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Immigrants From Mexico Border To U.S.A: Human Rights Dilemma

History of the world is a long tragic tale of aggressions, wars, class-community conflicts and violence. There had been in the past French Revolution, Russian Revolution, American Revolution and India's long struggle for Independence. Those who fought wars and took active part in revolutions also undertook them to create order, peace and happiness. But Buddha's saying is, Violence can be met only by non-violence and enmity by friendship.

In the present world situation, even a superpower harbours no ambition to rule over another country by forming its own government but the desire is to monopolise another country's trade, commerce and industry.

World over people's resistance and protest-many times leading to large-scale violence-is with an urge for freedom which is the most cherished and valuable human right. India's long freedom struggle was also to attain full human freedom to all Indians. The people's unarmed struggle against dictators in Egypt and Libya is an outburst of the innate desire of people of those countries to enjoy human freedoms of all kinds.

Nexus Between Refugee Crisis And Human Rights

Human rights are those rights which an individual has a right to enjoy because of his being a human being. It is one of the primary obligations of the States and the international community to protect and make possible due enjoyment of such rights. The issue gains more importance when the human rights of refugees are in focus. They are most vulnerable to deprivation and persecution, more so, because of lack of State protection.

The cognisance of refugee status must be taken both under the refugee law and the human rights law, two inseparable composite lenses for that purpose. In reality the aim is not only a mere institutionalisation of the exile, but also respect for rights of the individuals. The obligation of the international community is to grant protection and join hands with the country of refugees' refuge and work for elimination of the causes of any exodus. The individual well-being and fairness of the general masses must be looked into in an integrated manner. Thus the refugee crisis cannot be addressed without a direct consideration of human rights.

Refugees generally flee out of their homes because of threat to their lives or fear of persecution. As regards the state responsibility in the matter, the General Assembly Group of Experts (1986) recommended that in view of their responsibility and their obligations under existing international instruments in the field of human rights, States should:
  1. do all within their means to prevent new massive flows of refugees and refrain from creating or contributing by their policies to causes and factors which generally lead to refugee movements, and
  2. cooperate with one another in order to prevsnt such future flows. Findings of the UNHCR experts in 1989 have made it explicitly clear that in broad terms, the problem of refugees is basically that of the denial of freedom to the individual by reason of conditions in the country of nationality which compel them to depart from that country or to stay abroad.

They opined that the solution was either:
  1. prevention of conditions within the country of nationality which compelled a national to depart; or
  2. remain outside the country of nationality without national protection or remedying of the conditions having that effect. It was only in that eventuality that the basic problem of denial of freedom of movement could be solved.
The UN General Assembly has discussed the problem of refugees, inter alia, with reference to the development of good neighbourliness between states which is manifest from different agreements and arrangements at the global level and is mainly, reflected in the Conclusions on Voluntary Repatriation, adopted by the UNHCR Committee in 1985.

The High Commission in this way allows the taking of initiatives in promoting voluntary repatriation; and actively pursues the promotion of solutions to refugee problems. This necessitates a change in approach at the political, diplomatic and assistance level, especially with respect to human rights.

The need is to accept the sovereignty of human rights and realise that the sovereignty of the nation states is not and cannot be absolute. The concept of sovereignty has to undergo changes from time to time and more so when internationalism has become inescapable and concern for human rights has transcended all national borders. The fall of USSR and China's positive responses to voices from outside are the most recent instances.

This development is very important from the point of view of refugee law and crisis. International refugee law has accordingly incorporated doctrines through universal and regional instruments to take care of the human rights of refugees and of those whose rights if protected may not become refugees.

This fact leads to the conclusion that the refugee law is an inseparable part of human rights law. The Universal Declaration of Human Rights also provides that Everyone has the right to seek and to enjoy in other countries, asylum from persecution. Persecution can be defined as a violation of basic human rights.

The 1951 Convention alongwith many other international and national instruments spell out in detail the right to seek asylum from persecution and the definition of a refugee under the Convention has a clear nexus with the basic concept of human rights.

Refugees' Human Rights Under Universal Instruments

Under the Universal Declaration of Human Rights 1948 every one has the right to:
  1. freedom of movement and residence within the borders of each state
  2. leave any country including his own and return to his country
  3. seek and to enjoy in other countries asylum from persecution,
  4. a nationality and not to be arbitrarily deprived of this nor to be denied the right to change it.

Besides UDHR, all basic human rights are guaranteed to refugees under the 1951 Convention on the Status of Refugees. Before specifying the rights of the refugees the Convention puts them under a duty to the country in which they find themselves to conform to its laws and regulations as well as measures taken for the maintenance of public order.

Under the Convention the contracting states are under an obligation to honour all the basic rights of the refugees in a prescribed manner. The Convention requires the application of its provisions to refugees without discrimination on the basis of race, religion or country of origin. The refugees are to be accorded a treatment, at least as favourable as is accorded to the nationals. They are even given the freedom of religion and right to impart religious education to children.

The Convention provides for the protection of refugees' rights not only under its own provisions but also those available under any other law or policy. After a period of three years residence all refugees are given exemption from legislative reciprocity. Wherever exceptional measures are allowed against the person, property or interests of the national of a foreign state, the Convention restricts the application of such measures to refugees from that State, except in those cases where national security so demands.

About refugee seamen the Convention provides that in the case of refugees regularly serving as crew members on board a ship flying the flag of a contracting State, that State shall give sympathetic consideration to their establishment on its territory and the issue of travel documents to them or their temporary admission to its territory particularly with a view to facilitating their establishment in another country.

The Convention permits the determination of the personal status of a refugee by the law of the country of his domicile or by the law of the country of his residence (if he has no domicile) and recognizes the rights of acquisition of the property, both movable and immovable, through different modes, at least equivalent to the rights accorded to aliens in the same circumstances.

The Convention guarantees the same protection to the industrial and intellectual property of refugees in the country of habitual residence as is accorded by that country to its own nationals. Their rights regarding association with non-political and non-profit-making associations and trade Unions, access to courts, rationing facilities, education, recognition of degrees and qualifications, public relief, fiscal charges, freedom of movement, will be the same in a Contracting State as those of their own nationals or nationals of their habitual residence or at least as enjoyed by aliens in the same circumstances.

Same is the position with respect to the right to ‘wage-earning employment' and ‘self-employment'. Restrictive measures imposed on aliens or the employment-aliens for the protection of the national labour market shall not be applicable to a refugee who was already exempt from them before the enforcement of the Convention or who has completed three years' residence in the country or has a spouse possessing the nationality of the country of residence or has one or more children possessing such nationality.

Those refugees who are holding recognised degrees and who are desirous of practising a liberal profession, are entitled to get from the Contracting State a favourable treatment and the States shall use their best endeavours consistent with their laws and Constitutions to secure the settlement of such refugees.

In the matters of remuneration, hours of work, overtime arrangement, holidays with pay, restrictions on homework, minimum age of employment, apprenticeship and training, women's work and the work of young persons,. enjoyment of the benefits of collective bargaining, compensation for death resulting from employment injury or from occupational disease, the refugees are to be treated by a Contracting State in the same manner as it treats its own nationals.

Almost equal benefits are enjoyable under the social security legislations. So far as administrative measures are concerned the Contracting States are required by the Convention to grant assistance to refugees in regard to their access to foreign countries to whom they cannot have recourse for matters like delivery of documents or certificates by their own authorities or by an international authority for the service charges commensurate with those charged to nationals for similar services.

A refugee who does not possess a valid travel document is also to be issued identity papers and refugees who are lawfully staying in a Contracting State, should be issued travel documents for the purpose of travel outside their territory unless found to be improper under compelling reasons of national security or public order.

Permitting refugees the transfer of assets to their places of settlement is also a duty of the Contracting States. No penalties are to be imposed on refugees entering a Contracting State illegally provided they present themselves, without delay, to the authorities and show good cause for their illegal entry or presence. They enjoy a right not to be expelled, but for the reasons of national security or public order and in accordance with due process of law.

The Convention contains clear provisions about the prohibition of expulsion or return (refoulment) directing the Contracting States not to expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion except for the one who is a threat to its national security or has been convicted for a serious crime and constitutes a danger to the community of that country. Nonetheless, the contracting parties are required by the Convention, as far as possible, to facilitate the assimilation and naturalization of the refugees.

Enforcement Of Human Rights By Refugees

The main agency to facilitate the enjoyment of human rights by refugees is the UNHCR. The UN General Assembly decided to establish the High Commissioner's Officer for Refugees (UNHCR) on 3 December 1949. The statute of the office was adopted on 14 December 1950 and the office took its birth on 1 January 1951. The statute declard the work of the high commissioner as purely humanitarian and social and of an entirely non-political character.

The functions of the high commissioner are defined in the statute and in various subsequently adopted resolutions of the General Assembly. He has to follow the policy directives as given to him by the General Assembly or the Economic and Social Council.

The statute authorises the Economic and Social Council, after ascertaining the views of the high commissioner on the subject, to establish an advisory committee on refugees comprising representatives of States, members and non-members of the UN, selected on the basis of their demonstrated interest in and devotion to the solution of the refugee problem. An Advisory Committee on Refugees was established by the Economic and Social Council in 1951 which was later reconstituted in 1955 as the ‘UN Refugee Fund (UNREF) Executive Committee'. In 1958, the latter was replaced by the Executive Committee of the High Commissioners Programme.

The committee approves and supervises the material assistance program of the High Commissioner's Office and advises him at his request on the exercise of his functions under the statute. Beginning with a membership of 24 states in 1963 its membership has gradually increased to 134.

The Office of the United Nations High Commissioner for Refugees was first established for a period of three years. It was extended by subsequent resolutions for successive periods of five years, the present term ending on 31 December 1999.

The General Assembly resolution 428 (V) of 14 December 1950 further called upon governments to cooperate with UNHCR in the performance of its functions concerning refugees by:
  1. becoming parties to relevant international covenants and taking necessary steps of implementation thereunder;
  2. entering into agreements with the high commissioner for the execution of measures to improve the situation of refugees;
  3. admitting refugees to their territories and their assimilation;
  4. assisting the high commissioner in his efforts to promote the repatriation of refugees;
  5. providing refugees with travel and other documents especially to facilitate their resettlement;
  6. permitting them to transfer of assets; and
  7. providing the high commissioner with information concerning the number and condition of refugees, and laws and regulations concerning them.

United States Statute And Treaty Obligations

In the wake of World War II, the United States helped lead efforts to draft the Convention Relating to the Status of Refugees. The United States subsequently became a party to the Refugee Protocol, committing to abide by the Refugee Convention's requirements, including its prohibition on the expulsion or return of refugees in any manner whatsoever to places where their lives or freedom would be threatened. This rule of non-refoulement applies to rejecting or turning away asylum seekers at a country's borders.

Congress created legal processes for arriving asylum seekers to request protection and have their claims adjudicated in accordance with the Refugee Protocol. Section 208(a) of the Immigration and Nationality Act (INA) confirms that any individual who is physically present in the United States or who arrives in the United States at a port of entry or otherwise may apply for asylum, irrespective of the person's immigration status.

Since 2009, asylum requests, particularly among Central Americans who are fleeing endemic violence, have increased both in the United States as well as in neighboring countries of the region. Under U.S. immigration law, asylum seekers who have been placed into expedited removal proceedings by CBP cannot be summarily deported before having an asylum officer conduct a screening.

When CBP invokes expedited removal and the individual indicates an intent to apply for asylum or a fear of persecution, the CBP officer must, under U.S. law, refer that asylum seeker for a credible fear interview with an asylum officer. From December 2016 through March 2017, about 8,000 asylum seekers were referred for protection screening interviews from U.S. ports of entry, including U.S. airports.

Asylum seekers are held in U.S. detention facilities during these screenings, and even those who pass this screening often remain in immigration detention facilities for months. CBP's own field manual instructs officers to refer an individual to an asylum officer for a credible fear interview upon indication in any fashion or at any time during the inspections process, that he or she has a fear of persecution, or that he or she suffered or may suffer torture.

Alternatively, CBP officers may place asylum seekers into regular immigration court proceedings before an immigration judge under section 240 of the Immigration and Nationality Act, rather than invoking expedited removal.

The Trump administration has acknowledged U.S. legal obligations to asylum seekers. President Trump's March 6, 2017 executive order, Protecting the Nation From Foreign Terrorist Entry Into The United States, states, Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

Similarly, CBP officials have confirmed that the United States continues to recognize its obligation to process asylum seekers. In March 2017 a CBP spokesperson told reporters:
CBP has not changed any policies affecting asylum procedures. These procedures are based on international law and are focused on protecting some of the world's most vulnerable and persecuted people.

However, gaps between the law and its implementation have long been documented. The bipartisan USCIRF detailed in a series of reports issued since 2005, with the most recent in 2016, a history of failure to properly implement the required steps to identify and refer individuals who indicate an intent to apply for asylum or a fear of harm.

U.S. Border Agents Are Turning Away Asylum Seekers Without Required Protection Screening

U.S. border agents have turned away asylum seekers, without referring them for the required protection screening or immigration court proceedings, at official ports of entry across the southern border.

In some cases, asylum seekers report that CBP officers simply ignored their request to seek asylum or their statements about fearing return, or said, for example:
We are deporting you now. In other cases, CBP officers gave false information about U.S. laws and procedures, mocked and intimidated asylum seekers, or accused them of lying.
Mexican asylum seekers in particular report that CBP agents discount their fear claims and tell them Mexicans cannot get asylum in the United States.

We're not accepting any political asylum applicants anymore, agents told one wheelchairbound Mexican asylum seeker in January, despite visible scars on his head from cartel attacks.

CBP told Magdalena, another Mexican asylum seeker at the Ped-West port of entry in February, they are killing people who are Christians. Those are the people we are giving asylum to, not people like you. You don't qualify.

A mentally disabled Mexican asylum seeker and his lawyer were told we don't give asylum here … we are not going to give asylum here. Martin, a Mexican journalist whose persecution has been documented by Reporters without Borders requested asylum at the El Paso port of entry and was told that Mexicans could not receive asylum in the United States, according to his attorney who witnessed the incident and was able to press CBP to process the protection request. Human Rights First wrote to DHS in July 2016 and urged that requests for protection be properly and humanely processed at [the San Ysidro] port of entry.


Yet the turn-backs continued and appeared to expand to multiple ports of entry along the southern border. A January 2017 complaint filed with the DHS Office of Civil Rights and Civil Liberties and the DHS Inspector General by the American Immigration Council, among other groups, detailed examples of turn-backs at multiple ports of entry in Texas, Arizona, and California between September and December 2016. Since November 2016 reports of CBP officers turning back asylum seekers have continued, with some officers reportedly invoking the change of administration in their refusal to process asylum seekers, particularly in the wake of the January 2017 executive orders relating to refugees and the border.

Human Rights First interviews with asylum seekers and their lawyers indicate that there has been a marked shift in the conduct of some CBP officers towards asylum seekers since the election of President Trump. CBP officers have reportedly made a range of statements to the effect that the United States is no longer granting asylum and that asylum seeker are no longer allowed to seek protection at U.S. ports.

Lawyers reported to Human Rights First that CBP agents at the Hidalgo port told asylum seekers, Trump says we don't have to let you in, and you can't just show up here. In February 2017 CBP agents at the Ped-West entry point told an asylum seeker that the United States is not giving asylum anymore. CBP agents told other asylum seekers they needed a visa to enter the United States, or that the U.S. is not processing asylum for people from your country anymore.

Mexican Authorities Are Complicit In Barriers To Asylum Seekers Approaching U.S. Ports Of Entry

Refugees who intend to request asylum at U.S. ports of entry along the southern border face a barrage of barriers in Mexico. Some are prevented from approaching U.S. officials by Mexican private security guards or Mexican immigration enforcement agents, who say the United States is no longer giving asylum.

Many who do reach CBP officers at the ports in southern California are turned back to Mexico and told they must first have an appointment from Mexican officials in order to meet with CBP officers at the U.S. port of entry. In reality, Mexican officials decline to issue appointments to many asylum seekers.

INM agents and Grupos Beta officials continue to prevent and discourage asylum seekers from approaching U.S. ports of entry, according to multiple interviews conducted by Human Rights First with shelters, non-profits, lawyers, and asylum seekers on both sides of the border.

In some cases, Mexican officers told people that the United States is no longer accepting asylum seekers. Human Rights First researchers observed Grupos Beta, INM agents, and Mexican military when approaching the border crossing points in Matamoros, Reynosa, and Tijuana. Local lawyers report that Mexican authorities turned away asylum seekers in Reynosa, Mexico who were attempting to approach the U.S. Hidalgo port of entry in January 2017.

Media reports indicate Mexican military agents blocked Cuban asylum seekers from approaching the Laredo port in early April 2017. Several shelters in Tijuana report that INM agents have informed Mexican asylum seekers that Mexicans cannot get asylum in the United States, and that local Mexican police officers have turned away Mexican asylum seekers who were attempting to approach the Ped-West port.

Multiple reports also indicate that Grupos Beta is informing Mexican and Central American asylum seekers that the United States is no longer giving people asylum. According to local advocates in Mexico, Grupos Beta officials have told them, stop lying to people, CBP told us they are not giving asylum in the United States anymore.

Coercion And Hostility Aimed At Discouraging Asylum Seekers: Conclusion

Even in cases where asylum seekers manage to speak with CBP officers, some encounter officers who press them to abandon their asylum requests, appear to make personal, arbitrary decisions on who is eligible for asylum, or fill out CBP interview forms with inaccurate, misleading, or false information.

This gauntlet of barriers to requesting asylum is so challenging that some asylum seekers have turned to lawyers to help make sure the appropriate legal processes are followed. Asylum seekers, and sometimes lawyers, have been berated by CBP officers for urging them to process and properly refer protection requests.

Consistent with U.S. law, as detailed above, CBP officers at ports of entry are charged with referring individuals who express a fear of return or request asylum to trained United States Citizenship and Immigration Services (USCIS) asylum officers who make the legal determination of whether the asylum seeker has a significant possibility of establishing eligibility for asylum.
Therefore the situation of Human Rights at USA-Mexico border is deplorable.

Award Winning Article Is Written By:
  1. Manu Gupta &
  2. Shivangi Pant

    Awarded certificate of Excellence
    Authentication No: DE33787763147-2-1220

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