By Galya B. Ruffer and Lory D. Rosenberg
After long hours of working out the logistics of the bond arrangements, the Artesia legal defense team was pleased to hear that the first mother and daughter were released from the federal detention center in Artesia, N.M., enjoying a happy meal, en route to El Paso to catch a greyhound bus to reunite with their relatives. That was August 19th. The news circulated among the mothers and children, there was hope. Those who were found to have a credible fear of persecution would be released on bond pending resolution of their asylum claims. How now to tell those same mothers and children, whose joy and relief could be heard over the phone after they were safely reunited with family, that the government was now appealing the bond decision and that, if successful, they would have to return to the detention center. How could this be?
It shouldn't be this way.
While we applaud the recent news that the Obama plan to allow 4,000 young children from Central American countries to apply for refugee status in the United States (NYT, September 30, 2014), we remain concerned that the administration's hardline policy of penalizing mothers and children who are fleeing to the United States in search of safety - in particular the indiscriminate appeal of judicial orders releasing them from custody - harkens back to a time the United States had not joined the world community in committing to a cooperative system of surrogate protection for individuals whose home countries could not, or would not, protect them from persecution, torture and the corresponding displacement that accompanies such mistreatment.
We should be long past that dark period, given that we have had dispositive laws and policies in place for nearly 25 years. Ignoring or shrinking from our responsibilities under the Refugee Act of 1980 creates an imminent danger that other signatory countries to the 1951 Refugee Convention and 1967 Protocol will become complacent about their obligations at a time when we need more countries actively on board. We can see this effect happening in Mexico where the U.S. pressure to stem the tide of those fleeing murder, extortion, sexual abuse and gender based violence in Central America has resulted in Mexico "sweeping them off trains, setting up more roadway checkpoints and raiding hotels and flophouses" (NYT, September 22, 2014). On this 30th Anniversary of Latin America's Cartagena Declaration, the instrument setting high standards for our region's strong asylum tradition, Mexico should be affording the people fleeing Central America a safe and fair path to asylum, not deporting them. It shouldn't be this way.
As pro bono counsel working with the American Immigration Lawyer's Association Pro Bono Project at the federal detention center in Artesia, New Mexico, we felt Artesia could have been Oswego, N.Y., August 1944, when 982 European refugees aboard the U.S. Army Transport Henry Gibbins arrived at Fort Ontario, a former army camp authorized to serve as a temporary haven pursuant to an executive order issued by President Franklin Delano Roosevelt
The Oswego refugees, many women and children, were flocking to Italy from the Balkans and Central Europe, paying smugglers to get across unwelcoming borders, and hampering our military efforts by clogging the roads and needing to be housed and fed. The selected refugees started out as unwanted guests who had to verify their understanding no entry visa would be issued. They remained detained until January 1946 when Truman finally signed an executive order allowing their admission as part of an annual displaced persons quota. At that point, the town cheered, having been won over by the refugee's plight. Those unwanted refugees went on to become U.S. citizens and contributors to our society - radiologists, veterinarians, teachers, lawyers, pharmacists, poets, mothers and fathers.
A similar drama is playing out in the lives of the women and children detained in Artesia, but the lessons of Oswego seem lost. And today, the government's use of detention and a no-bond policy to deter asylum seekers conflicts with our asylum law. It is contrary to statutory provisions that allow people fleeing persecution to enter our country without prior authorization (even by paying a smuggler or using false documentation) as long as, within a reasonable time, they present themselves to a border officer and seek asylum. In detaining women and children under a no-bond policy, the U.S. is circumventing the intent of the law to provide entry to those fleeing persecution and in need of asylum.
We are setting the worst possible example for the world by jailing mothers and their children to make a policy statement ostensibly intended to stem migration flows. In the absence of a viable third-country or in-country system set up to process the large numbers of refugees fleeing Central America, these mothers and children have no other option but to cross the U.S. border and request asylum. We ask countries the world over to accept refugees from nearby war-torn regions, but have failed to take leadership in facilitating the acceptance of refugees in our own region.
Instead of setting a no-bond policy under the guise of protecting "national security" and fast-tracking the deportation hearings of the mothers and children fleeing Central America through Mexico, the U.S. should be a leader in offering meaningful protection from harm. We need to establish a viable program that observes due process principles and comports with our asylum laws, as well as with the spirit of international refugee treaties. We need to implement it in cooperation with our regional neighbors so that the conditions giving rise to violence and exploitation along the way by criminals and smugglers are eradicated.
It is imperative that we stop jailing mothers and children systematically in so-called family detention centers, where they face continued fear and uncertainty instead of safety and succor. It shouldn't be this way.
Galya Ruffer is the director of the Center for Forced Migration Studies at the Buffett Center for International and Area Studies at Northwestern University and co-editor of Adjudicating Refugee and Asylum Status: The Role of Witness, Expertise, and Testimony.
Lory D. Rosenberg is the founder of IDEAS Consultation and Coaching, empowering successful immigration lawyers, and a former immigration appeals judge on the U.S. Board of immigration Appeals.