The Deportation Death Sentence: An analysis of the United States’ role in perpetuating Human Rights abuses against should-be Honduran refugees
Autor: Chelsea Naylor
Originally Published at Peace and Conflict Monitor on: 02/18/2016
Over the past decades, gang violence in the northern triangle of Central America (El Salvador, Guatemala, and Honduras) has been rising. These gangs largely originated in the United States. Immigrants fleeing civil war in their home countries banded together to defend themselves against the gangs controlling the US cities in which they relocated. When these gang members were caught and deported, they were easily able to overpower the weak, corrupt police forces in their Latin American hometowns, becoming the de facto leaders in many parts of their countries. They are now showing unprecedented strength and ruthlessness, with hundreds of civilians murdered, disappeared, tortured, raped, and kidnapped every year. Children are being raped and killed, bringing parents to fear allowing their kids outside of the house. As of 2014, Honduras boasted the highest homicide rate for a country not at war, and the 7th highest for homicides of women. The vast number of migrants crossing into the United States reflects these trends. In 2011, 974 children from Honduras were intercepted at the border. By 2013, that number had risen drastically to 6,747. A large majority of these children were sent back, to a country where death upon return is not uncommon; indeed, deportation has very nearly become a death sentence.
Despite the situation transpiring over the past years, the United States has been extremely reluctant to consider those fleeing violence from organized crime to be refugees. It is often suggested that victims simply move to another part of their own country, as Internally Displaced Persons (IDPs) rather than refugees. Yet this is rarely a realistic alternative. Gangs operate throughout the country, with cells and contacts throughout. They can be multi-national organizations, and often cover the northern triangle as a whole. Though from El Salvador, one woman applying for asylum in the United States recounted an experience commonly shared in Honduras. “‘They took their turns…they tied me by the hands. They stuffed my mouth so I would not scream.” When it was over, she said, “They threw me in the trash.’….Norma tried to find safety by going to live with her aunt and uncle in another part of El Salvador. She changed her phone number and never left the house. Nonetheless, she and her family were continually threatened. Having no other option, she and her husband decided that she should leave the country.”
The Office of the United Nations High Commissioner for Refugees has recently issued a report, Women on the Run, in which they spoke with 160 women from Guatemala, El Salvador, Honduras, and Mexico. In this report, they found that two thirds of the women interviewed tried to flee violence by moving to another location in their own country, but ultimately, the gangs were able to find them and continued their threats. In situations such as this, applying for refugee status may be the next step. According to the 1951 Convention relating to the Status of Refugees (1951 Convention), refugee status may be granted if one is able to demonstrate:
“well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
This definition of refugee status may be broken down into three main requirements. Those applying for refugee status must be (1) have a well founded fear of persecution, (2) as a cause of their membership in a certain group, (3) in a state that is unwilling or unable to protect them. The 1951 Convention defines the membership groups as those of a certain race, religion, nationality, social group, or of a certain political persuasion. States may be unable or unwilling to protect their citizens by lack of a functioning police or justice system, or failures on the governmental level. Marta Juarez, director of the UNHCR’s Americas Bureau advocated that many Latino immigrants should in fact be eligible for refugee status. She has stated that “We believe that if their cases were further analyzed, many would be recognized as refugees with a well-founded fear of persecution and lack of protection in their countries” The following sections will analyze how the common factors of many Honduran immigrants fleeing gang violence fit into the categories necessary to be eligible for refugee status.
Through their money, scope and power, gangs and cartels control and suppress the communities in which they operate. They instil fear and kill innocent civilians. Children are consistently recruited to join and serve as lookouts, move drugs, and be hitmen. If they do not comply, not only are they killed, but their families are threatened and targeted as well. The danger is even more severe for young women:
“The gangs treat women much worse than men. They want us to join as members, but then women are also threatened to be gang members’ ‘girlfriends,’ and it’s never just sex with the one; it’s forced sex with all of them. Women are raped by them, tortured by them, abused by them.”
One woman disclosed to the UNHCR how a gang kidnapped her thirteen year old grandson. When she and her family finally found him, he had been murdered and tortured, with his head cut off and body tied up. Like this thirteen year old child, it was found that nearly 58% of children that the UNHCR spoke with at the border indicated a need for international protection.
Membership of a Certain Group
Traditionally, membership in certain groups has been very clear cut, and largely based on visible identifiers. The Holocaust provides a strong example; anyone who was Jewish, homosexual, or outside the physical parameters of a perfect Aryan being, was killed. But the guidelines of group membership include not only race, religion, and nationality, but those in particular social and political groups as well. To address the new system of persecution seen with organized violence, the UNHCR suggests that the social groups be interpreted in such a way in which those holding anti-gang sentiment would be considered to be a political, social, and/or religious group, and therefore qualify for refugee protection.
“Political opinion (both expressed and implied) may manifest in various expressions of anti-gang beliefs and values: refusing forced affiliation or taxes-via-extortion; testifying or informing against the gangs; participating in community-based gang prevention and intervention activities; maintaining neutrality (especially in “hazardous” conditions); or associating with persons or social or religious groups that promote anti-gang values.”
State Unwilling or Unable to Assist
While the principle of state sovereignty has long been a guiding beacon for the United Nations, the concept of protection of innocents may be held in equal, or in the case of Responsibility to Protect, higher regard. Due to the fact that the countries in the northern triangle of Central America, in particular Honduras, are unable and unwilling to protect their own citizens, the United States and its counterparts throughout the world have not only a moral, but a legal obligation under international law to provide support to those seeking asylum. This can no longer be left up to the home states, as they have repeatedly shown that besides having insufficient resources, they are further unable to combat the gangs because many police, government officials, lawyers, and judges are actually on their payroll, and are therefore unwilling to assist as well. Throughout the country, an average of four out of five homicides go uninvestigated. In the recent UNHCR report, 60% of the women interviewed had reported their attacks, which included rape, sexual assault, threats, and physical attacks to the police, but not a single one received adequate protection. One woman they interviewed, Nelly, described how her nephew was murdered by the gangs because he refused to join. Nelly reported the murder, but explained that “The same police are working at the gang’s side…. They passed our report on to the gang, and the gang knew we’d reported them.” She and her family had to flee the country immediately.
International Human Rights Obligations
There has been great hesitancy on the part of the United States to grant refugee status because of the international guidelines the state would then be obliged to follow. The 1951 Convention, in conjunction with the 1967 Protocol relating to the Status of Refugees (1967 Protocol), states
Article 33: 1. No Contracting State shall expel or return (” refouler “) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
This concept of non-refoulement, or avoidance of returning to harm, comes from an overarching theme of jus cogens, the group of non-derogable, absolute human rights, to which every single person is entitled at all times. These rights include freedom from torture; by maintaining a principle of non-refoulement, states avoid returning a refugee to a situation in which their jus cogens rights may be violated.
A state’s obligation of non-refoulement was later solidified in the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT). Article 3 of the Convention Against Torture states that
No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
The concept of non-refoulement has become a customary norm; states must follow this principle regardless of their signatory status on the 1984 Convention Against Torture.
In addition to the rights laid out in the 1951 Convention and 1967 Protocol, and the 1984 Convention Against Torture, states are obliged to respect, protect, and fulfill a myriad of other human rights, the grave violations of which are causing much of the mass migration we currently see. Considered part of the “Bill of Human Rights”, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) lay out many of the basic rights of all humans. The ICCPR focuses on political life, including the importance of democracy, and free and fair trials. In many Honduran towns, politics and ‘democracy’ do not mean much- elections are rigged, and the winner is often little more than a puppet of the local gangs. Once immigrants have made their journey north, the United States has policies in place allowing for automatic deportation of children, without a trial. Very few children have lawyers, even though (or maybe because) in one area it was found that 97% of immigrants without an attorney lost their deportation cases, while nearly 75% of those with lawyers were granted a reprieve. The expectation that immigrants can represent themselves in a language they may not know and with no training or preparation, is a violation of all peoples’ right to a free and fair trial.
The ICESCR, though with some similarities to its sister convention, focuses primarily on the social side of human rights. Article 13 recognizes the right of everyone to an education. It shall be free and compulsory as primary education, and affordable and available in secondary. But the dominance of the gangs over communities means attending school is not a possibility for many children. In some areas, gangs run the school itself – teachers have to pay a ‘war tax’, and students pay the gangs to be able to attend. In other towns, children are instead targeted on their way to school. They may be taunted to join a gang, or may be threatened for refusing. Gang members may confuse the children for members of a rival gang, or members may choose girls among the students to be their “girlfriends”. One mother explains how after 3 girls in the town, one only 8 years old, were raped and killed, she kept her daughter inside the house, knowing it was safer than sending her children to school. In another town, nearly a fifth of the students in the local school left within the first month because the gang had infiltrated the classes.
The right to an education is also laid out in the Convention on the Rights of the Child (CRC). Children fleeing gang violence in Honduras often see many of these rights violated, but the CRC’s Optional Protocol on Children in Armed Conflict reflects some of the most severe threats against the best interest of the children. Because of the scope, power, and influence of these gangs, they operate very similarly to an armed group. The New York Times rightfully recognizes that “These children are facing threats similar to the forceful conscription of child soldiers by warlords in Sudan…being forced to sell drugs by narcos is no different from being forced into military service”
Outside of these conventions, we can see the potential-refugees’ rights being further violated in contrast to protections guaranteed in the Convention on the Elimination of Discrimination Against Women (CEDAW), the American Convention on Human Rights, the Cartagena Declaration, the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, among many others.
Global politics are changing, and gangs now constitute a true source of persecution against thousands of people. The United States must change its policies to adhere to its international law obligations in protecting children fleeing persecution in Honduras. While it signed on to the Protocol of the Refugee Convention in 1968, and the provisions in 1980, by refusing to recognize these children as refugees, the United States is still not implementing that to which it agreed. In discussing options, we must note the importance of handling each child on a case by case basis. Violence related to gangs may no longer be a blanket reason for denying refugee or amnesty status. All children’s cases are different, and must be handled as such.
It is important to remember that though states are required to oblige with non-refoulement and not send refugees back to a dangerous situation, they are not required to host them themselves. The United States may improve its international agreements to engage local, stable nations in sharing the burden of handling the increase in refugees. Though this option is not without its faults, it may be one of the best choices for humanely protecting the rights of so many people.
The United States has recently announced changes to its immigration policy, in an apparent attempt to better serve the thousands of asylum seekers hoping to obtain refugee status. The U.S. will now be partnering with the United Nations High Commissioner on Refugees (UNHCR), to pre-screen asylum seekers before their cases are presented to the United States for approval. Through this partnership, Latino citizens may be able to apply for refugee status from the United States before they enter, staying in ‘safe zone’ holding facilities while awaiting approval. This is a break from the regulations on refugees laid out in the 1951 Refugee Convention, Article 1(a)(2), which defines a refugee as one who is already outside of their country. While a seemingly beneficial plan to assist potential refugees, there is great reason to maintain skepticism as to the altruistic and international-law abiding intentions of this policy. The announcements come at the same time as massive deportation raids occur throughout the country, begging the question of how much the United States is truly interested in the rights of asylum seekers. Further, the state department has not outlined how many more refugees would be admitted under this extension, clarifying only that applicants would not need to have a family member already in the United States to apply. Wendy Young, president of Kids in Need of Defense (KIND), articulated this hypocrisy, stating that
“We can’t at the same time be reneging on our asylum obligations to those who seek protection in the US by engaging in harsh raids, invading people’s homes, incarcerating them, and sending them back to that very same violence, especially when we haven’t in many cases exercised appropriate due process and fair adjudications of their asylum claims”
The NYTimes further explains the flaws of a program such as the proposed explaining
“The refugee program moves slowly, and under an initiative the administration began last year allowing children to apply in their home countries for refugee status, more than 6,000 young people have applied, but only five have arrived so far in the United States, according to the U.S. Committee for Refugees and Immigrants, a nongovernmental organization.”
The primary need within the United States is for a change and improvement in policies. Border agents are not taking the time required to ask the proper questions of the children to determine if they qualify for protection. For those who do seek protection, 7 out of 10 asylum requests are currently being denied; in 2012 only 29,000 people were granted asylum.
The United States has shown its ability to take in and care for refugees before. Cambodians and Haitians alike enjoyed humanitarian parole procedures, while policies were enhanced to make applying for refugee status easier for thousands of people from Cuba, Iraq, Vietnam, and the former Soviet Union. Yet now, when our neighbors to the south need it the most, the US has slashed the number of refugees from around the world it allows from 90,000 to 70,000, and frequently does not fill even the reduced quota.
The United States cannot continue to turn a blind eye on the thousands of children fleeing horrific and gross violations of their human rights at the hands of gang and cartel members. They are refugees, and not only deserve, but are legally entitled, to be treated and protected as such. The United States must change and update its policies to ensure that every child crossing is given a free and fair trial to determine if they are in need of international protection. The US is a world leader – when it comes to children’s human rights, it’s time it starts acting like one.
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Bio: Chelsea Naylor is currently a candidate for a M.A. in International Law and Human Rights, after years as a director in the non-profit sector. Her research and work interests focus on Human Rights in Latin America.