On the Other Side of the “Wall” | Psychiatry and Behavioral Health | JAMA Forum Archive | JAMA Network
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JAMA Forum Archive, 2012-2019: Health policy commentary from leaders in the field
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On the Other Side of the “Wall”

“If giving water to someone dying of thirst is illegal, what humanity is left in the law of this country?” That’s what a volunteer with the humanitarian organization No More Deaths asked after a federal court ruled against volunteers who left water and beans in the desert to save migrants’ lives. The court found them guilty of abandoning property in a protected wilderness refuge; the US Fish and Wildlife Service had declared it illegal to leave food, water, or medical supplies.

Image: Eblis/Getty Images

In fact, the federal government is violating national and international law by mistreating migrants, violating rights to health and humane treatment—whether waiting in Mexico, returned to Central America, or on US soil. What is happening to vulnerable migrants on the other side of the wall?

The Trump administration’s policy to deter migrants comes amid a surge in asylum seekers, reaching 300 000 in 2017, with 43% originating from the Northern Triangle of Central America—Guatemala, Honduras, and El Salvador, mostly families and children. Many were imperiled by gang violence. Women face domestic violence. LGBT people are persecuted. Men who refuse to join gangs, or act as informants, are murdered.

The flow of asylum seekers runs counter to broader border-crossing trends. with apprehensions in 2017 at their lowest in 37 years. Apprehensions were increased in 2018, but remain half the 1 million apprehensions in 2006, and much less the 1.6 million in 2000. The vast majority of asylum seekers pass the “credible fear” interview. The immigration court backlog of 1 million cases results in hearing delays of often several years.

Even when hearings occur, they are perfunctory, with gapping disparities in outcomes depending on the judge: 35% were granted asylum, and 65% were denied. Most families have no lawyer. Women and children are far less likely to have legal representation than asylum seekers overall; and race or ethnicity is a strong predictor of whether individuals access representation. Those with legal representation are many times more likely to receive asylum.

There is a human crisis at the border, but that crisis is exacerbated by administration policies, which violate legal obligations, including the Immigration and Nationality Act (INA), the 1951 Refugee Convention and its 1967 Protocol, and the human rights to health and to life.

Asylum Law

Many administration roadblocks are unlawful. In November, the administration proclaimed that only those entering legal ports of entry could seek asylum, yet within 2 weeks, a federal judge blocked the policy, finding it violated the INA. Asserting capacity limits, the US Customs and Border Protection (CBP) agency will process only 40 to 100 asylum seekers per day.

More drastic still, the administration recently wants asylum seekers to remain in Mexico until their hearings, which will face legal challenges. The Refugee Convention and INA forbid returning asylum seekers to countries where their life or freedom would be threatened. A fear would exist for asylum seekers, such as LGBT people or women facing domestic violence. Their persecutors may have followed them to Mexico. The INA requires fair procedures for processing asylum seekers, but grave doubts exist whether Mexico would meet that standard.

Immigration court delays and speeding up deportations led former US Attorney General Jeff Sessions to establish a quota for immigration judges to clear 700 cases per year, threatening due process rights. He also ruled that domestic or gang violence was not grounds for asylum. In December, a federal court permanently enjoined the policy, ruling that Sessions exceeded his authority in establishing a categorical ban.

Rights to Health and Life

The health impacts are disconcerting. Along the border, asylum seekers are forced to wait extended periods. Thousands of migrants languish in crowded, underserviced, and retched camps at the border.

In a “squalid” camp in Tijuana, migrants are sleeping outside, with significant risk of disease. Indeed, poor health has now become “rampant at temporary shelters,” including mental health stressors. People in migrant camps, especially women, are targets of violence. Administration policies force migrants to endure inhumane conditions, undermining US obligations to respect the right to health. The INA and Refugee Convention give officials no discretion to turn asylum seekers away. Moreover, unhealthful conditions compel many to end their quest for asylum, returning to the violence that threatens their lives. Ethically and legally, the United States should be a safe refuge for those in mortal fear, but the opposite is occurring.

Once in the United States, the Customs and Border Protection agency is supposed to transfer asylum seekers to Immigration and Customs Enforcement (ICE) within 72 hours. It was in Customs and Border Protection custody that 2 Guatemalan children died in December, leading to the promise of thorough health assessments.

Then, with ICE detention centers full and under a 1997 court ruling that prohibits the government from detaining children for more than 20 days, families are released. Mass releases overwhelm the capacity of local nonprofits. As they wait months or years for a hearing, asylum seekers are generally ineligible for Medicaid or nutritional benefits (but may be eligible for state-funded safety nets). The right to health extends to everyone, regardless of immigration status.

Meanwhile, the administration is keeping most adult asylum seekers in detention,  violating its own policy guidance. Indefinite detention awaiting a hearing violates the Constitution’s right to due process. In detention, migrants face poor care, including “substantial delays in accessing care, unqualified or insufficient medical personnel, and refusal of care.”

Forcing immigration judges to speed through cases means that some asylum seekers will never get their day in court, and border policies hinder asylum seekers’ ability to prepare their cases and communicate with attorneys. Thus, many facing threats to their life and freedom will be returned home, putting their lives at serious risk.

Legal Reforms

Ending harmful policies at the border and in immigration courts is necessary to comply with the law and human rights. So are better health screenings for children—and permitting good Samaritans to leave lifesaving provisions in the desert.

More, though, is needed to fix the asylum system. To end unlawful policies and safeguard health rights requires greater protection for migrants. Human rights treaties provide more fully delineated grounds of nondiscrimination, including a category of “other status,” which has been further elaborated upon by the UN Committee on Economic and Social Rights. Immigration courts must be speedy and fair, with a guaranteed legal representation. Impartial judges must be appointed, without politicizing the judicial process, to prevent extreme variation in asylum grant rates.

Sadly, the law says little about unhealthful and unsafe conditions faced by asylum seekers, other than a general requirement that human rights must not depend on migratory status. All migrants should be guaranteed humane and safe conditions, including nutrition, medical care, and protection against violence.

Furthermore, asylum seekers should be guaranteed full due process rights; disparities in grant rates between asylum seekers with and without representation leave no doubt that many legitimate asylum seekers are forced to return to horrific conditions at home. They should not be left in limbo in Mexico, but if they are, they must live in conditions of safety and well-being.

These reforms would be at least a step forward toward bringing the law in line with humanity. That is what is happening on the other side of the border wall. Health and human rights requires we do more to safeguard the most vulnerable among us.

About the author: Lawrence O. Gostin, JD, is University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University Law Center, and Director of the World Health Organization Collaborating Center on Public Health Law and Human Rights. His most recent book is Global Health Law (Harvard University Press).  (Image: Georgetown University Law Center)
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