Optional
Protocol to the Convention, and reply from the Government of Mexico (27 January
2005), CEDAW/C/2005/OP.8/MEXICO.
[73] I/A Court H.R., The “Street Children” Case (Villagrán Morales et al.), Judgment of
November 19, 1999, Series C No. 63, para. 188, para 196.
[74]
Maria da Penha Law, Law No. 11.340, August 7, 2006, Art. 6, [translated at p.
10], https://learningpartnership.org/sites/default/files/resources/pdfs/Brazil-Maria-Da-Penha-Law-2006-English_0.pdf.
[75]
Ibid. at Art. 8(IV).
[76]
Ibid. at Art. 8 (VIII)-(IX).
[77]
Ibid. at Arts. 9-12.
[78]
1951 Geneva Convention Relating to the Status of Refugees, Article 33 (1).
[79] See e.g. MSS v. Belgium and Greece, 30696/09, European Court of Human
Rights, 1, 12 (2011) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-103050%22]};
Rights and Guarantees of Children in the
Context of Migration and/or in Need of International Protection,
Inter-American Court of Human Rights, Advisory Opinion OC 21/14 of August 19,
2014, 1, 83, http://www.corteidh.or.cr/docs/opiniones/seriea_21_eng.pdf.
[80]
Geneva Convention Art. 33 (1).
[81] MSS v. Belgium and Greece, ECtHR 2011,
at 12, citing UNHCR Note on International Protection of 13 September 2001
(A/AC.96/951, para. 16).
[82] UN General Assembly, Declaration on
Territorial Asylum (14 December 1967), A/RES/2312(XXII); UN High Commissioner
for Refugees (UNHCR), Conclusion on International Protection No. 85 (XLIX) –
1998, 9 October 1998, No. 85 (XLIX) – 1998; UN High Commissioner for Refugees
(UNHCR), General Conclusion on International Protection No. 99 (LV) – 2004, 8
October 2004, No. 99 (LV) – 2004.
[83] International Covenant on Civil and Political
Rights, Article 13.
[84] UN General Assembly, Office of the United
Nations High Commissioner for Refugees : resolution / adopted by the General
Assembly, 24 February 1995, A/RES/49/169.
[85]
“Cartagena Declaration on Refugees,” Adopted 19-22 November 1984 by the
Colloquium on the International Protection of Refugees in Central America,
Mexico and Panama, United Nations High
Commissioner on Refugees, Art. III (3),https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf.
[86] Rights and Guarantees of Children in the
Context of Migration and/or in Need of International Protection,
Inter-American Court of Human Rights, Advisory Opinion OC 21/14 of August 19,
2014, 31, Footnote 20, http://www.corteidh.or.cr/docs/opiniones/seriea_21_eng.pdf.
[87] UN High Commissioner for Refugees (UNHCR),
Handbook and Guidelines on Procedures and Criteria for Determining Refugee
Status under the 1951 Convention and the 1967 Protocol Relating to the Status
of Refugees (December 2011), HCR/1P/4/ENG/REV. 3.
[88] Canada
(Attorney General) v Ward (1993), Regina
v. Secretary of State For the Home Department, Ex Parte Adan (UKHL, 1998).
[89] In
re Fauziya Kasinga, 21 I&N Dec. 357 (BIA 1996), Matter of Villalta, 20 I&N Dec. 142 (BIA 1990), Matter of Acosta, 19 I&N Dec. 211,
222 (BIA 1985), citing Mc.Mullen v. INS,
658 F.2d 1312,1315 n.2 (9th
Cir. 1981); Rosa v. INS, 440 F.2d
100, 102 (1st Cir. 1971); Matter
of McMullen, 17 I&N Dec. 542, 544-45 (BIA 1980); Matter of Pierre, 15 I&N Dec. 461, 462 (BIA 1975).
[90] UN High Commissioner for Refugees (UNHCR),
Guidance Note on Refugee Claims Relating to Victims of Organized Gangs (31
March 2010), paras 12-17.
[91] Ibid para 28.
[92] Ibid para 31.
[93] Matter of S-E-G-, et al., 24 I&N Dec.
579 (BIA 2008), United States Board of Immigration Appeals (30 July 2008).
[94] Human Rights Committee general comment No.
28 (2000) on article 3 (The equality of rights between men and women), para.
11.
[95] Matter
of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014), Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008); Matter of SA-, 22
I. & N. Dec (BIA 2000); Minister for
Immigration and Multicultural Affairs (MIMA) v Khawar (2002), Islam (A.P.)
v. Sec’y of State for the Home Dep’t, and Regina v. Immig. App. Tribunal &
Another, Ex Parte Shah (A.P.), [1999] UKHL 20, [1999] 2 A.C. 629 (H.L.).
[96] Brief for Respondents as Amicus Curiae,
Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
[97] Grace v. Whitaker, No. 18-cv-01853 (EGS)
(D.D.C. Dec. 17, 2018).
[98] Rosalba
Aguirre-Cervantes a.k.a. Maria Esperanza Castillo v. Immigration and
Naturalization Service, U.S. Court of Appeals for the 9th Circuit, (21
March 2001).
[99] UN High Commissioner for Refugees (UNHCR),
Conclusion on Children at Risk No. 107 (LVIII) – 2007, 5 October 2007, No. 107
(LVIII) – 2007.
[100] UN High Commissioner for Refugees (UNHCR),
Guidelines on International Protection No. 8: Child Asylum Claims under Articles
1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the
Status of Refugees, 22 December 2009, HCR/GIP/09/08.
[101] “Convention on the Rights of the Child,”
opened for signature 20 November 1989, United
Nations G.A. Res. 44/25, Art. 3(1), https://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf.
[102] Ibid. at Art. 22(1).
[103] Jason M. Pobjoy, “The best interests of
the child principle as an independent source of protection,” International Comparative Law Quarterly
(2015), 64(2), 327.
[104] Rights and Guarantees of Children in the
Context of Migration and/or in Need of International Protection,
Inter-American Court of Human Rights, Advisory Opinion OC 21/14 of August 19,
2014, http://www.corteidh.or.cr/docs/opiniones/seriea_21_eng.pdf,
at 79-95.
[105]
Ibid. at 94-95.
[106]
Ibid. at 24 [internal citations omitted].
[107]
Ibid. at 32-33.
[108]
Ibid. at 32-33, 34.
[109] Ibid. at Art. 37(b).
[110] Ibid. at Art. 37(c).
[111] General Assembly of the United Nations,
Resolution 429 (V) of 14 December 1950.
[112] Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Inter-American Court of Human Rights, Advisory Opinion OC 21/14 of August 19, 2014, 60, http://www.corteidh.or.cr/docs/opiniones/seriea_21_eng.pdf, citing Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/02 of August 28, 2002, para. 71; Case of Fornerón and Daughter v. Argentina, Merits Reparations and Costs, Judgment of April 27, 2012, para. 46.
[113] Troxel v. Granville, 530 U.S. 57, 65
(2000). See also Parham v. J.R., 442
U.S. 584, 602 (1979) [“Our jurisprudence historically has reflected Western
civilization concepts of the family as a unit with broad parental authority
over minor children.”].
[114]
Ibid. at 65-66 [internal citations omitted].
[115] Ms. L v. U.S. Immigration and Customs
Enforcement, Case 3:18-cv-00428-DMS-MDD, Order Granting Plaintiffs’ Motion for
Classwide Preliminary Injunction, (S.D. Cal. 2018),
https://www.aclu.org/sites/default/files/field_document/83_order_granting_pi.pdf.
[116] INA
§ 208(a)(1) / 8 U.S.C. § 1158(a)(1).
[117]
Ibid. at (a)(2)(E), referencing exceptions in (2)(A)-(B); Unaccompanied Alien Child (UAC)
is defined in the relevant statues as: “a child who: (A) Has no lawful
immigration status in the United States; (B) Has not attained eighteen (18)
years of age; and (C) With respect to whom: (i) There is no parent or legal
guardian in the United States; or (ii) No parent or legal guardian in the
United States is available to provide care and physical custody.” “Homeland
Security Act,” 6 U.S.C. 279(g)(2); “William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008,” HR 7311, 110th Congress, 2nd
Session, January 1, 2008 at § 235(g), https://www.state.gov/j/tip/laws/113178.htm. [Hereinafter cited as TVPRA.].
[118] INA
101(a)(27)(J) / 8 USC 1101(a)(27)(J); For more information, see “Special
Immigrant Juveniles,” U.S. Citizenship
and Immigration Services, Last Updated April 10, 2018, https://www.uscis.gov/green-card/sij.
[119] The INA in 8 USC 1158(b)(3)(C) specifies
that an asylum officer has initial jurisdiction over claims by unaccompanied
minors and asylum officers must conduct interviews in a non-adversarial manner
(8 CFR 208.30(d)). [“An asylum officer…shall have initial jurisdiction over any
asylum application filed by an unaccompanied alien child (as defined in section
279(g) of title 6), regardless of whether filed in accordance with this section
or section 1225(b) of this title]: 8 USC 1225(b) [addressing the processing of
arriving noncitizens who have not been admitted or paroled into the United
States.]
[120] The
government and lawyers for the plaintiffs in the case, Flores v. Reno, reached an agreement after years of
litigation. The agreement outlines
conditions that must be met for holding children in immigration detention. Flores
v. Reno, Settlement Agreement, CV 85-4555-RJK (C.D. Cal.), https://www.aila.org/File/Related/14111359b.pdf.
[121]
Ibid. at para. 9.
[122] Ibid. at para. 14.
[123]
Ibid. at Exhibit 1.
[124]
Ibid.
[125] See e.g. Flores v. Sessions III, 2:85-cv-04544-DMG-AGR, (C.D. Cal. 2018), Order re Plaintiffs’ Motion to Enforce Class Action Settlement, https://www.aila.org/File/Related/14111359ae.pdf.
[126] For UAC to be returned to Mexico or
Canada, the criteria enumerated in TVPRA § 235(a)(2)(A) – (B) must be met.
[127]
Ibid at § 235(b)(3).
[128]
Ibid. at § 235(c)(2).
[129] INA § 208(a)-(b).
[130] INA § 241(b)(3).
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