The Immigrant Rights Advocates were led by Witness at the BorderPublication: open letterJanuary 17th, Dr. Martin Luther King Jr. Day was observed. His family urged the Biden Administration to honor his memory and to uphold the rights of migrant survivors of family separation to full damages and restorative Justice. These advocates argue that these steps should include the establishment of a truth commission to investigate both sides of the border for serious human rights violations. This is especially relevant given the ongoing celebrations of Black History Month.
The Interagency Task Force on the Reunification of Families created by President Joe Biden’s February 2021 executive orderIt is a necessary but insufficient step towards more comprehensive remedies that correspond to Trump-era family seperation cases. The administration’s duty to take these steps is being drastically undermined by its current policies.
The Trump administration’s policies of family separation were clearly unconstitutional, violating fundamental rights of family integrity and substantive due process. They also included practices which violated the U.S.’s obligations pursuant to international law. These acts were equivalent to torture and forced disappearancesAccording to leading legal and clinical experts.
Such practices have been defined as “crimes against humanity” pursuant to Article 7 of the Rome StatuteInternational Criminal Court. All victims of these human rights crimes have the right to just and appropriate remedies. International crimes of this order of magnitude trigger state duties to fully redress victims’ rights to truth, justice, and to material and symbolic forms of reparation, as well as guarantees of non-repetition, according to internationally recognized standards.
No administration, and no public official has the “discretion” or “option” to promote or implement policies that are unconstitutional and/or which violate international human rights standards. This is especially so, as in the cases of family separation during the Trump era, where the acts at issue (forced disappearances and torture) rise to the level of “crimes against humanity.”
Thus, it is especially appropriate that the Biden administration take full measures to respect, protect, and fulfill victims’ rights to memory, justice, full reparations and restorative justice in Dr. King’s memory. His universalist commitment and foundational commitment to human rights and reparations for historical crimes against peoples of African descent in the U.S. highlight the urgent need for these principles to be honored not only in the context anti Black racial injustice but also in the context crime against humanity on the border.
Because of the persistent problems, the Biden administration should take urgent remedial measures in this context. disproportionate impact of U.S. immigration policy and border policy on communities of color. Family separation, and the continued use of Title 42 and the “Remain in Mexico” policy as pretexts for the negation of the right to seek asylum, reflect these continuing legacies today, with the active complicity (and thus ultimate responsibility) of both U.S. and Mexican authorities.
Historical Origins and Continuing Legacies for Family Separation
Racism and fear have been eradicated intertwined, guiding threadsU.S. immigration policies and border policies since their creation. This includes the origin of forced family separations. in the African slave trade and African slavery, and in genocidal policies imposed by European settler colonialism against Indigenous communitiesAll across North America
These led to compulsory residential or board schools for Indigenous children, continuing abuses within family and child welfare systems, administration of orphanages and adoptions. The overall objective of these policies, as in Canada and Australia under similar circumstances, was to “assimilate” these children by destroying their identities. Trump’s family separation policies shared key features of these long-standing genocidal practices.
Mass deportation of persons of Mexican origin These destructive mechanisms of family separation were reproduced in the 1930s and 1950s through detention and deportation. They have resurfaced with the advent of the internet. recent mass deportations of Haitians During the last few months, the Biden administration carried out similar practices. Similar practices that resulted in the involuntary seperation of families were also used during this period. internment of persons of Japanese originBetween 1942 and 1945. The Trump administration’s family separation policies embodied all of the most regressive, convergent characteristics of these oppressive practices.
These legacies can be seen in the large number and diversity of migrants. African descentAnd of Indigenous origin who were among the victims of the Trump administration’s family separation policies, as reflected in the lead plaintiff in the paradigmatic Ms. Lcase (an asylum seeker originally from The Democratic Republic of the Congo), and in two of three named plaintiff families in the Wilbur P.G.case (asylum seekers of Maya Mam Indigenous origin from Guatemala), among other things.
Biden Administration Policies
Recently, the Biden administration announced its intentions to decision to withdrawTo litigate each case individually and not to participate in global settlement negotiations. More than 5,500 children and familiesThis decision may affect people who were victims of Trump’s policies. This includes many who were seeking to exercise their internationally recognized rights to seek asylum and were in effect punished for this by being subjected to both the forcible separation of their families and to detention under inhumane conditions, pursuant to Trump’s “zero tolerance” policy, and more recently through mechanisms such as Title 42 and the Remain in Mexico policy.
The administration has “denounced the prior practice of separating children from their families at the U.S.-Mexico border” and “condemn[ed] the human tragedy” that ensued. But it has also argued, unconscionably, that the decision to separate and detain these families and others fell within the federal government’s “reasonable” range of discretion as to its choices in immigration policy.
It is impossible for the Biden administration to have it both ways. The practical effect of this position would be to stop further proceedings and trials in these pending case, and to deny the victims the full compensation they are entitled. This adds to the injustices that led the case filings and further aggrave the suffering and victimization these families and children.
The Biden administration has also argued that Trump’s family separation and detention policies were lawfully executed, and thus, justify immunity for those who implemented these deliberate acts of cruelty. In practice, this would likely lead to impunity for Trump officials responsible for the suffering inflicted upon thousands of migrants in June 2017 and June 2018. This would allow future administrations to continue to adopt these types of criminal policies.
Torture and Forced Disappearances
As plaintiffs have alleged, complaint filed In Wilbur P.G., et al v. U.S. in the U.S. District Court for the Northern District of California, families subjected to the Trump administration’s family separation policies were often held in separate, distant facilities that were unknown to them, and were denied the right to communicate with their fellow family members. This reproduces the kinds of paradigmatic conditions which have been defined as constitutive of “enforced disappearances,” pursuant to international human rights law and international criminal law:
These children were 6-11 years old when the government split their families. The children did not understand why they were separated from their parents. The parents didn’t know why they were separated from their children. None of the Plaintiffs had any idea if they would be reunited with family members. Plaintiffs thought that they might be deported to the United States by themselves, without any accompanying family member. All suffered extreme emotional distress when they were forcibly separated. They went on to experience additional weeks of emotional distress and continued to experience emotional distress after being reunited. This suffering was the intentional purpose of the Policy.” (para. 4, p. 3 (complaint)
Gerald GrayPsychotherapist and clinical social worker, who specializes in treating torture victims and is co-founder of the renowned Center for Justice and Accountability, stated the following in the first text Published in the U.S. by others published internationally), which argued that Trump’s policy of family separation must be understood as involving acts of forced disappearance and torture:
What is happening with the … separation of children from parents or other caretakers is one form of forced disappearance — in this case, the kidnapping of two parties instead of one. Even if the parent or caretaker knows enough of the prison staffs’ language (presumably usually English), they don’t really know most of the time where the children are, who is responsible for them and whether they care, how the childrens’ health is, and if and when they will ever see the children again.
For the children, the separation is even worse — are the parents or caretakers alive? What does the guard in prison say in a different language? What does “Chicago” mean? How can they survive bullying and sexual predation? How and when will they see their families again? An adult may sometimes temporarily have a rough idea of the location of a childrens’ prison, but without language, constant contact, and all the education required to understand geography, children have an impossible task. For the reader here, look at the clinical literature on the outcome of kidnapping or holding children as hostages.”
These arguments are further developed in the amicus brief The D.J.C.V, et al v. U.S.Case submitted for the benefit of Stanford University’s Human Rights in Trauma Mental Health Program, whose co-founders are Gray Beth Van Schaack.
This was made worse for Indigenous families who could not speak English nor Spanish proficiently. They were also denied the necessary attention in their native Indigenous languages and were repeatedly denied services and attention. Children from involuntarily separated families were held in inhumane conditions in abusive settings such as the Tornillo, Texas, Homestead, Florida, camps for migrant youth detention.
A Guatemalan consular official stated that around 40% of the thousands of Tornillo children held unjustly were of Guatemalan origin, mostly Indigenous. Many of these children were deprived of their parents’ parental rights. origins in Guatemala’s poorest and most marginalized Indigenous communitiesThe brunt of the work was done by, U.S.-backed genocide targeting these regions during Guatemala’s civil war between 1960 and 1996. Forced migration from these communities todayIt is the continuation of the same kinds of structural injustices,This led to genocide, and massive, forced displacement and exile during this period.
A member of Witness at the Border’s leadership team was able to confirm at this time that the Guatemalan children he interviewed were of Indigenous origin and required appropriate services in their native languages. suffering deeplyBecause of the mistreatment they received from U.S. officials, and the precarious conditions that characterized their confinement. Within a matter of a month, they were released. two Indigenous Guatemalan migrant children, Ages seven and eight, both died in custody of Border Patrol El Paso, Texas due to deliberate neglect of their medical needs while in confinement.
Conclusion
The Biden administration’s position in the family separation cases is a predictable result from its failure to settle the claims by thousands of victims of Trump’s illegal policies.
We must stand by the families of those who were victims and demand that they receive full accountability, reparations, as well as restorative justice, for all human rights violations relating to the forced separation of migrant families. This applies to any administration. The Biden administration’s current approach amounts to active complicity with the continuing effects of these extraordinarily serious violations.
The Biden administration is legally, morally, and ethically bound to remedy all the suffering and injuries caused by these criminal policies. This must be accomplished through a comprehensive program that provides transitional justice and restorative justice in accordance with the international standards mentioned above.
This is far beyond the scope of the Interagency Task Force for the Reunification of Families’ limited mandate. Additional, a full-fledged process of transitional justice is required, including a truth committee that can investigate and document serious human right violations on both sides. They will also be able to make recommendations for necessary reparations and measures to restorative justice in accordance with international standards.
This commission’s mandate must include not only family separation, but also the continued deployment of Title 42 and the Remain in Mexico policy, and the mass deportations of Haitians, among other specific instances, as well as their historical origins and contemporary implications. It must also include human rights crimes attributable to U.S. policy that have unfolded on Mexican territory and beyond, as part of the extraterritorial impact of policies, such as “prevention through deterrence.”
This is the Biden administration’s duty, pursuant to both U.S and international law.
