While the Trump administration’s official policy of family separation may have formally ended in June 2018, the practice itself did not, nor did the harm it has caused to thousands of families. As congressional hearings last week made clear, many questions remain about how many children have been separated from their parents, where they are today, and what the government knew about the severe, long-term psychological damage inflicted by the forcible separation of parents and children at the border—a practice that, when undertaken deliberately for the purpose of deterring migration, constitutes torture under international law. Secretary of Homeland Security Kirstjen Nielsen continues to deny the existence of a family separation policy, but a recent report by the Texas Civil Rights Project and news articles citing the Department of Justice’s own records indicate that families crossing the country’s southern border are still being torn apart, without any process or recourse for parents.

This ongoing humanitarian crisis, of the administration’s own making, has rightfully preoccupied the new U.S. Congress. What has received less attention, however, is the role that the routine, arbitrary detention of asylum seekers—itself a violation of human rights law—plays in the ongoing torture of family separation. We cannot truly repair the impact of family separation, unless we reckon with the practice of arbitrarily keeping asylum seekers behind bars.

Arbitrary Detention of Asylum Seekers in International Law

Arbitrary detention is prohibited under international law, including in treaties binding on the United States. Article 9 of the International Covenant on Civil and Political Rights (ICCPR), for example, guarantees that no one shall be subject to arbitrary detention and applies with equal force in the immigration context. Article 31 of the Refugee Convention, which binds the United States through its Optional Protocol, has been interpreted to protect refugees from arbitrary detention. According to Detention Guidelines issued by the U.N. High Commissioner for Refugees, confining an asylum seeker in civil immigration detention is permissible only when based on an individualized determination that confinement is necessary for a legitimate purpose, such as preventing flight or protecting public safety or national security, and when subject to prompt, independent judicial review.

Crucially, international bodies have made clear that detention of asylum seekers must be a measure of last resort, not a default practice imposed automatically or as a broad rule for a large category of people.

Deterring asylum applicants or discouraging future migration is not a lawful basis for depriving an individual migrant of liberty, either under international law (see Detention Guidelines at para. 32) or under U.S. law (see the preliminary injunction issued in RILR v. Johnson).

U.S. Practice of Detaining Asylum Seekers

That is where U.S. practice parts ways with U.S. legal obligations. As reported by Amnesty International and the ACLU, the United States routinely detains asylum seekers without individualized findings that they pose a flight risk or a danger to the community, and without affording them an opportunity for independent judicial review of their custody.

Instead, evidence suggests that deterrence of immigration to the United States is a principal motivation behind the routine jailing of asylum seekers. A memorandum penned by then-Secretary of Homeland Security John Kelly in January 2017 asserted that the detention of arriving asylum seekers and other migrants while they await the results of their eligibility hearings “has a significant deterrent effect on illegal immigration.” And a White House press statement issued in April 2018 asserted that “[c]atch and release loopholes encourage more and more illegal immigration into the U.S.,” implying that detaining migrants would have the opposite effect. The U.N. Working Group on Arbitrary Detention has expressed concern about the widespread use of detention in the United States, noting that deterrence appeared to be the aim.

Trends in various Immigration and Customs Enforcement (ICE) field offices reflect the overuse of immigration detention, as evident in crowded detention facilities in California, in violation of migrants’ fundamental right to liberty and the prohibition of arbitrary detention. An ongoing federal lawsuit argues that ICE’s widespread practice of routinely locking up asylum seekers is unlawful. In March 2018, a class action complaint (Damus v. Nielsen) was filed on behalf of detained asylum seekers who were denied release on “parole” at five of ICE’s busiest field offices. The case cited evidence that nearly 100 percent of such parole requests were denied, whereas in the past more than 90 percent were granted. This sharp reversal in the number of requests granted and the use of checkboxes to communicate denials strongly suggest that ICE is not determining the necessity of detention in each individual case.

In July 2018, a federal judge issued a preliminary injunction in Damus, prohibiting those ICE field offices—in Detroit, El Paso, Los Angeles, Newark and Philadelphia—from denying parole to any detained, arriving asylum seeker who has shown a credible fear of returning to their country of origin, “absent an individualized determination, through the parole process, that [the person] presents a flight risk or a danger to the community.”

It is unclear, however, if the government is complying with this order. Filings in the case late last year indicate that the parole grant rate, which reportedly had dropped to less than 4 percent between February and September 2017, has remained far below rates in prior years even after the injunction. According to a case status report submitted by the plaintiffs in December 2018, there is evidence that ICE continues to apply categorical criteria to deny parole, and still uses boilerplate language to refuse release rather than provide an explanation of specific factual findings that justify continued detention for each individual.

How Arbitrary Detention Compounds Torture

Such arbitrary detention is not only illegal on its own; when it is imposed on an asylum seeker who was forcibly separated from her child, it also amounts to torture. The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as an act or omission intentionally conducted by government officials that results in severe suffering and is carried out for an impermissible purpose, such as coercion or intimidation.

As Beth Van Schaack explained in an earlier post, the forcible separation of parents and children at the border not only fits this international law definition, but also satisfies the narrower definition codified in U.S. law: it is a deliberate practice that causes severe pain and suffering, carried out by government agents, not based on any finding that the parent poses a danger to the child or is unfit to care for them, but for the purpose of deterring migration and coercing asylum seekers to give up their claims. (Last year, the Washington Post compiled statements from administration officials who admitted that family separation was meant as a deterrent.)

When an individual forcibly separated from her child is deprived of her liberty for no legitimate purpose and without independent judicial review, that arbitrary detention prolongs the separation and exacerbates the severe suffering experienced by both parent and child. At a hearing before the House Committee on Energy and Commercein February 2019, Dr. Jack Shonkoff, director of the Center on the Developing Child at Harvard University, testified that prolonged separation “inflicts increasingly greater harm as each week goes by.” He added, “forcibly separating children from their parents is like setting a house on fire. Prolonging that separation is like preventing the first responders from doing their job.”

Both in creating an enabling environment for such abuses and in prolonging the harm, the administration is violating international law. As the CAT Committee has clarified in a General Comment on the right to redress and in its jurisprudence on individual complaints, a state’s failure to immediately cease acts of torture or to investigate and remedy them constitutes a continuing violation.

Moreover, what appear as mere administrative oversights or omissions may amount to breaches of the state’s legal obligation to prevent torture through reporting mechanisms, as detailed in the Istanbul Protocol on the effective investigation and documentation of torture. A torture prevention handbook published by the U.N., Preventing Torture: An Operational Guide for National Human Rights Institutions, stresses that the lack of documentation, particularly in detention settings, heightens the risk of torture. Both the U.N. Special Rapporteur on Torture and the U.N. Human Rights Committee, commenting on Article 7 of the ICCPR, likewise haveemphasized that transparencyis essential to preventing torture.

The Trump administration’s conduct is patently at odds with these standards. Officials have failed to keep track of the extent or nature of the harm done by family separation and the ongoing arbitrary detention of asylum seekers separated from their children, let alone take steps to remedy it. Recent testimony in a series of congressional hearings by Nielsen, Director of the Office of Refugee Resettlement Scott Lloyd, Chief of the U.S. Border Patrol Carla Provost, and Director of the Executive Office for Immigration Review James McHenry has brought to light egregious omissions on the part of officials. These include the failure to maintain basic records of the number of children actually separated or to voice known concerns about the cruel consequences of family separation.

The colossal gaps in record-keeping and stunning silence on the part of the administration regarding the foreseeable trauma inflicted by forcing families apart has exacerbated the suffering of thousands of individuals. The lack of documentation further heightens the uncertainty detained asylum seekers face about their children’s whereabouts and wellbeing, and when or if they will be reunited with them. When so many “bureaucratic failures” pile up—and especially when they represent such egregious departures from standard procedures—they suggest not simply negligence but a deliberate effort to do harm.

The Global Justice Clinic at New York University School of Law recently made these international law arguments in an amicus brief filed in the Western District of Texas. The brief supports a habeas petition by an asylum seeker who has been detained in El Paso for almost a year without any judicial review of her confinement. Her detention has prolonged her separation from her young child, who was with her when she arrived at the border in March 2018 and was taken from her the next day. (The amicus brief was signed by other legal clinics and law professors with expertise in human rights and immigration law, including former U.N. Special Rapporteur on Torture Juan E. Mendez, as well as Justice in Motion, an organization working at the intersection of refugee, human rights, and immigration law.)

Ending Arbitrary Detention, Reuniting Families and Remedying Torture

Truly ending the horror of family separation—which has been roundly condemned by top U.N. officials and human rights experts, regional human rights bodies, and world leaders—requires ending the practice of arbitrarily detaining asylum seekers. So long as migrants are kept behind bars without any individualized justification, for the illegitimate purpose of deterring migration, reunification will be impossible. And the suffering inflicted by the forcible separation of parents and children will only continue.

By not ordering an end to arbitrary detention of asylum seekers in cases where children have been forcibly separated from their parents, the United States is deliberately causing severe pain and suffering for the impermissible purpose of deterring migration, and that constitutes torture under international law. Moreover, the administration is enabling that torture to continue and impeding justice for the thousands affected by failing to keep records and depriving the public of information about the practices of family separation and arbitrary detention.

Ceasing the ongoing violations is the most urgent priority and the primary, unequivocal obligation of the United States. But it is only the first step. An equally pressing, and perhaps even more daunting, task is to remedy the damage done to thousands of children and parents. The United States has a poor track record in this regard, having historically shirked its obligation to provide effective remedy for torture, at least in the context of the CIA’s secret detention and torture program after 9/11, as the Global Justice Clinic has addressed. (Fionnuala Ni Aolain elaborated on what amount to a “litany of effectively unavailable rights” in her piece for Just Security, “What is the Remedy for American Torture?”)

Some recent lawsuits are beginning to tackle this challenge. Six complaints filed in February by mothers forcibly separated from their children seek monetary compensation from the government for the resulting harm, under the Federal Tort Claims Act. In September, a class action suit was filed seeking compensation and the creation of a mental-health treatment fund for children traumatized by family separation.

It remains to be seen whether the U.S. government will assert immunity or other exceptions in these cases in an effort to maintain impunity for torture. What is certain is that many more such suits and other legal advocacy strategies will be needed to begin to right these atrocious wrongs and, crucially, to prevent them from happening again.


IMAGE: LOS ANGELES, CA: Honduran father Victor walks with his daughter Katie near Metropolitan Detention Center, shortly after he was released on bond from six months in ICE custody. (Photo by Mario Tama/Getty Images)