OAS/Ser.L/V/II. 155
Document published thanks to the financial support of the Central America and Mexico Migration Alliance (CAMMINA). The positions herein expressed arte those of the Inter-American Commission on Human Rights (IACHR) and do not reflect the views of CAMMINA.
*In keeping with Article 17(2) of the Commission’s Rules of Procedure, Commissioner James L. Cavallaro, a national of the United States, did not participate in the discussion of, research and deliberations on, and approval of this report
EXECUTIVE SUMMARY 7
INTRODUCTION 12
i.Scope and Objectives of the Report 12
ii.Actions of the Inter-American Commission on Human Rights Including the Visit to the Southern Border of the United States of America 14
iii.Structure and Methodology 20
iv.Preparation and Approval of the Report 21
v.Observations of the United States of America on the Report 21
RELEVANT INTERNATIONAL STANDARDS ON THE HUMAN RIGHTS OF MIGRANTS, ASYLUM-SEEKERS, AND REFUGEES 27
vi.Principle of the Best Interests of the Child 32
vii.Right to Personal Liberty 36
viii.Standards Applicable to Members of Vulnerable Groups within Mixed Migratory Movements 41
ix.Asylum-seekers 41
x.Families 42
xi.Principle of the Non-deprivation of Liberty of Children 44
xii.Right to Humane Treatment during Detention 46
xiii.Right to Due Process and Access to Justice 47
xiv.Right to Consular Notification 48
xv.Rights to Family Life and Protection of the Family Unit 51
xvi.Right to Seek and Receive Asylum 52
xvii.Principle of Non-refoulement and the Right to be Free from Persecution or Torture 53
xviii.Prohibition on Collective Expulsions 55
SITUATION OF MIGRANT AND REFUGEE FAMILIES AND UNACCOMPANIED CHILDREN IN THE UNITED STATES OF AMERICA 58
xix.Families with Children 74
xx.Legal Regime and Actions Taken by the State in Regard to Families 75
xxi.Main Observations and Concerns Regarding the Treatment of Families 79
xxii.Prior to and following the visit, one of the Commission’s top concerns has been the application of an automatic, arbitrary, and mandatory regime of family immigration detention for those families for whom there is space available at an immigration detention center. The Commission notes that, but for capacity limitations, all families would be detained under current policy; however, given the limitations, those families that have a relative present in the United States with whom they can stay for the duration of their immigration proceedings are sent to the custody of that relative when there is no space available at a detention center. No substantive criteria are used, nor is an individualized assessment conducted (beyond that limited to finding a host for the family), to determine which families will be detained versus those that will be released on recognizance to a sponsor. 79
xxiii.Lack of Due Process and Fair Trial Guarantees 90
xxiv.Unaccompanied Children 91
xxv.Main Observations and Concerns Regarding the Treatment of Unaccompanied Children from Mexico 93
xxvi.U.S. practice of “turn-backs” violate the human rights of Mexican unaccompanied children 93
xxvii.Incorrect application of the law: Mexican unaccompanied children as subjects who may require international protection 95
xxviii.From Non-Contiguous Countries 98
xxix.Main Observations and Concerns Regarding the Treatment of Unaccompanied Children from Non-Contiguous Countries 106
i.Deficiencies in detention conditions at holding facilities 107
xxx.Allegations of abuse and mistreatment of children while in CBP custody 109
xxxi.Due process and fair trial violations 110
xxxii.Post-release follow-up and assistance with orientation and integration 113
CONCLUSIONS AND RECOMMENDATIONS 116
xxxiii.Recommendations for Unaccompanied Children from Mexico 120
xxxiv.Recommendations for Unaccompanied Children from Non-Contiguous Countries 123
xxxv.Shared Recommendations with regard to the Three, above-identified Groups 124
xxxvi.Recommendations with regard to the U.S. Immigration System 125
xxxvii.Recommendations with regard to Regional Collaboration 126