Blog
Published on November 19, 2020
by Kennji Kizuka
The Trump Administration is summarily sending refugees seeking protection from persecution or torture to immigration jail. They are often held there for months, or even years, denying them the prompt case-by-case custody assessments required by treaties that the United States has ratified.
In other words, the Trump Administration is breaking the law.
A group of detained refugees in Virginia is seeking to secure their due process rights via class-action lawsuit. In October 2019, the U.S. Court of Appeals for the 4th Circuit sided with them, rejecting the government’s claim that they may detain them without so much as a custody hearing.
The case, Pham v. Guzman Chavez, et al, has now moved to the Supreme Court. Last week, Human Rights First filed an amicus brief urging the Court to uphold the federal appeals court ruling.
In recent years, Human Rights First has stepped up our filing of lawsuits on behalf of refugees as well as our submission of legal briefs in cases involving refugees. This general legal advocacy is one pillar of our far-ranging effort to protect the human rights of refugees, an effort that also includes direct legal representation of asylum seekers, research and reporting, and policy advocacy in Washington.
All the plaintiffs in Pham v. Guzman, et al had been deported, but came back to the United States because they needed refugee protection. Upon their return, asylum officers found that they had a “reasonable fear” of persecution or torture in their home countries. The issue in the case, however, isn’t the validity of their request for protection – it’s the legality of their prolonged arbitrary detention.
The specific question in the case is how to interpret U.S. federal laws, including the Immigration and Nationality Act. Our brief, which ten eminent legal scholars joined, points out that the Trump administration’s interpretation “would deny to many individuals seeking refugee protection, including families with children, the rights and safeguards the United States is obligated to provide under…international treaties.”
Those treaties, including the International Covenant on Civil and Political Rights, prohibit detention without a case-specific assessment. This means that authorities cannot throw refugees who return to our shores seeking protection into immigration jail without a hearing – which is exactly what they have been doing. The burden is on the government to prove in a hearing before a neutral authority that the detention of a particular person is reasonable, necessary, and proportionate. Detention must be a last resort.
It’s undeniable both that the U.S. government has ratified treaties that prohibit mandatory detention and that the U.S. government must abide by those treaties. As our brief says, “Since the earliest days of the republic, this Court has recognized that domestic statutes must be read in light of this nation’s binding international treaty obligations.”
That’s not all. The government’s arbitrary detention of refugees threatens another right guaranteed by both international and U.S law. The Refugee Convention, to which the United States is bound to respect, prohibits governments from deporting refugees back into danger. This is the principle of non-refoulment.
But the emotional and logistical burdens that detention places on refugees may cause them to abandon their pursuit of protection. Our brief cites the case of a teacher from Somalia whose wife and daughter were murdered by extremist groups. He escaped to the United States and requested asylum, only to endure two years of detention in inhumane conditions. Beaten down and re-traumatized, he ultimately stopped fighting his illegal detention and was deported back into the danger he had fled.
The 4th Circuit was correct to rule that refugees can’t be arbitrarily jailed: the law guarantees refugees individualized assessments of their detention. The Supreme Court should do the same.
