Human Rights Situation of Refugee and Migrant Families and Unaccompanied Children in the United States of America

xv.Rights to Family Life and Protection of the Family Unit

93. 
    The IACHR has previously highlighted the fact that the principle objective of Articles V, concerning the right to the protection of the law against abusive attacks upon private and family life, and IX, providing that “every person has the right to the inviolability of his home,” of the American Declaration is to protect individuals from unwarranted intrusion by the State.¹⁰⁶ The IACHR has highlighted that the principal objective of these rights is to “protect individuals from arbitrary action by State authorities which infringes in the private sphere,” where “arbitrary action” has been determined to mean elements of injustice, unpredictability, and unreasonableness.¹⁰⁷
    

94. 
    These rights, therefore, have important implications on immigration enforcement actions and require that States refrain from enforcing immigration laws in the home, as immigration violations ought not to be construed as criminal offenses, and to consider and employ alternatives to detention, protect migrant parents from losing custody of their children on the sole basis of the parent’s detention, and factor the best interests of the child into the decision on whether to remove a migrant parent.¹⁰⁸
    

xvi.Right to Seek and Receive Asylum

95. 
    Article XXVII of the American Declaration provides that, “Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.”
    

96. 
    Further, the Commission has repeatedly established that, in order to comply with Article XXVII, domestic procedures by which a refugee seeks asylum must be adequate and effective.¹⁰⁹ At a minimum, the Commission has held that Article XXVII ensures an asylum seeker a hearing that complies with basic due process standards to determine refugee status.¹¹⁰ The Commission has previously expressed that the “act of hearing the person,” who claims to be at risk of persecution, is “the most fundamental element of the right to seek asylum.”¹¹¹ In this regard, the Commission has also paid close attention to ensuring that States properly inform migrants of the possibility and process for presenting a claim for international protection.
    

xvii.Principle of Non-refoulement and the Right to be Free from Persecution or Torture

97. 
    In accordance with Articles I, XXV, and XXVII of the American Declaration, Article 22(8) of the American Convention, and Article 33(1) of the United Nations Convention relating to the Status of Refugees (1951) (“the 1951 Convention”)¹¹², the principle of non-refoulement constitutes the cornerstone of the international protection of refugees and asylum seekers and other persons in similar situations. In pertinent part, Article 33(1) of the 1951 Convention establishes that “[n]o 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.” The Commission has previously applied this definition of non-refoulement and has found it, in conjunction with Article 22(8) of the American Convention¹¹³, to be instructive in interpreting Article XXVII of the American Declaration, which by its own terms takes into account developments in the corpus of international refugee law¹¹⁴:
    

Article XXVII. Every person has the right, [], to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements (emphasis added).

98. 
    Subsequent to the 1951 Convention, international law has incorporated non-refoulement protection to all individuals, regardless of whether the individual qualifies for international protection. Article 3(1) of the UN Convention Against Torture, to which the US is a State Party¹¹⁵, provides:
    

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.

99. 
    The Inter-American Commission reaffirms that, under international law, States must have effective substantive and procedural safeguards in place to identify and protect the rights of individuals eligible for asylum. To this end, the Commission has outlined the contours of the obligation of non-refoulement to require that States do not return persons at risk of persecution to the country of persecution, as well as to ensure that State policies and practices provide sufficient mechanisms to identify such claims and make the relevant administrative and judicial determinations with the corresponding due process guarantees.¹¹⁶
    

100. 
     Further, the Commission has established that the right to non-refoulement obligates a State not only to prevent the removal of a refugee directly to a country of persecution but also indirectly through a third country (referred to as “indirect refoulement” or “chain refoulement”).¹¹⁷
     

1. Principle of Non-refoulement at International Borders

101. 
     The principle of non-refoulement also applies to asylum seekers and refugees whose status has not yet been determined; refugees who have not yet been recognized officially as such; as well as by those who assert their right to seek and receive asylum and who are either on an international border or have crossed it without being admitted officially or legally into the territory of the State.¹¹⁸ Importantly, the Commission has highlighted that the principle of non-refoulement “necessarily requires that such persons cannot be rejected at the border or expelled without an adequate and individualized examination of their claim.”¹¹⁹