American Academy of Pediatrics Eases Up on FGM

by Jason Dzubow

The American Academy of Pediatrics has issued a revised policy statement on Female Genital Mutilation (also called Female Genital Circumcision or Cutting).  The new statement reads as follows:

The traditional custom of ritual cutting and alteration of the genitalia of female infants, children, and adolescents, referred to as female genital mutilation or female genital cutting (FGC), persists primarily in Africa and among certain communities in the Middle East and Asia. Immigrants in the United States from areas in which FGC is common may have daughters who have undergone a ritual genital procedure or may request that such a procedure be performed by a physician. The American Academy of Pediatrics believes that pediatricians and pediatric surgical specialists should be aware that this practice has life-threatening health risks for children and women. The American Academy of Pediatrics opposes all types of female genital cutting that pose risks of physical or psychological harm, counsels its members not to perform such procedures, recommends that its members actively seek to dissuade families from carrying out harmful forms of FGC, and urges its members to provide patients and their parents with compassionate education about the harms of FGC while remaining sensitive to the cultural and religious reasons that motivate parents to seek this procedure for their daughters.  

The highlighted language is new, and represents a step back from the AAP’s previous position, which opposed FGM under all circumstances. 

Since the landmark Kasinga case, women and girls have been able to qualify for asylum in the United States based on a fear of FGM.  Whether the AAP’s watered-down position will impact such asylum seekers remains to be seen.

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UN to Review US Detention System

by Jason Dzubow

In November 2010, the United States will undergo its first Universal Periodic Review (UPR) with the United Nations Human Right Council.  This human rights mechanism, established in 2006, periodically reviews all member states regarding their compliance with their human rights obligations and commitments.  The UPR offers an opportunity to pressure the U.S. government to comply with those obligations. 

Fine dining in Batavia, NY

In preparation for the review, a number of U.S. NGOs have prepared a report about detention of immigrants in the United States.  From the report:

 The U. S. immigrant detention system lacks due process and subjects noncitizens to arbitrary detention and inhumane treatment, in violation of U. S. obligations under international human rights law.  To comply with the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR), the United States must:

(1)  Provide individual custody determinations, assessing if a noncitizen’s particular circumstances require detention; 

(2)  Provide judicial review over custody decisions; and 

(3)  Ensure that conditions in immigrant detention facilities reflect the civil nature of the government’s detention authority.

While we are thinking about improvements to the detention system, here are some items on my wish list:

 (1) Better access to counsel.  It’s bad enough that detention centers are in remote locations, but worse than that is the lack of communication with detained aliens.  Immigration detention is civil.  Therefore, aliens in detention should have access to phones (and why not cell phones?), computers, and faxes.  The problems caused by distance when preparing a case are multiplied exponentially by the inability to communicate with clients by phone and email.  This problem is particularly bad for asylum seekers, who often need to gather information from overseas, and who may not have family or friends in the United States to help prepare an asylum case.

(2) More procedural protections.  ICE personnel routinely convince detained aliens to “sign papers” agreeing to removal.  I have received many calls (as recently as last Friday) where family members relate how their detained relative was tricked or coerced into agreeing to removal.  Such aliens are rarely informed of their rights or questioned about any fear of return. 

(3) Better trained guards.  Poor training leads to many problems at the detention centers.  For example, several years ago, I represented a few immigrants detained at a facility in Virginia.  One guard at the facility routinely punched the detainees in the groin whenever he performed a pat down.  One man was injured so badly that he had to be hospitalized.  Despite repeated complaints, nothing was done about the guard.  Finally, I contacted an acquaintance on the House Oversight Committee for ICE Detention (one of the benefits of living in DC) and began cc’ing him on all my emails to the detention center.  The abuse promptly stopped, though as far as I heard, the guard was never punished.  Better training and oversight of detention center personnel would help to reduce abuse at the detention centers.

Nothing will make detention pleasant, but these suggestions would help to improve conditions and ensure the procedural protections that are integral to our system of justice.

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Britain’s Detained Asylum Seekers

by Jason Dzubow

The U.S. is not the only country that detains asylum seekers.  Nor is it the only country where asylum seekers allege abuses during detention.  Four female asylum seekers in Great Britain have brought suit claiming that they were abused at that country’s Yarl’s Woods detention center, a 405-bed detention facility for women and families.  The Guardian reports that the four women allege physical and sexual abuse, separation of children from parents, and poor living conditions resulting in illness:

Last month, the High Court ruled that it would hear the women’s claims, a development that means the Home Office will be obliged to demonstrate in open court how Yarl’s Wood complies with the UK’s obligation to asylum seekers and to defend the centre against charges that its treatment of asylum-seeking women and children constitutes a “systematic disregard for human dignity.”

Yalr's Woods houses women and children asylum seekers
For its part, the Home Office maintains that all four “have attacked and abused our staff,” and that “Yarl’s Wood is a well run centre with highly professional and caring staff.” Earlier this year, the facility was the scene of a hunger strike to protest the long periods of detention for women and children at the center. A recent report from the UK Children’s Commissioner found that children held at Yarl’s Woods face “extremely distressing” arrest and transportation procedures, and are subjected to prolonged and sometimes repeated periods of detention.  The report further noted that healthcare problems include a failure to assess “even at an elementary level” the general psychological well being of a child on arrival and a failure to recognise psychological harm when faced with dramatic changes in a child’s behaviour.  Britain detains about 1,000 children per year at the Yarl’s Woods detention center.

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A Flood of Mexican Asylum Seekers?

by Jason Dzubow

In an article about Mexicans seeking asylum for fear of drug violence, John Feere writes on the Center for Immigration Studies website that:

it should be obvious to any Immigration Judge that our nation’s asylum laws are not applicable to the situation at hand. Nevertheless, if they are successful it would represent a massive expansion of asylum law and it would undoubtedly result in increased asylum claims by Mexicans living illegally in the United States. It would also encourage more Mexicans to cross the border illegally.

I disagree with Mr. Feere’s first assertion–that our asylum laws are not applicable to those fleeing gang and drug violence.  The harm faced by some asylum seekers (death at the hands of criminal gangs or corrupt government officials) would certainly qualify as persecution.  In many cases, the government of Mexico cannot or will not protect people from drug violence.  The main question seems to be whether such persons face persecution on account of a protected ground.  That will depend on the individual case.  Former police officers, for example, have been defined as a particular social group. See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).  As discussed in a recent post, the Seventh Circuit has held that “former gang members” may constitute a particular social group.  Ordinary citizens caught in the crossfire will have a harder time demonstrating a nexus (though they still might qualify for relief under the Torture Convention, as the harm faced might constitute torture, and–it could be argued–the persecutors are either government or quasi-government actors).

It is more difficult to argue with Mr. Feere’s second assertion–that granting asylum to some Mexicans fleeing the drug war will create incentives for more people to file for asylum, and more people to cross illegally into the U.S.  Of course, if the goal of asylum is to protect people from harm, this might not be such a terrible thing (assuming the harm they face crossing the border is less than the harm they face in Mexico).   

The balance between offering protection to refugees on the one hand, and not opening the floodgates on the other, is particularly difficult when it comes to our closest neighbor.  However, the numbers, at least so far, do not support a conclusion that increasing violence has led to more Mexican asylum seekers or more asylum grants for Mexicans.  The Justice Department figures for Mexican asylum seekers during the last decade:

Year Asylum Seekers Asylum Granted Mexicans in United States Illegally 
     2000      5,490      47      4,700,000
     2001      2,670      46      4,920,000
     2002      4,994      37      5,140,000
     2003      7,808      64      5,360,000
     2004      3,505      68      5,580,000
     2005      2,947      34      5,800,000
     2006      2,793      49      6,020,000
     2007      3,042      49      6,240,000
     2008      3,459      72      6,460,000
     2009      2,816      62      6,680,000

The (rough) estimates of the number of Mexicans residing illegally in the U.S. is based on a report from the Migration Policy Institute.  Based on these numbers, on average, about 220,000 Mexicans enter the United States illegally every year.  Only a very small percentage (usually <2%) of illegal Mexican migrants seek asylum each year in our country.  Of those, only about 2% are granted asylum.  For 2009, only 62 Mexican asylum seekers–or about 1 out of every 3,500 people–were granted asylum.  Given the remote possibility of an asylum grant, Mr. Feere’s concern about creating incentives for further migration from Mexico seems overblown.   

As opposed to Mr. Feere, I am an advocate for asylum seekers, and my inclination is to err on the side of offering protection.  However, if the situation in Mexico continues to deteriorate and we see a spike in asylum applications (which so far we have not), we may need to address how to fulfill our humanitarian obligations without compromising our territorial integrity.

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Commemorating the Refugee Protection Act of 1980

by Jason Dzubow

Human Rights First is commemorating the Refugee Protection Act with a new video, featuring a bi-partisan group of commentators.  I particularly like the quote from Zbigniew Brzezinski, that helping refugees is not only true to America’s moral values, but it has enriched our nation.  From the HRF website:

The 30th Anniversary of this landmark piece of legislation offers an occasion to highlight the United States achievements under the Refugee Act, honor the contributions refugees and their children have made to the diverse fabric of American society, and evaluate the ways in which policymakers can work together to overcome the current challenges in the U.S. refugee resettlement and asylum systems.

The Refugee Protection Act of 2010 has been introduced to address some of the “current challenges in the U.S. refugee resettlement and asylum systems.”

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Criticizing the DOS Critics

by Jason Dzubow

Now that the State Department Report on Human Rights Practices is out, the critics are weighing in.  Mark Weisbrot writes in the Guardian that “After Abu Ghraib, Gitmo and extraordinary renditions, other countries now challenge America’s standing on human rights.”  In his piece, “Who is America to Judge?,” Weisbrot writes:

Clearly, a state that is responsible for such high-profile torture and abuses as took place at Abu Ghraib and Guantánamo, that regularly killed civilians in Afghanistan and Iraq and that reserved for itself the right to kidnap people and send them to prisons in other countries to be tortured (“extraordinary rendition”) has a credibility problem on human rights issues.

In other words: Who are we to cast the first stone?  I suppose I don’t quite get his point.  The report speaks for itself.  Whether our own human rights record is spotless or horrible is not the issue.  The issue is whether the report is accurate.  If there exists inaccuracies in the report (which undoubtebly there are), those inaccuracies can be examined.  But the fact that America is imperfect is not a valid basis to reject the State Department’s conclusions.

One government that has been particularly sensitive to U.S. criticism is the People’s Republic of China.  After the 2008 Human Rights Report was released, the Chinese government issued a report of its own, discussing human rights in the United States.  The introductory section of the report reveals the report’s main purpose, which seems to be payback for the State Department’s negative comments on China:

The State Department of the United States released its Country Reports on Human Rights Practices for 2008 on February 25, 2009. As in previous years, the reports are full of accusations of the human rights situation in more than 190 countries and regions including China, but mentioned nothing of the widespread human rights abuses on its own territory. The Human Rights Record of the United States in 2008 is prepared to help people around the world understand the real situation of human rights in the United States, and as a reminder for the United States to reflect upon it s own issues.

The Denying Duo: Meles Zenawi and Hu Jintao

The Chinese accusation of U.S. hypocricy rings hollow for several reasons.  First, the Chinese government has issued its human rights report about the United States, but not about any other country.  It seems, then, that the PRC is more concerned with retaliating against the U.S. than promoting human rights.  Second, the Chinese report demonstrates a fundamental misunderstanding of the State Department Report.  The State Department reports on foreign governments, not on the internal situation in the United States.  We have other agencies to do that.  Indeed, much of the Chinese report is culled from United States government agencies that have issued reports on the domestic situation.  The premise of China’s report–that the U.S. criticizes others without looking inward–is simply wrong.  It’s just that the list of agencies that examine human rights inside the United States does not include the State Department.  Finally, the Chinese government has not responded to the substantive accusations in the DOS report.  Rather than examine its own substantial problems, the PRC government has tried to distract attention by shooting the messenger.  On one point, however, I agree with China: We in the United States would do well to reflect on our own human rights record.  Of course, given the myriad reports from different U.S. government agencies, we can do that very well without the help of the Chinese government.

Another government that has been critical of the DOS report is Ethiopia.  The Voice of America (which, by the way, is being jammed by the Ethiopian government) reports:

Ethiopia’s Prime Minister Meles Zenawi has blasted the latest U.S. State Department human rights report, saying it is full of lies and loopholes that expose its authors to ridicule…  The prime minister accused the State Department’s human rights investigators of sloppy work in compiling the 61-page annual report on Ethiopia.

As opposed to China, at least Mr. Meles has pointed to some alleged inaccuracies in the report: “one person listed in the report as ‘disappeared’ could easily have been found alive and well at his workplace,” said the Prime Minister.  “Acting US Ambassador to Ethiopia John Yates said experts had gone to great lengths to ensure the document’s accuracy, and rejected information that could not be verified.”  Having litigated over 100 asylum cases from Ethiopia, I’ve spent considerable time examining different sources on that country’s human rights record.  It’s not just the DOS that has criticized Ethiopia.  Even if there are inaccuracies in the report, my guess is that the report is closer to reality than Mr. Meles cares to admit.

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2009 Human Rights Report

by Jason Dzubow

The U.S. State Department Country Reports on Human Rights Practices were released today.  Secretary of State Clinton described the purpose of the report:

These reports are an essential tool—for activists who courageously struggle to protect rights in communities around the world; for journalists and scholars who document rights violations and who report on the work of those who champion the vulnerable; and for governments, including our own, as they work to craft strategies to encourage protection of the human rights of more individuals in more places.

The reports released today are a record of where we are. They provide a fact-base that will inform the United States’s diplomatic, economic and strategic policies toward other countries in the coming year. These reports are not intended to prescribe such policies, but they provide essential data points for everyone in the U.S. Government working on them.

Secretary Clinton also described the philosophy behind the reports:

Human rights are timeless, but our efforts to protect them must be grounded in the here-and-now. We find ourselves in a moment when an increasing number of governments are imposing new and crippling restrictions on the nongovernmental organizations working to protect rights and enhance accountability. New technologies have proven useful both to oppressors and to those who struggle to expose the failures and cowardice of those oppressors. And global challenges of our time—like food security and climate change; pandemic disease; economic crises; and violent extremism—impact the enjoyment of human rights today, and shape the global political context in which we must advance human rights over the long term.

Human rights are universal, but their experience is local. This is why we are committed to hold everyone to the same standard, including ourselves…. When we work to secure human rights, we are working to protect the experiences that make life meaningful, to preserve each person’s ability to fulfill his or her God-given potential.

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