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Imprisoning children isn’t an ‘immigration policy’

By Aaron Fellmeth

Last summer, the Trump Administration adopted new rules that, if enforced, would strip immigrant children of their rights, allowing the government to lock them up indefinitely in unlicensed facilities with no meaningful government oversight. The new rules violated a settlement agreement into which the government entered 23 years ago in Flores v. Reno.

There, activists brought a class action on behalf of children who were being routinely strip-searched and locked up behind razor wire by U.S. immigration authorities. They were detained for months in unsafe, overcrowded, and unsanitary facilities, and denied access to education, recreation, or visits from their family. Some were victimized by the guards or neglected altogether. They had insufficient clean clothes, access to baths, and healthy meals. The Flores agreement was intended to end such practices by requiring the government to expeditiously process detained children, treat them humanely and with respect, and release them to trusted family or friends in the United States while their claims for asylum were heard.

Today, reliable reports show that children are once again being held in the same atrocious conditions that prompted the original Flores litigation. Yet, the Trump Administration decided that a good way to Make America Great Again is to increase the suffering and risks for children by extending indefinitely the time they would be locked up in high security facilities.

A California federal district court has recently rejected the government’s request to repudiate its agreement. The government appealed to the Ninth Circuit, which is now considering the case under the name Flores v. Barr.

This case may seem like just another attempt by the Trump Administration to restrict and penalize immigration, but it is much more than that. It is a test of our basic morality and commitment to universal human rights.

The arbitrary detention of any person violates U.S. obligations under human rights treaties signed by former Presidents and duly ratified by Congress. A general policy of detention for longer than strictly necessary is by definition arbitrary. Moreover, arbitrary detention of asylum seekers violates the Convention Relating to the Status of Refugees, also ratified by the United States. That treaty forbids parties to detain asylum seekers until a decision has been made on the credibility of their fear of persecution. The United States is flatly forbidden to penalize them due to their undocumented presence in the country, if they present themselves to authorities promptly. Even if detention facilities offered ideal conditions, which they don’t, it would still be illegal to automatically detain asylum seekers unnecessarily.

These are rights that apply to immigrants of any age. It should surprise no one that children benefit from additional protection under international law. One of the fundamental principles of the Convention on the Rights of the Child is that a child’s best interests must always be a primary consideration in any government decision affecting children. Another is that children are entitled to special protection for the assurance of their health, intellectual development, and emotional well-being. The United States stands alone in the world in not having ratified the Convention, but it played a major role in drafting it, a U.S. President signed it, and key provisions of it represent customary international law. The United States is therefore legally obligated to respect the core principles of the Children’s Convention.

It cannot be seriously claimed that locking up children is in their best interests. There is an overwhelming consensus among the many United Nations bodies and human rights authorities that the detention of children in migration always violates international law.

There are weighty consequences to violating international law. These include further corrosion of the United States’ credibility and authority in the international community, and of its ability to achieve critical diplomatic and foreign policy goals. More important, violating human rights law corrupts our moral fiber, mocking the image of the United States as a beacon of liberty and rule of law, and projecting another: a force in the world for callousness and lawlessness or, less charitably, naked evil.

A government policy that violates the human rights of children is doubly despicable. Protecting children and seeking their best interests are universal moral imperatives as well as binding obligations of international human rights law. A child’s nationality or immigration status is no excuse to cast aside morality or international law, much less both.

Aaron Fellmeth is the Dennis S. Karjala Professor of Law, Science & Technology at Arizona State University, Sandra Day O’Connor College of Law. Fellmeth is the lead author of an amicus brief in Flores v. Barr on behalf of 14 nongovernmental organizations and more 100 international lawyers and child rights lawyers explaining the consequences of the government’s proposed child detention policy under international law.

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