A hard-hitting new report, “‘Like I’m Drowning’: Children and Families Sent to Harm by the US ‘Remain in Mexico’ Program,” from Human Rights Watch, Stanford University’s Human Rights in Trauma Mental Health Program, and Willamette University’s Child and Family Advocacy Clinic details the damaging impact of the Trump administration’s misleadingly titled Migrant Protection Protocols (MPPs) on the U.S. southern border. The investigation tracks the multifaceted abuses – including assault, rape, extortion, armed robbery, abduction, as well as being forced to live out in the elements – faced by the more than 60,000 migrants forced to “Remain in Mexico,” including infants, unaccompanied youth, pregnant women, and disabled people. According to this policy, asylum seekers must bide their time in lawless border towns while waiting for the chance to press their asylum claims in the United States. The report details how measures introduced during the Covid-19 pandemic have markedly worsened an already dire situation.

Human Rights Watch has previously decried the Trump administration’s policy of separating families on human rights grounds. (The Southern Poverty Law Center published a timeline of the implementation of this policy.) In litigation, the federal government has admitted to separating at least 4,368 children from their parents or guardians, although the numbers are quite likely higher due to lax, and possibly intentionally misleading, recordkeeping by several government agencies. And, as noted by Juan Méndez and Kathryn Hampton at Just Security, the pandemic has provided another pretext for separating families, forcing parents to choose between allowing their children to be released alone from detention or remaining together in a Covid-19 hotspot.

In two weeks’ time, the Biden-Harris administration will thus inherit an immigration system that is in shambles, including asylum and refugee resettlement processes that have been completed degraded by the MPPs and other pitiless policies. The Biden campaign pledged to end the Trump administration’s most inhumane policies, modernize the immigration system, reassert a commitment to asylum seekers and refugees (including those fleeing gender-based and gang violence), surge humanitarian resources to the southern border, raise the refugee cap to 125,000, and tackle the root causes of irregular migration.

At the same time, the incoming administration will immediately be substituted as the defendant in a number of ongoing lawsuits challenging and seeking redress for the Trump administration’s border policies. As such, Biden will need to determine whether to continue defending these policies in court and resisting efforts to achieve legal redress for the harms caused.

Separated for 5 ½ Months

One such case is D.J.C.V. & G.C. v. United States, which is pending in the Southern District of New York. In May 2018, G.C. and his 19-month-old son, D.J.C.V., fell victim to the Trump administration’s brutal child separation policy. They remained separated for 5 ½  months, with the father held in various Department of Homeland Security facilities around the country and his child in the custody of foster homes arranged by the Department of Health and Human Services’ Office of Refugee Resettlement (ORR).

Throughout this ordeal, G.C. had no information about his son’s whereabouts or well-being. DHS officials in Immigration and Customs Enforcement (ICE) threatened to deport G.C. without his son. The authorities also conditioned the possibility of reunion on G.C.’s agreement to waive his and his son’s asylum claims and right to non-refoulement, which is supposed to protect individuals from being removed to a place where they may face torture.

Heartbreakingly, when they were finally allowed short visits, D.J.C.V. did not recognize his father. A court finally ordered their reunification in October 2018, noting that the pair had suffered the cruelest of cruelties. Along the way, Citizenship and Immigration Services (USCIS) in DHS conducted the interview G.C. was entitled to receive to gauge whether he had “reasonable fear” of harm were he to be returned to his native Honduras. CIS determined that he could not be removed from the United States because his life or freedom would be threatened in Honduras.

Father and son have now sued the U.S. government for damages, with representation from the Center for Constitutional Rights and the firm of Morgan, Lewis & Bockius. In their complaint, the plaintiffs advance claims under the Federal Tort Claims Act (FTCA) for the intentional and negligent infliction of emotional distress and negligence and under the Alien Tort Statute for torture and crimes against humanity (persecution and inhumane acts).

Meeting the Definition of Torture

In particular, the complaint argues that Trump’s “zero tolerance” separation policy, in design and execution, meets the U.S. statutory and international law definitions of torture, i.e., the intentional infliction of severe physical or mental pain or suffering for the purpose of intimidation, discrimination, coercion, or punishment. (The Torture Victim Protection Act doesn’t apply because it allows for torture claims only against individuals who act “under actual or apparent authority, or color of law, of any foreign nation,” which excludes the U.S. personnel involved in this case).

The government has moved to dismiss the case on a number of grounds, including the argument that plaintiffs cannot sue the government under the FTCA for enforcing federal immigration laws or for exercising discretionary functions. At issue is the fact that G.C. has a criminal record dating from 2010, which excluded him from a class action (Ms. L. v. ICE) filed on behalf of parents seeking to reunite with their children and ostensibly gave the government discretionary grounds to refuse to either release him into the community or house him in a residential center with his son. The government also argued that the ATS claims fail on sovereign immunity grounds.

In opposition to the motion to dismiss, I joined an amicus curiae brief with colleagues from Stanford University’s Human Rights in Trauma Mental Health Program: Dr. Daryn Reicherter and Dr. Ryan Matlow. Drawing upon established research on the physical and psychological changes and mental health pathologies caused by extreme trauma, the brief argued that forcible separation inflicts severe pain and suffering – mental and physical – on both parents and children. When it comes to little D.J.C.V. in particular, who was separated from his father during a critical stage of his development, the brief notes:

Harm from separation is particularly but unsurprisingly pronounced in early childhood development and may adversely affect a child’s psychological health and neurological functioning in both the short and long-term. … The combination of threat, danger, and/or trauma in childhood within the context of disrupted attachment – known as developmental trauma – has been associated with particular long-term negative outcomes that are more pervasive than specific mood, anxiety, or posttraumatic stress disorders, including broad deficits and difficulties in emotion and somatic regulation, attention and behavioral regulation, identity development, and interpersonal functioning.

We argue that whether or not a course of conduct constitutes torture must be assessed on the basis of its cumulative effect on the survivors. The brief notes that the trauma of forced family separation is likely to “significantly worsen psychological outcomes by compounding the prior traumas experienced by children seeking refuge in the United States (commonly including abuse, discrimination, traumatic loss, and exposure to violence).” The brief also argues that the policy was intentionally implemented for impermissible purposes, namely to punish, coerce, deter, and intimidate asylum seekers on discriminatory grounds (given that family separation was primarily implemented against people from Latin America arriving at the southern border). All told, the brief concludes that G.C. and D.J.C.V. suffered torture under both the international and U.S. definitions.

For the Purposes of Deterring, Intimidating, or Punishing

In this regard, the complaint echoes findings by the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment that:

detention based solely on migration-status, as such, can also amount to torture, most notably where it is being intentionally imposed or perpetuated for purposes such as deterring, intimidating, or punishing irregular migrants or their families, coercing them into withdrawing their requests for asylum, subsidiary protection or other stay, agreeing to voluntary repatriation, providing information or fingerprints, or with a view to extorting money or sexual acts, or for reasons based on discrimination of any kind, including discrimination based on immigration status.

The non-profit Physicians for Human Rights (PHR) has made similar determinations, based on psychological evaluations of a number of asylum seekers (parents and children) who manifested pervasive symptoms that are consistent with exposure to severe trauma and that met the diagnostic criteria for a range of mental health conditions, such as post-traumatic stress syndrome, major depressive disorder, and anxiety. My own analysis, drawn from cross-cultural psychological literature, appeared earlier at Just Security here, here, and here).

Our brief joins a suite of other amicus briefs in support of G.C. and D.J.C.V.:

  • a brief on behalf of human rights organizations and international law experts arguing that Trump’s family separation policy constituted a “widespread and systemic attack” on a civilian population so as to constitute a program of crimes against humanity;
  • a brief on behalf of leading U.S. constitutional law scholars (Erwin Chemerinsky, Susan Bandes, Martin Flaherty, Eric Freedman and Burt Neuborne) arguing that the United States should not be entitled to sovereign immunity for the commission of jus cogens violations, i.e., serious human rights abuses that can never be lawfully authorized;
  • a brief on behalf of family law and Reconstruction scholars (Peggy Davis, Martha Minow, Dorothy Roberts, Lea VanderVelde) describing the echoes in America’s antebellum South, when enslaved families were forcibly separated, and how the Reconstruction Congress enacted the 13th Amendment and 14th Amendment’s due process protections with these very horrors in mind;
  • a brief from leading U.S. human rights organizations and former Special Rapporteurs on Torture explicating the requirement under international law that victims of human rights violations be afforded a meaningful remedy in court;
  • a brief on behalf of a broad coalition of U.S. immigrant rights organization arguing that the high-level official design of the family separation policy indicates an intention to maximal cruelty against nonwhite migrants so as to deter future asylum seekers; and
  • a brief on behalf of leading federal jurisdiction scholars (Steve Vladeck, Greg Sisk and Larry Yackle) arguing that the discretionary function exception to the FTCA does not immunize decisions that violate the constitutional rights of individuals, such as the right to due process.

As Human Rights Watch’s report argues, it is not enough for the Biden-Harris administration to simply reverse course; it must also think creatively, and empathetically, about how to ensure restorative justice, including potential forms of restitution, reparation, and rehabilitation, such as psycho-social support; renewed and expedited immigration proceedings and relief; a stable immigration status in the United States while proceedings are pending; a public acknowledgement of the harms caused; and pledges that these violations will never be repeated.

IMAGE: An asylum seeker staying at the Juventud 2000 migrant shelter in Tijuana, Baja California State, Mexico, sprays disinfectant on tents on April 3, 2020 as stronger cleaning measures are being implemented to fight the novel coronavirus, COVID-19, pandemic. Thousands of migrants overcrowding shelters or begging in the streets in Mexican cities along the US border are living in fear as the novel coronavirus spreads in the population and screening interviews for asylum seekers are being suspended. (Photo by GUILLERMO ARIAS/AFP via Getty Images)