Global Justice Center Blog

"That's Illegal" Episode 8: Refugee Detention and the Law

In this episode of That's Illegal, GJC President Akila Radhakrishnan and Legal Fellow Kristin Smith discuss the United States' policy of refugee detention at the border, Trump's executive order on family separation, and how it all fits in the context of international law. 

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Additional Resources:

  • President Trump’s Executive Order on Affording Congress an Opportunity to Address Family Separation, 83 Fed. Reg. 29, 435 (June 20, 2018)
  • 1951 Convention Relating to the Status of Refugees
  • Differentiating the terms Refugees’ and Migrants’– Frequently Asked Questions, U.N. High Comm’r for Refugees (Mar. 16, 2016)
  • Detention Center guidelines as set by the UNHCR
  • The Flores Settlement and Family Separation policy explained
  • Human Rights Watch report on the “The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention.” The report is an indication of how the US is failing to follow international standards.
  • Immigration Court Backlog Tool, from the Transactional Records Access Clearinghouse at Syracuse University
  • Report on US “Neglect and Abuse of Unaccompanied Immigrant Children”
  • Report on illegal criminal prosecution of asylum seekers by US state agencies 

Transcript: Refugee Detention and the Law

STEPHANIE OLSZEWSKI: Welcome to "That's Illegal!" a podcast about international law in the age of nationalism. This podcast is produced by the Global Justice Center or GJC. The Global Justice Center is a legal, human rights non-profit based in New York City. Our work focuses on moving international humanitarian laws from paper to practice. Our staff consists of lawyers with international law expertise who work regularly with partners at the EU and the UN.

LIZ OLSON: This week we're joined by GJC President Akila Radhakrishnan and Legal Fellow Kristin Smith who will be explaining the legality of Trump's policies of refugee detention at the border.

Thank you so much for joining us today. To get started, can you just give us a little bit of context about what's happening right now at the border? How is this unique in terms of US immigration policy?

KRISTIN SMITH: The Parole Directive issued in 2009 by Immigration and Customs Enforcement, which is part of the Department of Homeland Security, said that individuals who demonstrate a credible fear in their interview have the right to an individualized determination of release—while their asylum case is pending. Those who demonstrate that they are not in a flight risk or a danger to the public should be released, recognizing that continued detention in those cases is not in the public interest.

It's notable that a recent court case found that before the most recent change in immigration detention policy, 90% of asylum seekers were paroled versus almost zero percent now. You can see that there's been a big change in how that directive has been implemented. I'll note that during the Obama administration, there was also an increased use of detention in response to 2014 surge in the number of unaccompanied children and family units crossing the border. The Obama administration discontinued the use of detention as a general deterrent for illegal immigration in 2015—in response to a series of lawsuits and complaints about the conditions that women and children were held under.

In the most recent changes to immigration detention policy, there was an April memo and then more public announcement in May of 2018 in which Attorney General Jeff Sessions announced the Trump administration's “zero tolerance” policy. This policy meant that the administration would now prosecute all parents who crossed the border illegally as a crime--under the Immigration and Nationality Act—for illegal entry. That crime is a misdemeanor and it carries a six month maximum imprisonment. That means that under that crime, parents who cross the border could be imprisoned for up to six months.

The policy also meant that parents and children would be separated pending the resolution of their case for illegal entry. When children are separated, they go into the custody of a separate federal agency. As you've probably seen in the news, there's been a lot of chaos about where those children are, if they can communicate with their family, and documented trouble around reuniting children and their parents. The policy wasn't supposed to apply to asylum seekers at ports of entry, initially, but it's been well-documented that asylum seekers who crossed the border illegally were detained under the “zero tolerance” policy.

I'll note also that human rights organizations and attorneys have reported on the detention of asylum seekers and separation of families back in the summer and fall of 2017. This has been something that the Trump administration has been doing but made more official as of this spring. In June of 2018, Attorney General Sessions issued an opinion stating that most victims of personal crime do not fit the definition of a particular social group and, therefore, will not qualify for asylum. Just to note that there's been many other actions taken by the administration as part of a larger effort to impede the success of asylum claims in the United States this spring and summer.

Most recently, in response to a lot of outcry about the family separation practice and this new “zero tolerance” policy, President Trump signed an executive order on June 20th that purported to end family separations. The executive order still says that the administration's policy is to initiate proceedings to enforce criminal provisions, including those of illegal entry in the Immigration and Nationality Act. It also says that the administration's policy is to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. Lastly, it asked DOJ to file a request with a US District Court to modify the settlement agreement in Flores v. Sessions (commonly known as the Flores Settlement) in order to permit the Secretary to detain alien families through the length of their criminal proceedings for improper entry or for other immigration proceedings.

The Flores Settlement regulates what kind of detention children are allowed to be held under and what that detention can look like. It recognizes that children must be held in the least restrictive setting and a setting that's appropriate. It also determined that children must be released without delay and instituted a 20 day deadline—based on the principle of family unity and how that should be protected. It's also been previously held that family detention facilities do not comply with the requirements of that settlement. The executive order also doesn't include a plan to reunite already separated families; over 2,300 children have already been separated based on this policy. As we've seen in the news, there's been a lot of chaos in determining how those families can be reunited, and not many of them have been so far.

In June, President Trump tweeted a call for deportations with no judges or court cases saying, “We cannot allow all of these people to invade our country. When someone comes in, we must immediately, with no judges or court cases, bring them back to where they came from.” This obviously brings into concerrn due process violations. The idea that we could deport immigrants without a judge or a court case is very problematic.

There have been two recent developments in the courts about these policies that I'll quickly mention. First, on June 26, the federal judge in California ordered US immigration authorities to reunite separated families on the border within certain timeframes based on the children's age. Just yesterday, on July 2nd, a federal district court in DC issued a preliminary injunction, ordering the government to conduct individual determinations of eligibility for parole based on its own 2009 policy. (That's the parole directive I mentioned earlier.) The court agreed with plaintiffs that the government was using detention as a default policy and that parole consideration was being nearly uniformly denied without individual consideration. The plaintiffs in that case had been in detention for a year and a half and two years after having been granted asylum, while the government appealed their cases. People are definitely fighting back but a lot of concerns remain about how the policy is going to play out in practice on the border.

AKILA RADHAKRISHNAN: I think what we've seen is an extreme iteration of the Trump administration's anti-immigrant policies. What we've seen at the border are people who are fleeing their countries for a variety of reasons and are turned away or not allowed entry into the United States. They are forced to cross it illegally. When they do come over, they're put into cruel and inhuman facilities. The children are separated kept away from their parents. We've all seen the visuals of them being kept in literal cages. The images have been striking in calling attention to these policies. However, this is a larger construct of US immigration policy that started far before President Trump. I think it's important to contextualize and understand that what they are doing is incredibly illegal and immoral. But it's also been underpinned by years of US immigration policies—including those that flourished under the Obama administration.

LIZ OLSON: The issue of child detention and family separation has been all over the news. Is this legal under international law? It seems like it would constitute child abuse. Is that accurate? What are the international standards that we should be complying with?

AKILA RADHAKRISHNAN: Unsurprisingly, the US hasn't signed all of the relevant treaties that would give us the international standards. But there are few that we are party to, which provide important definitions and constructions of what rights we need to give not only to immigrants but to anyone within our borders.

The first and, perhaps, most relevant is the 1951 Refugee Convention. It defines what a refugee is. Importantly, it puts forward the principle of non-refoulement, which means that you cannot send people back to face the threats that they left. In the context of asylum law, this is what grants people the ability to leave their country and seek refuge elsewhere. It brings them protection because you can't just turn them away at the border without process. When someone presents as an asylum seeker due to a credible fear, you need to bring them into the country and allow them to make their case and an individualized determination as to their status.

There are also other human rights treaties that come into play here. The International Covenant on Civil and Political Rights—which the US is a party to—provides a range of protections, including the freedom of movement, the right to be free from cruel, inhuman, and degrading treatment, and important protections around due process. Kristin mentioned earlier that a lot of what is happening with these various policies is the deprivation of due process. There is inadequate representation; people's court cases aren't being determined on an individualized basis; they don't know the charges ahead of them; they don't know how long they're going to be detained for and what the next step in the process will be. We have due process protections in the Constitution, and those are bolstered by the international protections.

You mentioned if this constitutes the issue of child abuse. International experts who condemned the policy haven't used the words child abuse but actually used the words such as cruel, inhuman, degrading treatment, or even potentially torture. Those are protections that are contained within the ICCPR and under the Convention against Torture to which the United States is a party. It's important to note that all of these treaties have important underlying values, defining how things should be interpreted. One is the principle of non-discrimination—the idea that all of these rights need to be given to people equally and not defined or be given different categories based on certain areas.

Another one is that there is a very strong under layer of what these protections look like for children and the how your duties are enhanced. In terms of what constitutes cruel, inhumane, and degrading treatment, when you look at the standards that would be fit a child versus an adult, they are different. I think that, unquestionably, what the country is doing violates international standards and international obligations. Just recently, a broad coalition of international experts who work at the United Nations Special Rapporteur on various issues (including on the rights of migrants and xenophobia) have all called this policy illegal and called for the U.S. to change it.

There's another layer. In addition to the United Nations, the US, as a member of the Organization of American States, is also subject to regional considerations. That’s important here because this particular policy is about people coming from Central America. Not only are we bound under this treaty but the people that are coming and the countries that they're coming from are also part of the same regional system. Recently, the National Human Rights Institutions of five countries, including Mexico, El Salvador, and Honduras, filed a complaint against the United States at the Inter-American Commission on Human Rights. The Inter-American Commission has spoken out against this issue multiple times and has made strong statements—including that detention is never in the best interests of a child. In fact, in April, at the urging of human rights organizations, they held a hearing on the issue of the U.S. policies. The U.S. government didn't even bother to show up. They didn't send a representative. That’s another stark reminder of how this administration is treating these larger protections. But that doesn't mean that we can't be held accountable under them.

KRISTIN SMITH: In addition to defining a refugee, the 1951 Refugee Convention (which is the backbone of the U.S. asylum system) requires, in Article 31, that states shall not impose penalties on account of illegal entry or presence on refugees who present themselves to authorities and show good cause for their illegal entry and presence. The protections of the Refugee Convention are not differentiated based on how an immigrant enters the country. That’s important because the United States is applying these procedures to people who enter illegally and submit them to criminal prosecution, which is not contemplated under the Refugee Convention.

The UN High Commissioner for Refugees—who is tasked with monitoring the implementation of that convention—has reiterated many times that every person has the right to seek asylum and that seeking asylum is not an unlawful act. It's important to remember that these people are fleeing very difficult circumstances and persecution. They come with lots of issues that might affect their ability to approach authorities. The US border authorities are actually turning away asylum seekers, which forces them to come illegally when they're really fleeing difficult circumstances. International law protects against this differentiated treatment that underpins the administration's new policy as well.

AKILA RADHAKRISHNAN: I think you're seeing violations almost at every level—violation of points of entry along the border that don't allow you to turn people away without process. There are violations once people have crossed the border, which is holding them in indefinite detention, charging them with and engaging them in a criminal process, which is also not permitted separating families. The conditions of the detention facilities themselves constitute violations. There are international standards that apply to each of these layers, and we are, clearly, in violation of every single one.

LIZ OLSON: When discussing these issues, I hear the terms refugee, asylum seeker, migrant. I Can you explain to our listeners what the difference is between these designations? What are the implications of those differences?

KRISTIN SMITH: That's a really important question because those are different categories of people that require different levels of protection under international law. Refugees are defined and afforded specific protections by international law—based on the fact that they lack protection in their own countries. That's why they're fleeing to begin with. The universal definition of a refugee is set forth in the 1951 Refugee Convention in Article 1. A refugee is a person who—owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion—is outside the country of nationality and is unable or unwilling to avail himself of protections in that country owing to fear.

Refugees face serious consequences if returned to their home country, up to and including death. So states are internationally responsible for not returning them where their life or freedom is threatened. That's the provision on non-refoulement that we already discussed. An asylum seeker, on the other hand, is a person who is seeking sanctuary and protection in another country but whose claim has not yet been processed. They haven't yet been recognized as a refugee. It's worth noting again that everyone has the right to seek asylum under the Refugee Convention and the Universal Declaration of Human Rights. While all refugees were at some point asylum seekers, not all asylum seekers will officially become refugees—based on whether or not they successfully achieved that status.

A migrant is a broader term that refers to anyone who moves from one country to another but not necessarily because of direct threats of persecution. Migrants are often moving to seek better economic opportunity or fleeing poverty and other serious problems in their home countries. They may be seeking to reunite with family members or to flee natural disasters. They may or may not have permission to be in another country. It's important to remember that even though migrants may not have refugee status and the protections that come with it under international law, they're still entitled to general protections under human rights law.

AKILA RADHAKRISHNAN: In this specific context, I would note that the international experts from the UN who spoke out about this issue made a few important observations about what the population that's currently impacted looks like. They said that most of the migrants detained are asylum seekers from Guatemala, El Salvador, and Honduras—who have fled their countries because of insecurity violence and violations of their human rights. That designates the idea that most of the people who are seeking this are potential asylum seekers (people who are potentially refugees).

They also make the point that the vast majority of migrants are indigenous peoples or people belonging to ethnic or racial groups that are categorized as non-white in the United States. The executive order’s effect on children and their families is reserved largely for indigenous and non-white immigrants. I think that's another important component. If we go back to the requirements of international law and the requirement of non-discrimination, they're pointing out that there are all of these general categories. But if we look at the current populations that we're talking about and that's being impacted, many of them are going to be those who are asking asylum and would be deemed refugees. That population deserves special protection against discrimination.

LIZ OLSON: Recently, Trump issued an executive order, potentially, bowing to public pressure about stopping separating children from their parents. What are the implications of this executive order? On the whole, does it seem like a good thing for migrant families or potentially dangerous?  

KRISTIN SMITH: When talking about the general context of these recent policies, family detention facilities have not complied with legal requirements for how children should be treated in detention, including being released quickly. That’s going to be an issue under the executive order that would allow parents and children to be together. Another big problem is that the executive order aims to allow detention for the length of immigration proceedings, which in the case of asylum seekers, could be years that they would be left in detention. As of 2018, the immigration court backlog in the United States is almost 700, 000 cases in New York for example. That means there are almost 96,000 cases pending—with an average wait time of 688 days. That means a long time that families could be held in detention under conditions that have previously been held by courts to not comply with the requirements for holding children and families.

AKILA RADHAKRISHNAN: I would add that the conditions of the facilities themselves are important. Documentation that exists now has demonstrated that the facilities that we're talking about here (not just for children but the family detention facilities) are horrendous.

Imagine being placed in those conditions for the 20 days that may be allowed under Flores versus indefinite—as Kristin was saying, it could be two-three years in those facilities. International courts and other places, like the European Court of Human Rights, looked at detention facilities in Greece. They found that the facilities violated the right to humane treatment. The executive order, perhaps, addressed the most visceral component, which was the images of those children or, even worse, the recording that was released of the crying children being separated from their parents. At its core, it doesn't address at all the issues with the broader policy.

KRISTIN SMITH: To build on Akila’s point and give a concrete example: human rights organizations, for example, have found that health care in immigration detention facilities is substandard, leading to death when health care is neglected. They've also found that there are widespread allegations of child abuse in detention facilities. We know that mass immigration detention, based on past practice in the United States, opens the United States up to liability for a host of other human rights violations.

LIZ OLSON: Do either of you have any final thoughts or any ideas that you would like to leave our listeners with that you think we should know?

AKILA RADHAKRISHNAN: I think that one thing to keep in mind (it's very hard with this administration sometimes) is that this is part and parcel of their larger strategy when it comes to immigration. It's tied to the Muslim ban. It's tied to Jeff Sessions’ decision to make more difficult the ability to claim domestic violence for women as a basis for asylum. It's tied to denying reproductive health services to people who are held within detention facilities by the Office of Refugee Resettlement—including access to abortion services, which the courts have found to be a violation of those women's rights even though they are immigrants and they are not American citizens.

We really need to make sure that the threads are drawn across this and, I guess, not to forget the wall if it ever gets built. It’s part of the xenophobia and the misogyny that really characterize every step of what this administration wants to do and tries to do. It feels like the Supreme Court just held the Muslim ban constitutional. What can we do? How is the US ever going to be held accountable? I think that you can be held accountable.

Going back to the idea of indefinite detention, another context in which the US was responsible for indefinite detention was in Guantanamo. The US was found by our Supreme Court to be in violation of our obligations under the Geneva Conventions. The Supreme Court said you cannot hold even potential terrorists in indefinite detention without letting them know what their charges are in these dire conditions. I think it goes to show that it is possible to hold people accountable. As we slowly roll these domestic policies back, the international standards are so incredibly important for setting a metric for what the US does.

KRISTIN SMITH: One of my big takeaways is that there are a lot of due process violations that are going to result from this executive order and general concerns about the way that the administration and its recent policies treat the right to seek asylum in the United States. It’s worth noting that the percentage of asylum claims that are denied has risen over the past few years. There's a big difference in whether an asylum claim succeeds based on one's nationality. So that just is to point out that asylum claims are really difficult to prove to begin with. Immigration courts function differently than we think of how US courts function. For example, immigrants don't have the right to an attorney. Studies have found over and over again that access to an attorney and being represented is the most important thing for determining success in an asylum claim.

AKILA RADHAKRISHNAN: This includes children. So this includes toddlers who can be required to go through a deportation proceeding or any other type of immigration proceeding by themselves—with no attorney, no representation, no family.

KRISTIN SMITH: As a lawyer, that is important to me to point out. According to Human Rights First, only one in ten applicants wins their case for asylum without lawyers. That's a low percentage. With lawyers, they're five times more likely to do so. Remember that keeping asylum seekers and immigrants in detention impedes their access to a lawyer. Different organizations and court cases have found that over and over again. It’s just something to remember when we're talking about the mass detention of asylum seekers.

LIZ OLSON: To learn more about the intersection between US immigration policy and national law, check out our show notes at If you enjoyed this podcast, please tell a friend, rate, and comment on iTunes. Thank you so much for joining.

Tags: United States, Podcast