This report addresses the situation of migrant and refugee families and unaccompanied children arriving to the southern border of the United States of America. It analyzes the context of humanitarian crises that have been taking place over the past several years in the countries of the Northern Triangle in Central America - El Salvador, Guatemala, and Honduras – as well as in Mexico. These crises have been generating increased migration northward, principally to the United States, and to a lesser extent Mexico and Canada. This report offers recommendations geared towards assisting the United States in strengthening its efforts to protect and guarantee the rights of the diverse group of persons in these mixed migratory movements – among them, migrants, asylum-seekers and refugees, women, children, families, and other vulnerable persons and groups in the context of human mobility.
In recent years, the Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission,” “Commission,” or “IACHR”), through its various mechanisms, has documented with concern the increasing number of persons, including children, fleeing various forms of violence in countries of the Northern Triangle of Central America – El Salvador, Guatemala and Honduras – and Mexico. This violence, along with other factors, such as poverty, inequality, and various forms of discrimination, has led to the current state of humanitarian crises in the region. In its report on the Human Rights of Migrants and Other Persons in the Context of Human Mobility in Mexico (2013), the Commission documented, among other issues, the serious violence, insecurity, and discrimination that migrants in an irregular situation in Mexico encounter, in addition to troubling State responses such as immigration detention and deficiencies in due process guarantees for migrants and other persons in human mobility. In its Report on Immigration in the United States: Detention and Due Process (2011), the IACHR documented with concern the United States’ response to increasing mixed migratory movements. Since the mid-1990s, this response has consisted of stepped up efforts to detect, detain, and deport migrants in an irregular situation.
Some of the most dramatic spikes seen yet in the number of arrivals of unaccompanied children and families to the United States occurred between October 1, 2013 and September 30, 2014 (“U.S. fiscal year 2014”), and specifically in the months of May and June 2014. According to official data, during U.S. fiscal year 2014, the U.S. Border Patrol apprehended a total of 68,541 unaccompanied children and 68,445 families, which represented a 77% increase in the number of arrivals of unaccompanied children and a 361% increase in families over fiscal year 2013. The majority of the arrivals of unaccompanied children and families were to the U.S. southwest border and particularly to the Rio Grande Valley of the state of Texas. The Commission considers that this drastic uptick in the number of arrivals signals a worsening human rights situation in the principal countries of origin. Official data shows that the top four countries of origin for both unaccompanied children and families were El Salvador, Guatemala, Honduras, and Mexico.
The IACHR conducted the visit to the U.S. southern border from September 29 – October 2, 2014. The visit was planned and carried out in the context of monitoring the human rights situation of arriving families and unaccompanied children with respect to their apprehension; immigration detention, in many cases over long periods of time; immigration proceedings; as well as deportations and removals. To this end, the Commission visited the Rio Grande Valley area, including McAllen and Harlingen, as well as Karnes City and San Antonio, Texas.
According to the information received, families for whom there is capacity at an immigration detention center are automatically and arbitrarily being detained for the duration of the immigration proceedings initiated against them, even in cases where the mother has passed an initial asylum screening. Other information received by the Commission indicated that unaccompanied children of Mexican origin are, in some cases, being turned around before entering U.S. soil (a practice called a “turn-back”) or U.S. officers are failing to correctly identify Mexican unaccompanied children who may have protection needs. While the Commission considers that aspects relating to the overall legal regime in place for unaccompanied children from non-contiguous countries are consistent with international standards, it remains concerned over the lack of due process guarantees and access to mechanisms of international protection for these children in immigration proceedings.
For all the sub-groups identified herein, the Inter-American Commission is concerned over allegations of sexual, physical, and verbal abuse by U.S. border officials committed while migrant and refugee children and families are in the State’s custody as well as the inadequate detention conditions at border and port of entry stations and family immigration detention centers. The Commission is also deeply concerned over expedited processing of these groups and the lack of access to legal representation in the immigration proceedings initiated against them.
The Charter of the Organization of American States (OAS) and the American Declaration of the Rights and Duties of Man constitute sources of legal obligation for OAS Member States including the United States. The organs of the international and regional human rights systems have developed jurisprudence that recognizes the rights of children, families, migrants, and refugees and asylum-seekers. International standards protect the right to equality and non-discrimination, the principle of the best interests of the child, the right to personal liberty, humane treatment during detention, due process and access to justice, consular notification, protection of the family and family life, seek and receive asylum, principle of non-refoulement, and the prohibition on collective expulsions.
The IACHR stresses that measures taken to securitize the border will not bring these crises to an end. Rather, the underlying factors generating the crises in the principal countries of origin must be comprehensively addressed. This approach must tackle the poverty, economic and gender inequality, multi-sectorial discrimination, and high levels of violence in El Salvador, Guatemala, Honduras, and Mexico. Without national and regional efforts to address such factors, mixed migratory movements will only continue. Without the ability to migrate safely and through more open or regular channels, these persons will be forced to take even more dangerous and clandestine routes in order to bypass increasingly securitized borders. Such new routes increase the likelihood that persons in the context of human mobility will fall victim to violence and exploitation at the hands of organized crime groups.
Based on its close analysis of the situation of migrant and refugee unaccompanied children and families arriving to the southern border of the United States of America, in the present report the Inter-American Commission issues a series of recommendations to the State. The IACHR notes and commends the United States for its sustained efforts to receive and resettle thousands of asylum-seekers and refugees from all over the world, year after year. In light of the State’s global position as a leader on protecting the rights of persons in need of international protection, it is the IACHR’s hope that the conclusions and recommendations contained in this report will assist it in upholding its human rights obligations and its commitment to serve as a refuge for many thousands of persons each year. In this regard, the Commission urges the State to end its practice of automatic and arbitrary immigration detention of families; to treat Mexican unaccompanied children with the same safeguards and procedures applicable to unaccompanied children from non-contiguous countries; to investigate claims of abuses and mistreatment committed by U.S. border agents and to prosecute and punish, where necessary, the agents responsible; to ensure that the best interests of the child principle is the guiding principle in all decisions taken with respect to children, including in immigration proceedings; and to ensure migrant and refugee children and families enjoy due process guarantees and are provided with a lawyer, if needed, at no cost to them if they cannot cover the costs on their own; among other recommendations developed in this report.
Map of the Commission’s Visit to the U.S. Southern Border
