Abstract
Next we will consider ‘constructive refoulement’ (or arguably refoulement proper in the ordinary sense) by the United States and Mexico of unaccompanied child refugee asylum seekers from Central America in violation of the Refugee Convention non-refoulement principle. It is here argued that such a strategy of refoulement of an identifiable class of persons-here unaccompanied minors of Central American national origin (whether the children had already entered the U.S. and then were removed, or were at the Mexican-U.S. border and turned back or whether instead blocked by extraterritorial measures) violates Mexico’s and the United States’ special protection obligations in regards to ‘unaccompanied child refugee asylum seekers’ and in regards to the non-refoulement obligation more generally. This is the case as these children for the most part, if not in every case, face political and other violence (i.e. gang violence) in their home country. The UNHCR has held also gang violence adequate to recognize these children as refugees under the Refugee Convention:
At this particular time, UNHCR is aware of and has worked to understand the increasing numbers of unaccompanied and separated children arriving in the United States from Central America. Recognizing that many of these children are in need of international protection, UNHCR has taken the view that the refugee definition, found in Article 1 of the 1951 Convention relating to the Status of Refugees and Article 1 of the 1967 Protocol relating to the Status of Refugees, should be read to encompass claims from Central American children fleeing gang recruitment and/or gang related harms (emphasis added).
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Notes
- 1.
Amnesty International Public Statement (24 July, 2015) Index: ASA 23/2157/2015 Cambodia and the question of voluntariness: “International law prohibits “constructive” refoulement, which occurs when states use indirect means to carry out refoulement… it follows directly from the principle of non-refoulement: the involuntary return of refugees would in practice amount to refoulement” at p. 1 https://www.amnesty.org/download/Documents/ASA2321572015ENGLISH.pdf Accessed 14 October, 2017.
- 2.
In Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Circ. 2013) (en banc) a child from El Slavador was granted asylum in the U.S. after testifying in the prosecution of gang members who had murdered her father.
- 3.
United Nations High Commissioner on Refugees (November, 2016) UNHCR (Asylum Lawyers’ Project) UNHCR’s Views on Child Asylum Claims: Using international law to support claims from Central American children seeking protection in the US at p. 1 http://www.unhcr.org/582226064.pdf Accessed 10 October, 2017.
- 4.
Hansford, B and Dobbs, L for UNHCR ‘UNHCR calls on the Americas to keep children on the run safe from violence’ (12 March, 2014) http://www.unhcr.org/en-us/news/latest/2014/3/53206a3d9/unhcr-calls-americas-keep-children-run-safe-violence.html (accessed 25 June, 2017).
Child specific forms of persecution are varied and include but are not limited to child soldiering, child trafficking, female genital mutilation, child slave labor, gang recruitment and targeting for gang violence etc.
- 5.
Resettlement in a third country is one possible durable solution if the asylum country itself, while providing temporary protection, has not agreed to recognize the child as a refugee who will be integrated fully into the community and eventually have permanent residence status on some legal basis.
- 6.
UNHCR Resettlements Submission Categories http://www.unhcr.org/558bff849.pdf Accessed 10 October, 2017 (see also UNHCR The UN, Refugee Agency: FAQ about refugee resettlement (February, 2017) at p. 4 http://www.unhcr.org/en-us/protection/resettlement/4ac0873d6/frequently-asked-questions-resettlement.html Accessed 8 October, 2017.
- 7.
Lee, E. Y. H. (Immigration Reporter at Think Progress) UN officials seek refugee label for kids coming into America alone, 8 June, 2014 https://thinkprogress.org/u-n-officials-seek-refugee-label-for-kids-coming-into-america-alone-277764f84b7d Accessed 25 June, 2017.
- 8.
United Nations High Commissioner on Refugees (November, 2016) UNHCR (Asylum Lawyers’ Project) UNHCR’s Views on Child Asylum Claims: Using international law to support claims from Central American children seeking protection in the US at p. 7 http://www.unhcr.org/582226064.pdf Accessed 10 October, 2017.
- 9.
United Nations High Commissioner on Refugees (November, 2016) UNHCR (Asylum Lawyers’ Project) UNHCR’s Views on Child Asylum Claims: Using international law to support claims from Central American children seeking protection in the US at p. 7 http://www.unhcr.org/582226064.pdf Accessed 10 October, 2017.
- 10.
United Nations High Commissioner on Refugees (November, 2016) UNHCR (Asylum Lawyers’ Project) UNHCR’s Views on Child Asylum Claims: Using international law to support claims from Central American children seeking protection in the US at p. 8 http://www.unhcr.org/582226064.pdf Accessed 10 October, 2017.
- 11.
United Nations High Commissioner on Refugees (November, 2016) UNHCR (Asylum Lawyers’ Project) UNHCR’s Views on Child Asylum Claims: Using international law to support claims from Central American children seeking protection in the US at p. 9 http://www.unhcr.org/582226064.pdf Accessed 10 October, 2017.
- 12.
Grover (2014).
- 13.
Grover (2015), pp. 1112–1128. See also Amnesty International Report 2017/2018: The State of the World’s Human Rights (Violations by Syrian Forces and Allies...) at p. 351.
- 14.
United Nations High Commissioner on Refugees (November, 2016) UNHCR (Asylum Lawyers’ Project) UNHCR’s Views on Child Asylum Claims: Using international law to support claims from Central American children seeking protection in the US at p. 7 http://www.unhcr.org/582226064.pdf Accessed 10 October, 2017.
- 15.
For instance children may be considered as persecuted in Refugee Convention terms where they are targeted as children for certain traditional practices that may be deemed to be violent and/or an infringement on the security of the person that violates the basic human dignity of the child and his/her right to be protected from violence and sexual exploitation (bacha bazi in Afghanistan where the boys may, in many instances, be sexually violated by adult males).
- 16.
UNHCR Handbook of Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees paras 51–53 (reedited January, 1992).
- 17.
See also Inter-American Commission on Human Rights (11 November, 2015): Violence, children and organized crime Available at http://www.oas.org/en/iachr/reports/pdfs/violencechildren2016.pdf Accessed 24 October, 2017.
- 18.
See UNHCR Handbook of Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees paras 51–53 (reedited January, 1992) at para 62.
- 19.
J.E. F.M. v. Lynch United States Federal Court of Appeals for the Ninth District No. 15-35738 and 15-35739 (Decision 20 September, 2016) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 20.
Kids in Need of Defense (KIND) (an NGO founded by Angelina Jolie and Microsoft Corporation to assist unaccompanied children) https://supportkind.org/wp-content/uploads/2017/06/General-KIND-Fact-sheet_June-2017.pdf 12 October, 2017.
- 21.
Connolly, H, Crellin, R, and Parhar, R (Research Report, August 2017) An update to ‘Cut Off From Justice’: The impact of excluding migrant and separated children from legal aid (University of Bedfordshire and The Children’s Society) Available at https://www.basw.co.uk/resource/?id=6736 Accessed 12 October, 2017 (Note that under the UK Legal Aid, Punishment and Sentencing of Offenders Act 2012 (LASPO) that entered into force in 2013; children requesting asylum or who have been trafficked would be eligible for legal aid but children who have been granted temporary leave to stay in the UK would not be eligible for legal aid (that is they would be ineligible for funding for legal assistance in attempting to regularize their legal status so that they can stay indefinitely in the UK)).
- 22.
The Vulnerability Screening Tool: Identifying and Addressing Vulnerability: A Tool for Migration and Asylum Systems at p. 1 http://www.refworld.org/pdfid/57f21f6b4.pdf Accessed 10 October, 2017.
- 23.
UNHCR Conclusion on Children at Risk (2007): Conclusion on Children at Risk (2007), No. 107 (LVIII) Executive Committee 56th session. Contained in United Nations General Assembly document A/AC.96/1048 http://www.unhcr.org/en-us/excom/exconc/4717625c2/conclusion-children-risk.html Accessed 30 June, 2017.
- 24.
UNHCR (2009) Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees http://www.unhcr.org/afr/publications/legal/50ae46309/guidelines-international-protection-8-child-asylum-claims-under-articles.html Accessed 10 October, 2017.
- 25.
UNHCR (2012) A Framework for the Protection of Children at p. 22 Children http://www.unhcr.org/en-us/protection/children/50f6cf0b9/framework-protection-children.html Accessed 10 October, 2017.
- 26.
UN High Commissioner for Refugees (UNHCR), Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, February 1997, available at: http://www.refworld.org/docid/3ae6b3360.html Accessed 11 October 2017.
- 27.
Convention on the Rights of the Child, entered into force 2 September, 1990, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx Accessed 30 June, 2017.
Article 12:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
- 28.
Convention on the Rights of the Child, entered into force 2 September, 1990, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx Accessed 12 October, 2017.
Article 22:
1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention (emphasis added). http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx Accessed 30 June, 2017.
- 29.
In the two cases discussed previously in chapter four; child asylum seekers effectively had no chance to be heard i.e. in Case 1:AA v [UK] Secretary of State for the Home Department High Court of Justice, Queens Bench (Administrative Court), Case No: CO/920/2015 [2016] EWHC 1453 (Admin) the child refugee was by virtue of an immigration officer’s belief or impression detained and then kept in detention even after child status was established by objective evidence (the Court held that the UK Home Secretary did not do a careful review which would at that point have properly allowed for release of the child from detention) while in Case 2: Abdullahi Elmi and Aweys Abubakar v Malta, (Application No. 25794/13 and 28151/13) the European Court of Human Rights Chamber Judgment 22 November, 2016; the two child refugee asylum seekers were subjected to mandatory detention which did not end even after it was determined they were children and they had no effective opportunity to have their detention order reviewed by an immigration appeal board.
- 30.
UNHCR Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009 at p. 3, point 1 http://www.refworld.org/pdfid/4b2f4f6d2.pdf Accessed 7 October, 2017.
- 31.
UNHCR (United Nations High Commissioner on Refugees) Conclusion on Children at Risk (2007), No. 107 (LVIII) Executive Committee 56th session. Contained in United Nations General Assembly document A/AC.96/1048 http://www.unhcr.org/en-us/excom/exconc/4717625c2/conclusion-children-risk.html Accessed 30 June, 2017.
- 32.
Note that “children may have independent claims to refugee status” (i.e. based on child-specific persecution etc.) apart from the claims-meritorious or not-of persons accompanying them (See United Nations High Commissioner on Refugees (November, 2016) (UNHCR Asylum Lawyers’ Project) UNHCR’s Views on Child Asylum Claims: Using international law to support claims from Central American children seeking protection in the US at p. 2 http://www.unhcr.org/582226064.pdf Accessed 10 October, 2017).
- 33.
J.E. F.M. v. Lynch, United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 34.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016), Case Summary (Children’s Rights International Network) https://www.crin.org/en/library/legal-database/je-fm-v-lynch Accessed 1 February, 2018.
- 35.
J.E. F.M. v. Lynch, (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) Case Summary (Children’s Rights International Network) https://www.crin.org/en/library/legal-database/je-fm-v-lynch Accessed 1 February, 2018.
- 36.
All references (in the context of this case) to ‘the statute’ (or statute as amended) refer to the U.S. Immigration and Naturalization Act and the process it sets out for review of deportation orders including the Act’s stipulations regarding the exclusive jurisdiction (once the immigration proceedings have been exhausted) of the Federal Courts of Appeals to consider judicial review of a final deportation order.
- 37.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 3 (Summary) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 38.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 6: Opinion: “We underscore that we address only the jurisdictional issue, not the merits of the claims.” https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 39.
8 U.S.C. §§ 1252(b)(9) and 1252(a)(5).
- 40.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 10 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 41.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 18 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 42.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 9 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 43.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 9 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 44.
As mentioned in this work previously, on the view here, asylum seekers are not illegal (unlawful) or irregular or undocumented immigrants but rather persons who can potentially assert a proper claim for asylum as a refugee and who have not then performed an illegal act in crossing a border without proper documents to seek asylum.
- 45.
American Civil Liberties Union; Young, Scared, Alone and In Court: J.E. F.M. v. Lynch, Update June 24, 2016.
- 46.
New York Times Editorial Board: Migrant children deserve a voice in court (March 8, 2016).
- 47.
The District Court had dismissed the claims of the children who had not yet had an immigration hearing holding that their right-to-counsel claim was not yet ripe suggesting their removal proceedings might never be held which at best seems an unlikely best case scenario for these children who were under immigration scrutiny (see J.E. F.M. v. Lynch et al. at p. 8).
- 48.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 6 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017 (Some of the children do not show up for the deportation hearing no doubt not understanding the process or what is required or out of fear given that they are unrepresented and alone).
- 49.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 7 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 50.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 7 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 51.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 6 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 52.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at pp. 18–19 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 53.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 21 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 54.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 6 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 55.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 6 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 56.
Recall that neither the immigration judge nor the Board of Immigration Appeal was authorized under the statute at issue to appoint counsel for an unaccompanied indigent child in deportation proceedings (see J.E. F.M. v. Lynch United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 25 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017).
- 57.
See for example UN High Commissioner for Refugees (UNHCR), Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, February 1997, available at: http://www.refworld.org/docid/3ae6b3360.html Accessed 11 October 2017.
- 58.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 59.
UN High Commissioner for Refugees (UNHCR), Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, February 1997, point 4.2 at p. 5 and point 8.3 at p. 12 available at: http://www.refworld.org/docid/3ae6b3360.html Accessed 11 October 2017.
- 60.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 61.
Rogers, D (Politico) (20 September, 2016) Child migrants lose major case in federal court http://www.politico.com/story/2016/09/child-migrants-immigration-228432.
- 62.
Rogers, D (Politico) (20 September, 2016) http://www.politico.com/story/2016/09/child-migrants-immigration-228432.
- 63.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 64.
Protocol relating to the Status of Refugees entry into force 4 October, 1967 extended the protection of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 also to persons who became refugees after 1 January 1951.
- 65.
The right to seek asylum including refugee asylum is arguably part of customary law and hence such requests must be handled humanely and justly by all States.
- 66.
UNHCR Protocol relating to the Status of Refugees entry into force 4 October, 1967 http://www.ohchr.org/Documents/ProfessionalInterest/protocolrefugees.pdf (Accessed 7 November, 2016).
- 67.
Kids in Need of Defense (KIND) (founded by Angelina Jolie and Microsoft Corporation to assist unaccompanied children wherever they are) https://supportkind.org/wp-content/uploads/2017/06/General-KIND-Fact-sheet_June-2017.pdf Accessed 12 October, 2017.
- 68.
Rogers, D (Politico) (20 September, 2016) http://www.politico.com/story/2016/09/child-migrants-immigration-228432.
- 69.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 70.
Neither the immigration judge nor the Board of Immigration Appeals was empowered to order court-appointed counsel for the indigent unaccompanied minors in their removal proceedings (and judicial review by the Federal Court of Appeals was only possible after a final deportation order) (See J.E. F.M. v. Lynch (U.S. Attorney General) United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 24 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 71.
Large numbers of the child appellees in the case were child refugee asylum seekers and likely genuinely in need of international protection from persecution rather than being purely ‘economic migrants’ given UNHCR data on the profile of Central American and Mexican unaccompanied children arriving irregularly near or at the U.S. border or entering the U.S. without authorization or proper entry documents: See UNHCR Washington (2014) Children on the Run: Unaccompanied children leaving Central America and Mexico and the need for international protection Available at https://resourcecentre.savethechildren.net/library/children-run-unaccompanied-children-leaving-central-america-and-mexico-and-need Accessed 13 October, 2017.
- 72.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 30 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 73.
Amnesty International Public Statement (24 July, 2015) Index: ASA 23/2157/2015 Cambodia and the question of voluntariness at p. 1 https://www.amnesty.org/download/Documents/ASA2321572015ENGLISH.pdf Accessed 14 October, 2017.
- 74.
Trac Immigration Research Centre (affiliated with the Newhouse School of Public Communications and the Whitman School of Management, University of Syracuse) (Report 28 September, 2017) Children: Amid a Growing Court Backlog Many Still Unrepresented http://trac.syr.edu/immigration/reports/482/ Accessed 15 October, 2017.
- 75.
Cole (2003), pp. 367–388 at p. 370: “The Court [U.S. Supreme Court] has repeatedly stated that ‘the “Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.’”
- 76.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 15 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 77.
The policy at the time of the case at bar was as follows: “Under expedited removal, unless they establish a credible fear of persecution or torture, foreign nationals arriving in the United States from Mexico without proper documentation can be returned to their countries of origin, without immigration court removal hearings… It is well documented that officials fail to adequately screen asylum seekers for fear of return before ordering them deported—violating the non-refoulement principle of Article 33 of the Refugee Convention.” [President Trump’s new executive orders direct] “DHS [U.S. Department of Homeland Security] to ensure that applicants for admission arriving on land from Mexico and Canada are returned to those countries to await their removal proceeding in the United States…Sending asylum seekers back to Mexico for any length of time would violate U.S. domestic and international obligations [of non-refoulement]… If the United States sends asylum seekers back to Mexico pending a formal removal proceeding, there is a significant likelihood that Mexico would send those asylum seekers back to their countries of origin. Reports show that Mexico has increasingly been deporting asylum seekers to their countries of origin without providing them an opportunity to present their claims to protection.” (See Harvard Law School: Harvard Immigration and Refugee Clinical Program: The impact of President Trump’s Executive Orders on asylum seekers at p. 7.
- 78.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 29 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 79.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 15 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 80.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 16 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 81.
Note that Eric Holder who was the U.S. Attorney General in 2014 took the position that “these children may not have a Constitutional right to a lawyer” though he maintained there were “policy reasons” and also “a moral obligation” to provide counsel to unaccompanied indigent children in immigration deportation proceedings J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 29 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017. On the view of the current author there is a constitutional right to a lawyer for these unaccompanied children in such circumstances as one necessary precondition for due process.
- 82.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 24 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 83.
It is telling that the unaccompanied children’s claim to right-to-counsel in this case was characterized as a political matter rather than being viewed strictly through a constitutional lens: “…the Executive and Congress have the power to address this crisis without judicial intervention…solving the representation problem is a highly controversial political matter…” (emphasis added) (See J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 4 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017. In the case at bar, on the view here, it would appear that substantive (constitutional issues) could not properly be divorced from purely statutory jurisdictional questions despite the Federal Court of Appeals attempting that tack.
- 84.
One of the Justices in the case at bar held that the Federal Court of Appeals had no option but to rule as it did since the justices “…must heed the Supreme Court’s admonition that “[f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” However, on the analysis here, the constitution requires that statutes alleged inconsistent with the Constitution must be read to be consistent or else struck (in part or in whole as pertinent). Here the unaccompanied minors requested that the statute be read to exempt them from the bar against accessing the Federal District Court to make rights-to-counsel claims such that they could be represented by court appointed counsel in their deportation proceedings (See J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 26 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 85.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 16 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
In McNary the appellees were successful in their assertion that the District Court had jurisdiction to hear their case under the relevant statute at the time.
- 86.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 17 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
In MacNary the U.S. Supreme Court held that the statute at that time did not address the constitutional issues the agricultural workers in the case (the appellees) were raising and that they thus had the right to access judicial review in the District Court.
- 87.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 88.
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).
- 89.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at pp. 21–22 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 90.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 22 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 91.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 22 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 92.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 25 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 93.
INA refers to the US Immigration Naturalization Act.
- 94.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 25 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 95.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 25 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 96.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 25 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 97.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 22 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 98.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at pp. 22–23 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 99.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 25 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 100.
Recall that the unaccompanied indigent minors in J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) argued they should have the right to petition for court-appointed counsel at the District Court level rather than having to wait until the immigration proceedings in their case were exhausted and a final deportation order issued.
- 101.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at pp. 23–24 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 102.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at pp. 23–24 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 103.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 104.
UNHCR (2009) Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees point 2 at p. 3.
- 105.
J.E. F.M. v. Lynch (US Attorney General) et al., United States Federal Court of Appeals for the Ninth District (Decision 20 September, 2016) at p. 31 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017.
- 106.
Eagly, I, Esq. and Shafer, S Esq. (Special Report 28 September, 2016) American Immigration Counsel, ‘Access to Counsel in Immigration Court’: “It has long been the case that immigrants have a right to counsel in immigration court, but that expense has generally been borne by the noncitizen. Because deportation is classified as a civil rather than a criminal sanction, immigrants facing removal are not afforded the constitutional protections under the Sixth Amendment that are provided to criminal defendants.” https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court Accessed 12 October, 2017.
- 107.
Kids in Need of Defense (KIND) (an NGO founded by Angelina Jolie and Microsoft Corporation to assist unaccompanied children https://supportkind.org/wp-content/uploads/2017/06/General-KIND-Fact-sheet_June-2017.pdf 12 October, 2017.
- 108.
Referring here to lack of adequate ‘screening’ of children as possible victims of trafficking crimes and/or as children seeking refugee asylum which under the U.S. domestic statute specifically the ‘Trafficking Victims Protection Reauthorization Act’ (2008)’ would bar refoulement and necessitate an immigration hearing.
- 109.
Lutheran Immigration and Refugee Service (2014) Unaccompanied migrant children: U.S. law and policy backgrounder ‘Protecting the best interests of all children’ http://lirs.org/wp-content/uploads/2014/07/UAC-Law-and-Policy-FINAL.pdf Accessed 12 October, 2017.
- 110.
UNHCR Washington (2014) Children on the Run: Unaccompanied children leaving Central America and Mexico and the need for international protection Available at https://resourcecentre.savethechildren.net/library/children-run-unaccompanied-children-leaving-central-america-and-mexico-and-need Accessed 13 October, 2017.
- 111.
UNHCR Washington (2014) Children on the Run: Unaccompanied children leaving Central America and Mexico and the need for international protection Available at https://resourcecentre.savethechildren.net/library/children-run-unaccompanied-children-leaving-central-america-and-mexico-and-need Accessed 13 October, 2017.
- 112.
American Immigration Lawyers Association ‘Whitehouse releases details on Border security principles and policies, President Trump Memorandum to the U.S. Department of Homeland Security ‘Secure the Border by Deterring and Swiftly removing Illegal Entrants’ (9 October, 2017) Available at http://www.aila.org/infonet/wh-details-border-security-principles-and-policies Accessed 10 October, 2017.
- 113.
Nakamura, David (2017) Trump administration ends Obama-era protection program for Central American minors Washington Post, August 16, 2017.
- 114.
Nakamura, D Washington Post (16 August, 2017) Trump administration ends Obama-era protection program for Central American minors https://www.washingtonpost.com/politics/trump-administration-ends-obama-era-protection-program-for-central-american-minors/2017/08/16/8101507e-82b6-11e7-ab27-1a21a8e006ab_story.html?utm_term=.e5367d0aea9f Accessed 20 October, 2017.
- 115.
UNHCR Washington (2014) Children on the Run: Unaccompanied children leaving Central America and Mexico and the need for international protection Available at https://resourcecentre.savethechildren.net/library/children-run-unaccompanied-children-leaving-central-america-and-mexico-and-need Accessed 13 October, 2017.
- 116.
These migration control tactics inconsistent with international human rights and humanitarian law norms have included, for instance, expedited return-removal without an immigration hearing (as is permitted under U.S. law when the child comes from a country contiguous to the U.S. such as Mexico and has arrived irregularly at or near the U.S. border (as opposed to having entered the U.S. interior) and the frontline border agent of the Department of Homeland Security having concluded that the child allegedly does not have a valid asylum request and allegedly is not the victim of trafficking (see American Immigration Council (2015) A Guide to children arriving at the border: Laws, policies and responses https://www.americanimmigrationcouncil.org/research/guide-children-arriving-border-laws-policies-and-responses Accessed 13 October, 2017). The tactics also include, for instance, failure to consider ‘child-specific’ forms of persecution (i.e. the child having been targeted for gang violence in the home country precisely due to his/her vulnerability as a child) as ‘persecution’ in Refugee Convention terms. The latter then may lead to refoulement based on this erroneous assessment of whether there was a history of persecution suffered by the child and/or there is real threat of persecution in the home country
- 117.
United States v Aguilar 883 F.2d 662 (U.S. Court of Appeals Ninth Circuit) Decided March 30, 1989. As amended on Denial of Rehearing and Rehearing En Banc April 14, 1989 at para 2.
- 118.
United States v Aguilar 883 F.2d 662 (U.S. Court of Appeals Ninth Circuit) Decided March 30, 1989. As amended on Denial of Rehearing and Rehearing En Banc April 14, 1989.
- 119.
United States v Aguilar 883 F.2d 662 (U.S. Court of Appeals Ninth Circuit) Decided March 30, 1989. As amended on Denial of Rehearing and Rehearing En Banc April 14, 1989 para 3.
- 120.
Maun (2011), p. 451.
- 121.
Maun (2011), p. 453.
- 122.
Maun (2011), p. 454.
- 123.
Department of (U.S.) Homeland Security In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central American Minors—CAM) https://www.uscis.gov/CAM Accessed 20 October, 2017.
- 124.
Kopan, Tal DHS [United States Department of Homeland Security] ends program for Central American minors (16 August, 2017) http://www.cnn.com/2017/08/16/politics/trump-ending-central-american-minors-program/index.html.
- 125.
That is the parent in Honduras, El Salvador and Guatemala.
- 126.
Department of (U.S.) Homeland Security In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central American Minors—CAM) pre expansion of eligibility criteria guidelines https://www.uscis.gov/CAM Accessed 20 October, 2017.
- 127.
Department of (U.S.) Homeland Security In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central American Minors—CAM) https://www.uscis.gov/CAM Accessed 20 October, 2017.
- 128.
U.S. Department of State: Expansion of the CAM Program In-Country Refugee Processing for Minors in Honduras, El Salvador and Guatemala (January 20, 2017) https://www.state.gov/j/prm/releases/factsheets/2017/266363.htm Accessed 20 October, 2017.
- 129.
Department of (U.S.) Homeland Security In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central American Minors—CAM) https://www.uscis.gov/CAM Accessed 20 October, 2017.
- 130.
United States Citizenship and Immigration Services Update on Central American Minors Program (CAM) November 15, 2017: “On Nov. 9, 2017, the Department of State stopped accepting new applications for the Central American Minors (CAM) refugee program. USCIS [United States Citizenship and Immigration Services] will stop interviewing CAM cases on Jan. 31, 2018. After that date, individuals with pending applications who have not been interviewed will receive a notice with further instructions. The CAM program was established in 2014 to provide certain minors in El Salvador, Guatemala, and Honduras the opportunity to be considered, while still in their home country, for refugee resettlement in the United States. Individuals who were determined to be ineligible for refugee status were then considered by USCIS for the possibility of entering the United States under parole. The parole portion of the CAM program was terminated in August 2017. (emphasis added)” https://www.uscis.gov/CAM.
- 131.
UNHCR Conclusion on Children at Risk (2007) at p. 4 No. 107 (LVIII) Executive Committee 56th session. Contained in United Nations General Assembly document A/AC.96/1048 http://www.unhcr.org/en-us/excom/exconc/4717625c2/conclusion-children-risk.html (accessed 30 June, 2017).
- 132.
The United States Refugee Admissions Program (USRAP) Consultation & Worldwide Processing Priorities (US Citizenship and Immigration webpage).
- 133.
The Guardian (Nina Lakhani in Mexico City reporting) Thousands of young Central Americans at risk as refugee ban halts key program, 2 February, 2017.
- 134.
U.S Department of State, U.S Department of Homeland Security, U.S. Department of Health and Human Services. Proposed Refugee Admissions for 2014 submitted on behalf of the U.S. President to the Committees on the Judiciary, United States Senate and United States House of Representatives at p. 1.
- 135.
U.S Department of State, U.S Department of Homeland Security, U.S. Department of Health and Human Services. Proposed Refugee Admissions for 2014 submitted on behalf of the U.S. President to the Committees on the Judiciary, United States Senate and United States House of Representatives at p. 2.
- 136.
U.S Department of State, U.S Department of Homeland Security, U.S. Department of Health and Human Services. Proposed Refugee Admissions for 2014 submitted on behalf of the U.S. President to the Committees on the Judiciary, United States Senate and United States House of Representatives at p. 2.
- 137.
Under new immigration guidelines; President Trump has drastically cut the number of refugees to be permitted for resettlement in the U.S. in the coming year which cap will stand unless successfully defeated in the courts.
- 138.
U.S Department of State, U.S Department of Homeland Security, U.S. Department of Health and Human Services. Proposed Refugee Admissions for 2014 submitted on behalf of the U.S. President to the Committees on the Judiciary, United States Senate and United States House of Representatives at pp. 7–8.
- 139.
U.S Department of State, U.S Department of Homeland Security, U.S. Department of Health and Human Services. Proposed Refugee Admissions for 2014 submitted on behalf of the U.S. President to the Committees on the Judiciary, United States Senate and United States House of Representatives at p. 3.
- 140.
Korthuis (2016).
- 141.
A study by the United Nations High Commissioner on Refugees (UNHCR) involved the UNHCR interviewing 404 unaccompanied children between the ages of 12 and 17 who had arrived at the U.S. border (often through Mexico) from Central America and others from Mexico as their place of origin during or after October 2011 and found that “58 % …of [the] children interviewed were forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection” Cited in Korthuis (2016) (primary source: UNHCR Children on the Run (2014)).
- 142.
Korthuis (2016).
- 143.
Korthuis (2016).
- 144.
Naar, L February 9, 2016) The extraterritoriality of the principle of non-refoulement: A critique of the Sale case and Roma case (London School of Economics blog) http://blogs.lse.ac.uk/humanrights/2016/02/09/the-extraterritoriality-of-the-principle-of-non-refoulement-a-critique-of-the-sale-case-and-roma-case/ (Accessed 24 February, 2017).
- 145.
Recall that there was no movement toward the U.S. ratifying the Convention on the Rights of the Child under Obama and that Article 22 of the CRC addresses the rights of refugee children including unaccompanied such children to “receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention [CRC] and in other international human rights or humanitarian instruments to which the said States are Parties.”
- 146.
Cited in Korthuis (2016) (primary source: Remarks by President Obama, 6 January, 2015 following bilateral meeting with President Penieto of Mexico).
- 147.
Cited in Korthuis (2016) (primary source: Remarks by President Obama, 6 January, 2015 following bilateral meeting with President Penieto of Mexico).
- 148.
UNHCR (2014) Children on the Run: Unaccompanied children leaving Central America and Mexico and the need for international protection at pp. 54–55 Available at http://www.unhcr.org/en-us/about-us/background/56fc266f4/children-on-the-run-full-report.html Accessed 20 October, 2017.
- 149.
UNHCR Children on the Run (2014) at p. 3 Available at http://www.unhcr.org/en-us/about-us/background/56fc266f4/children-on-the-run-full-report.html Accessed 20 October, 2017.
- 150.
UNHCR Children on the Run (2014) at p. 42 Available at http://www.unhcr.org/en-us/about-us/background/56fc266f4/children-on-the-run-full-report.html Accessed 20 October, 2017.
- 151.
Human Rights Watch (2016). Closed doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children (31 March, 2016) https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-refugee-and-migrant-children Accessed 20 October, 2017.
- 152.
Human Rights Watch (2016). Closed doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children (31 March, 2016) https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-refugee-and-migrant-children Accessed 20 October, 2017.
- 153.
Human Rights Watch (2016). Closed doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children (31 March, 2016) at p. 5 https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-refugee-and-migrant-children Accessed 20 October, 2017.
- 154.
Human Rights Watch (2016). Closed doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children (31 March, 2016) at pp. 4–5 https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-refugee-and-migrant-children Accessed 20 October, 2017.
- 155.
Human Rights Watch (2016). Closed doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children (31 March, 2016) at p. 5 https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-refugee-and-migrant-children Accessed 20 October, 2017.
- 156.
Human Rights Watch (2016). Closed doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children (31 March, 2016) https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-refugee-and-migrant-children Accessed 20 October, 2017.
- 157.
“ …when a control procedure takes place in the territory of a third state and the … State involved does not exert effective control over the persons concerned, the examination of the asylum claims may take place in that third state only if there are guarantees that the non-refoulement principle and other protection standards will be fully ensured.” See Vandvik (2008).
- 158.
The child’s right to asylum under CAM then is not assessed with respect to the child’s possible independent right to refugee asylum as an autonomous person in his/her own right on a basis separate and apart from the issue of family reunification.
- 159.
Supreme Court of the United States Donald J. Trump, President of the United States et al v International Refugee Assistance Project et al. 582 U. S. ____ (2017) (26 June, 2017).
- 160.
It is as yet an unanswered question whether the USSC rule in the Trump travel ban case will be let stand and whether it conforms to the 1980 U.S. Refugee Act and other relevant U.S. statutory law (the immigration and naturalization statute). The USSC rule referred to here is that a foreign national who is a refugee must have a bona fide tie to a U.S. entity or person before (1) he/she can be considered for the U.S. admission/resettlement program and if successful in that program and in the U.S. vetting system gain entry to the U.S. or before (2) he/she can enter the U.S. on his/her own without proper documents and then apply for U.S. refugee asylum or do so at a land or water port of entry to the U.S. with any chance of success in obtaining asylum.
- 161.
See Supreme Court of the United States, Donald J. Trump, President of the United States v International Refugee Assistance Project et al. 582 U. S. ____ (2017).
- 162.
On January 27, 2017 American President Donald Trump issued Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.”. That order, on the respectful view here, epitomizes the denial of collective refugee asylum rights leading to a denial of such rights on the individual level. In part the Executive Order (1) banned for a period of 90 days entry into the United States of persons from seven designated countries; Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen who did not have their entry documents by a specified date in the Executive Order; (2) suspended the United States’ Refugee Admissions/Resettlement Program barring all refugees entry for 120 days (with waivers potentially available on a case-by-case basis as per specified grounds) with a direction that once the Refugee resettlement program was resumed that the Secretary of State was to prioritize refugees claiming religious persecution where the religion of the asylum seeker was a minority religion in the country of national origin, and (3) denied entry to the United States of Syrian refugees indefinitely. A second Executive Order issued March 6, 2017 modified the travel ban by, among other things, omitting Iraq as one of the countries of origin from which foreign nationals would be barred under the aforementioned conditions (leaving now Iran, Libya, Somalia, Sudan, Syria, and Yemen as the countries covered by the 90 day suspension), removing the indefinite bar against Syrian refugees being included in the U.S. resettlement program and instead including them also in a 120 day suspension of the U.S. resettlement program and removing a preference in resettlement (once the program resumed) for persons of a minority religion in their homeland. The third iteration of the Trump travel ban included also the following additional countries (Chad, North Korea and Venezuela) however Chad has now been dropped from the list as targeted for the suspension of travel from those states to the U.S. by foreign nationals who did not have entry papers by the specified date (with certain exceptions and particular country-specific application as articulated ). Travel ban 3.0 is titled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” and pertains then to suspension (with no expiry date specified) now of travel to the United States from Iran, Libya, North Korea, Syria, Venezuela, Somalia and Yemen by foreign nationals who did not have the required papers permitting entry to the U.S. by the designated date (the refugee resettlement program was reactivated with additional vetting October 24, 2017). See Fact Sheet on the Trump Travel Ban 3.0 released September 24, 2017 and updated April 10, 2018 https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-capabilities-and-processes.
The Proclamation is dated September 24, 2017 and scheduled to take effect 18 October, 2017.
- 163.
Persons with a visa who would otherwise have been excluded under the travel ban did not have their visas revoked and previously arranged visa application appointments were not cancelled by U.S. immigration authorities (Jarrett, L and Labott, E CNN Travel ban 2.0 in effect, court challenges begin, 30 June, 2017).
- 164.
The U.S. government, hours before implementation of the Executive Order, set out and released to the public a list of categories of persons with whom, if the foreign national had a bona fide familial relationship, the government would as a consequence allow entry to the foreign national who posed no security or other known risk to the U.S. The list included “a parent, spouse, fiancée, child, adult son, or daughter, son-in-law, daughter-in-law or sibling in the U.S. ” (Jarrett, L and Labott, E CNN Travel ban 2.0 in effect, court challenges begin, 30 June, 2017).
- 165.
If the tie between the foreign national and the U.S. person or legal entity was created for the purpose of avoiding the travel ban it was not to be considered a bona fide tie and would not exempt the foreign national from the Trump travel ban.
- 166.
The Guardian (Nina Lakhani in Mexico City reporting) Thousands of young Central Americans at risk as refugee ban halts key program, 2 February, 2017.
- 167.
The Guardian (Nina Lakhani in Mexico City reporting) Thousands of young Central Americans at risk as refugee ban halts key program, 2 February, 2017.
- 168.
Supreme Court of the United States, Donald J. Trump, President of the United States v International Refugee Assistance Project et al. 582 U. S. ____ (2017) (26 June, 2017).
- 169.
Refugee children, under the United States’ CAM program, must have a parent legally present in the US. to be eligible to participate in that resettlement program which is based on family reunification.
- 170.
See FN130 supra.
- 171.
Donald J. Trump, President of the United States, et al., Applicants v. Hawaii, et al. (Opinion of December 4, 2017).
- 172.
Supreme Court of the United States, Donald J. Trump, President of the United States v International Refugee Assistance Project et al. 582 U. S. ____ (2017) (26 June, 2017).
- 173.
Margulies, P The EO stay “The government doubles down on excluding grandparents and refugees (4 July, 2017).
- 174.
Supreme Court of the United States, Donald J. Trump, President of the United States v International Refugee Assistance Project et al. 582 U. S. ____ (2017) (26 June, 2017).
- 175.
The USSC rule regarding a bona fide relationship with a U.S. entity stipulated that the tie to the legal entity in the U.S. must have been formed in the ordinary course and not to evade the Trump travel ban.
- 176.
Supreme Court of the United States, Donald J. Trump, President of the United States v International Refugee Assistance Project et al. 582 U. S. ____ (2017) at p. 12.
- 177.
United States Court of Appeal for the Ninth Circuit, State of Hawaii; Ishmail Elshikh v Donald J Trump et al (7 September, 2017) at p. 34 http://cdn.ca9.uscourts.gov/datastore/general/2017/09/07/17-16426%20Opinion%20Filed.pdf Accessed 17 October, 2017.
- 178.
The U.S. Refugee Act adopts the definition of refugee found in the Refugee Convention as “a person who is unable or unwilling to return to his or her home country because of a ‘well-founded fear of persecution’ due to race, membership in a particular social group, political opinion, religion, or national origin” American Immigration Council, An overview of U.S. Refugee Law and Policy (November 18, 2015). Note that while the U.S. is not a party to the Refugee Convention it is a party to the 1967 Protocol to the Convention (having acceded in 1968 to the 1967 Protocol) and is legally bound by articles 2 to 34 of the Convention (see McCuiston 2014, p. 532).
- 179.
Supreme Court of the United States, Donald J. Trump, President of the United States v International Refugee Assistance Project et al. 582 U. S. ____ (2017).
- 180.
Boston College Third World Journal The Disproportionate Effect of the Entry Fiction on Excludable Aliens, 9 B.C. Third World L.J. 271 (1989), (Accessed 4 June, 2017).
- 181.
The targeted countries of origin in the Trump travel ban has changed from only selected specified Muslim-majority countries to now including in the third iteration of the travel ban also two non-Muslim majority countries (Venezuela and North Korea).
- 182.
See Coffey, K (2000) The due process right to seek asylum in the United States: The immigration dilemma and constitutional controversy, Yale Law and Policy Review, 19(2), 303–339 at p. 309.
- 183.
David Miliband (2017). IRC responds to administration’s arbitrary and cruel travel ban guidelines. Press release 29 June, 2017, David Miliband President and CEO of the International Rescue Committee (IRC) Note that the family category was later broadened.
- 184.
Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit Brief of the Amicus Curiae Human Rights First (Formerly known as The Lawyers Committee for Human Rights) in Support of Appellees at p. 6, August 3, 2017.
- 185.
Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit, On Appeal from the U.S. District Court for the District of Hawaii, No. 1:17-cv-00050-DKW-KSC (Derrick K. Watson, J.) Brief of the Amicus Curiae Brief of Committee for Refugees and Immigrants, August 9, 2017 at p. 11.
- 186.
Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit, On Appeal from the U.S. District Court for the District of Hawaii, No. 1:17-cv-00050-DKW-KSC (Derrick K. Watson, J.) Brief of the Amicus Curiae Brief of Committee for Refugees and Immigrants, August 9, 2017 at p. 11.
- 187.
Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit Brief of the Amicus Curiae Human Rights First (Formerly known as The Lawyers Committee for Human Rights) in Support of Appellees at p. 8, August 3, 2017.
- 188.
The refugee considered for resettlement to the U.S. in most cases is first referred by the UNHCR, a U.S. Embassy or designated NGO for resettlement to the U.S. There are some categories of prospective refugees to the U.S., however, such as Iraqis who assisted the U.S. military who can apply to the U.S. refugee admission program directly under a special federal government programme rather that having to go through the U.N. referral system See Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit Brief of the Amicus Curiae Human Rights First (Formerly known as The Lawyers Committee for Human Rights) in Support of Appellees at p. 7, August 3, 2017.
- 189.
The State of Hawaii also argued that a refugee abroad who had a tie to a U.S. legal assistance program should be considered to have met the criterion for an exemption of the Trump travel ban in their case.
- 190.
Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit, On Appeal from the U.S. District Court for the District of Hawaii, No. 1:17-cv-00050-DKW-KSC (Derrick K. Watson, J.) Brief of the Amicus Curiae Brief of Committee for Refugees and Immigrants, August 9, 2017 at p. 20.
- 191.
Similarly the State of Hawaii argued that the U.S. government, in contravention of the USSC ‘bona fide relationship rule’, was still unlawfully excluding refugees abroad from entry to the U.S. who had a bona fide relationship to a U.S. entity: “The Supreme Court’s guidance with respect to refugee admissions is straightforward: The injunction continues to apply where a U.S. entity “has a bona fide relationship with a particular” refugee such that the entity “can legitimately claim concrete hardship if that person is excluded. The Government has nonetheless issued guidance stating that “a formal assurance for a refugee seeking admission is not sufficient in and of itself to establish a qualifying relationship for that refugee” Emergency Motion to Clarify Scope of Emergency Injunction, State of Hawaii et al v Donald J Trump, President of the United States and others, Court of Appeals for the Ninth District 7 July, 2017 at p. 16.
- 192.
Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit, On Appeal from the U.S. District Court for the District of Hawaii, No. 1:17-cv-00050-DKW-KSC (Derrick K. Watson, J.) Brief of the Amicus Curiae Brief of Committee for Refugees and Immigrants, August 9, 2017 at p. 19.
- 193.
United States District Court of the District of Hawaii, State of Hawaii and Ismail Elshikh v Donald J. Trump in his official capacity as President of the United States, John F. Kelly in his official capacity as Secretary of Homeland Security and Rex Tillerson in his official capacity as Secretary of State; United States of America: Emergency Motion to Clarify the Scope of Preliminary Injunction Washington, D.C 29 June, 2017 (hereafter State of Hawaii and Ismail Elshikh v Donald J. Trump et al, emergency motion) The District Court dismissed the motion and held that the scope of the injunction on the Trump second travel ban should be clarified by the United States Supreme Court as it was that Court that had formulated the rule on the scope of the injunction and to what extent and in what respects the Trump travel ban (Executive Order 2) could be implemented. The State of Hawaii then appealed to the Appeals Court of the Ninth Circuit to clarify the rule fashioned by the Supreme Court of the United States regarding to what extent the Trump travel ban applied and to what extent it was enjoined (State of Hawaii v Donald J Trump, Appeals Court of the Ninth Circuit No. 17-16366.
- 194.
Hawaii et al v Trump et al In the United States District Court for the District of Hawaii Order Denying Plaintiffs’ Emergency Motion to Clarify Scope of Preliminary Injunction Civil No. 17-00050 DKW-KSC; July 6, 2017.
- 195.
Hawaii et al v Trump et al United States Court of Appeals for the Ninth District D.C. (Denial of appeal of the district court’s July 6, 2017 denial of Plaintiffs’ “Emergency Motion to Clarify Scope of Preliminary Injunction) No. 1:17-cv-00050-DKW-KSC July 7, 2017.
- 196.
State of Hawaii et al (Plaintiffs-Appellees) v Donald J Trump President of the U.S. et al (Defendants-Appellants) In the United States Court of Appeals for the Ninth District On Appeal from the United States District Court for the District of Hawaii, Reply Brief for the Appellants August 9, 2017 at pp. 4–5.
- 197.
State of Hawaii et al (Plaintiffs-Appellees) v Donald J Trump President of the U.S. et al (Defendants-Appellants) In the United States Court of Appeals for the Ninth District On Appeal from the United States District Court for the District of Hawaii, Reply Brief for the Appellants, August 9, 2017 at p. 6.
- 198.
Trump, President of the U.S. et al v Hawaii et al Order List 582 U.S.__2017 (16-1540, 16A1191) Wednesday, July 19, 2017 Available for down load under miscellaneous order 07/19/17 https://www.supremecourt.gov/orders/ordersofthecourt/16 (Accessed 19 August, 2017).
- 199.
Donald J. Trump, President of the United States et al v International Refugee Assistance Project et al, Supreme Court of the United States, On Application for a Stay and Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth District 582 U. S. ____ (2017) Opinion Per Curiam of June 26, 2017.
- 200.
Zapotosky, M (7 September, 2017) (The Washington Post) Grandparents, refugees with formal assurances can enter under Trump travel ban, appeal court rules https://www.washingtonpost.com/world/national-security/grandparents-refugees-with-formal-assurances-can-enter-under-trumps-travel-ban-appeals-court-rules/2017/09/07/d0763ca8-9415-11e7-8754-d478688d23b4_story.html?utm_term=.2b867e415c17 Accessed 17 October, 2017.
- 201.
United States Court of Appeal for the Ninth Circuit, State of Hawaii; Ishmail Elshikh v Donald J Trump et al (7 September, 2017) at p. 34 http://cdn.ca9.uscourts.gov/datastore/general/2017/09/07/17-16426%20Opinion%20Filed.pdf Accessed 17 October, 2017.
- 202.
Hawaii argued that some if not all of these family relations are considered close family ties in Hawaii but were excluded by the U.S. federal government as ‘approved’ family ties for the purpose of exemption from the Trump travel ban. Further Hawaii argued that the Supreme Court in the case at bar had made it clear that under its order immediate family (familial bona fide relationships) were not limited to the relationships set out in the Immigration Nationality Act but rather extended to the relationships that the Trump implementations guidelines excluded.
- 203.
Donald J. Trump, President of the United States, et al., Applicants v. Hawaii, et al. (Opinion of December 4, 2017).
- 204.
Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit. Per Curiam Opinion, 22 December, 2017 at pp. 70–71.
- 205.
Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit, On Appeal from the U.S. District Court for the District of Hawaii, No. 1:17-cv-00050-DKW-KSC (Derrick K. Watson, J.) Brief of the Amicus Curiae Brief of Committee for Refugees and Immigrants, August 9, 2017 at p. 5.
- 206.
Hawaii et al (Plaintiffs-Appellees) v Trump, President of the United States et al (Defendants-Appellants) United Sates Court of Appeals for the Ninth Circuit, On Appeal from the U.S. District Court for the District of Hawaii, No. 1:17-cv-00050-DKW-KSC (Derrick K. Watson, J.) Brief of the Amicus Curiae Brief of Committee for Refugees and Immigrants, August 9, 2017 at p. 9.
- 207.
The USSC rule articulated that the refugee needs to be able to make a “credible claim” regarding the bona fide relationship between the refugee and a person or entity in the US (with lawful status in the US) as the test for an exemption to application of the travel ban in their case See State of Hawaii; Ishmail Elshikh v Donald J Trump et al (7 September, 2017) United States Court of Appeal for the Ninth Circuit at p. 7 Citing the USSC on this point http://cdn.ca9.uscourts.gov/datastore/general/2017/09/07/17-16426%20Opinion%20Filed.pdf Accessed 17 October, 2017.
- 208.
Various European States also have been reluctant to do their fair share in resettlement of refugees fleeing current conflicts such as that in Syria. This serves to undermine the Refugee Convention and the international rule of law by, in effect, eroding respect for international human rights norms through the abysmal treatment these European States have too often afforded these refugees. See Carrera, S and Guid, E (27 January, 2017) for CEPS (Centre for European Policy Studies) Offshore processing of asylum applications. Out of sight, out of mind? https://www.ceps.eu/publications/offshore-processing-asylum-applications-out-sight-out-mind Accessed 20 October, 2017. As mentioned; the U.S. refugee resettlement program was reactivated in October 2017 with new additional vetting and other restrictive stipulations.
- 209.
State of Hawaii, Ismail Elshikh, John Does 1&2 and Muslim Association of Hawaii, Inc. v Donald J Trump in his official capacity as President et al. In the U.S. District Court for the District of Hawaii, ‘Joint Declaration of Former National Security Officials’ (15 October, 2017) p. 6 Available at https://www.hoganlovells.com/publications/documents-in-state-of-hawaii-et-al-v-trump-a-challenge-to-president-trumps-march-6-2017-travel-ban Accessed 19 October, 2017.
- 210.
State of Hawaii, Ismail Elshikh, John Does 1&2 and Muslim Association of Hawaii, Inc. v Donald J Trump in his official capacity as President et al. In the U.S. District Court for the District of Hawaii, ‘Joint Declaration of Former National Security Officials’ (15 October, 2017) pp. 7–8 Available at https://www.hoganlovells.com/publications/documents-in-state-of-hawaii-et-al-v-trump-a-challenge-to-president-trumps-march-6-2017-travel-ban Accessed 19 October, 2017.
- 211.
The reference here is to unaccompanied child refugees from Central America and Mexico arrived irregularly—that is without authorization—to the US southern border in search of asylum.
- 212.
In the U.S. District Court for the District of Hawaii, State of Hawaii, Ismail Elshikh, John Does 1&2 and Muslim Association of Hawaii, Inc. v Donald J Trump in his official capacity as President et al ‘Joint Declaration of Former National Security Officials’ (15 October, 2017) pp. 9–10 Available at https://www.hoganlovells.com/publications/documents-in-state-of-hawaii-et-al-v-trump-a-challenge-to-president-trumps-march-6-2017-travel-ban Accessed 19 October, 2017.
- 213.
Australia has gone so far as to outsource its extraterritorial blanket refugee control measures. This by taking by force refugees attempting to arrive to Australia by boat to remote offshore locations such as Nauru where Australia funds a so-called refugee processing centre. See Amnesty International (2016) Island of despair: Australia’s ‘processing’ of refugees on Nauru “Although asylum-seekers and refugees on Nauru are not technically detained, because they are able to move around the island, they are nonetheless in a detention-like environment. Nauru is to all intents and purposes an open-air prison that people cannot leave, even when they have been officially recognized as refugees.” At p. 4 Available at https://www.amnesty.org/en/documents/asa12/4934/2016/en/ Accessed 20 October, 2017.
- 214.
The Trump guidelines exclude the resettlement program and local U.S. sponsors as ‘approved’ U.S. entities for the purpose of establishing a bona fide tie to a U.S. entity and exemption as a refugee from the Trump travel ban.
- 215.
Donald J. Trump, President of the United States v International Refugee Assistance Project et al 582 U. S. ____ (2017).
- 216.
Referring to the Preliminary ruling in Donald J. Trump, President of the United States v International Refugee Assistance Project et al 582 U. S. ____ (2017) regarding which foreign nationals could be barred from entry to the U.S. based on the Trump travel ban.
- 217.
Where the refugee has ties to a US refugee resettlement program this arguably would be a bona fide relationship to the U.S.
- 218.
Donald J. Trump, President of the United States v International Refugee Assistance Project et al 582 U. S. ____ (2017).
- 219.
Jurisdiction is exercised by the U.S. in the U.S. resettlement screening process through US consular or other authorities interviewing the refugee and his or her family abroad, refugee assistance personnel in certain instances interviewing the refugee abroad as well as may occur with the International Rescue Committee for instance which also has U.S. based branches, various US government agencies doing investigations into private matters pertaining to that refugee asylum seeker’s background and security and other status etc.
- 220.
The use of extraterritorial means to block refugee arrival at the border or any port of entry in search of asylum itself is an exercise of jurisdiction over the refugee asylum seekers impacted.
Literature, Materials and Cases
Literature
Cole D (2003) Are foreign nationals entitled to the same constitutional rights as citizens? Thomas Jefferson Law Rev 25:367–388
Grover S (2014) The torture of children during armed conflicts: the ICC failure to prosecute and the negation of children’s human dignity. Springer, Berlin
Grover S (2015) R2P and the Syrian crisis: when semantics becomes a matter of life or death. Int J Hum Rights 19(8):1112–1128
Korthuis A (2016) Outsourcing refoulement: the United States and the Central American Refugee Crisis. Yale J Int Law. http://www.yjil.yale.edu/outsourcing-refoulement-the-united-states-and-the-central-american-refugee-crisis/. Accessed 15 July 2017
Maun K (2011) Sanctuary from de facto deportation: the new sanctuary movement and de facto deportation claims for children challenging illegal immigrant parents’ removal orders. Richmond Public Interest Law Rev 15(2):448–474
McCuiston H (2014) “Membership in a Particular Social Group”: why United States courts should adopt the disjunctive approach of the United Nations High Commissioner for Refugees. St. John’s Law Rev 88(2):531–560
Vandvik B (2008) Extraterritorial border controls and responsibility to protect: a view from ECRE (European Council on Refugees and Exiles). Amsterdam Law Forum. http://amsterdamlawforum.org/article/view/38/40. Accessed 20 Oct 2017
Materials
American Civil Liberties Union; Young, Scared, Alone and In Court: J.E. F.M. v. Lynch Update June 24, 2016 https://www.aclu.org/cases/jefm-v-lynch (Accessed 7 November, 2016)
American Immigration Council (2015) A Guide to children arriving at the border: Laws, policies and responses (26 June, 2015) https://www.americanimmigrationcouncil.org/research/guide-children-arriving-border-laws-policies-and-responses Accessed 13 October, 2017
American Immigration Council (2015) An overview of U.S. Refugee Law and Policy (November 18, 2015) https://www.americanimmigrationcouncil.org/research/overview-us-refugee-law-and-policy (accessed 14 July, 2017)
American Immigration Lawyers Association ‘Whitehouse releases details on Border security principles and policies, President Trump Memorandum to the U.S. Department of Homeland Security ‘Secure the Border by Deterring and Swiftly removing Illegal Entrants’ (9 October, 2017) Available at http://www.aila.org/infonet/wh-details-border-security-principles-and-policies Accessed 13 October, 2017
Amnesty International (2016) Island of despair: Australia’s ‘processing’ of refugees on Nauru Available at https://www.amnesty.org/en/documents/asa12/4934/2016/en/ Accessed 20 October, 2017
Amnesty International Public Statement (24 July, 2015) (Index: ASA 23/2157/2015) Cambodia and the question of voluntariness https://www.amnesty.org/download/Documents/ASA2321572015ENGLISH.pd Accessed 14 October, 2017
Amnesty International Report (2017/2018) The state of the world’s human rights. https://www.amnesty-international.be/sites/default/files/bijlagen/air201718-english_2018-02-12_12-36-44.pdf. Accessed 17 April, 2018
Boston College Third World Journal The Disproportionate Effect of the Entry Fiction on Excludable Aliens, 9 B.C. Third World L.J. 271 (1989), http://lawdigitalcommons.bc.edu/twlj/vol9/iss2/4 (accessed 4 June, 2017)
Carrera, S and Guid, E (27 January, 2017) for CEPS (Centre for European Policy Studies) Offshore processing of asylum applications. Out of sight, out of mind? https://www.ceps.eu/publications/offshore-processing-asylum-applications-out-sight-out-mind Accessed 20 October, 2017
Coffey K (2000) The due process right to seek asylum in the United States: The immigration dilemma and constitutional controversy. Yale Law and Policy Review 19(2):303–339
Connolly, H, Crellin, R, and Parhar, R (Research Report, August 2017) An update to ‘Cut Off From Justice’: The impact of excluding migrant and separated children from legal aid (University of Bedfordhire and The Children’s Society) Available at https://www.basw.co.uk/resource/?id=6736 Accessed 12 October, 2017
1951 Convention and 1967 Protocol relating to the Status of Refugees http://www.unhcr.org/en-us/3b66c2aa10 Accessed 30 June, 2017
Convention on the Rights of the Child, entered into force 2 September, 1990. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx Accessed 30 June, 2017
Department of (U.S.) Homeland Security In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central American Minors—CAM) https://www.uscis.gov/CAM Accessed 25 June, 2017
Eagly, I, Esq. and Shafer, S Esq. (Special Report 28 September, 2016) American Immigration Counsel, ‘Access to Counsel in Immigration Court’ https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court Accessed 12 October, 2017
Fact Sheet on the Trump Travel Ban 3.0 released September 24, 2017 and updated April 10, 2018. https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-capabilities-and-processes
Hansford, B and Dobbs, L for UNHCR ‘UNHCR calls on the Americas to keep children on the run safe from violence’ (12 March, 2014) http://www.unhcr.org/en-us/news/latest/2014/3/53206a3d9/unhcr-calls-americas-keep-children-run-safe-violence.html (accessed 25 June, 2017)
Harvard Law School: Harvard Immigration and Refugee Clinical Program: The impact of President Trump’s Executive Orders on asylum seekers Available at https://today.law.harvard.edu/harvard-releases-first-report-effect-trumps-executive-orders-asylum-seekers/ Accessed 15 October, 2017
Human Rights Watch (2016) Closed doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children (31 March, 2016) https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-refugee-and-migrant-children (accessed 17 July, 2017)
Human Rights Watch (2012) Boat Ride to Detention: Adult and Child Migrants in Malta https://www.hrw.org/report/2012/07/18/boat-ride-detention/adult-and-child-migrants-malta (Accessed 5 October, 2017)
Inter-American Commission on Human Rights (11 November, 2015): Violence, children and organized crime Available at http://www.oas.org/en/iachr/reports/pdfs/violencechildren2016.pdf Accessed 24 October, 2017
Jarrett, L and Labott, E (for CNN Politics) Travel ban 2.0 in effect, court challenges begin, 30 June, 2017 http://www.cnn.com/2017/06/29/politics/revised-travel-ban-thursday/index.html (accessed 30 June, 2017)
Kids in Need of Defense (KIND) (founded by Angelina Jolie and Microsoft Corporation to assist unaccompanied children wherever they are) https://supportkind.org/wp-content/uploads/2017/06/General-KIND-Fact-sheet_June-2017.pdf 12 October, 2017
Kopan, Tal DHS [United States Department of Homeland Security] ends program for Central American minors (16 August, 2017) http://www.cnn.com/2017/08/16/politics/trump-ending-central-american-minors-program/index.html
Lutheran Immigration and Refugee Service (2014) Unaccompanied migrant children: U.S. law and policy backgrounder ‘Protecting the best interests of all children’ http://lirs.org/wp-content/uploads/2014/07/UAC-Law-and-Policy-FINAL.pdf Accessed 12 October, 2017
Miliband, D (2017) IRC responds to administration’s arbitrary and cruel travel ban guidelines. Press release 29 June, 2017, David Miliband President and CEO of the International Rescue Committee (IRC) https://www.rescue.org/press-release/irc-responds-administrations-arbitrary-and-cruel-travel-ban-guidelines (accessed 14 July, 2017)
Naar, L (February 9, 2016) The extraterritoriality of the principle of non-refoulement: A critique of the Sale case and Roma case (London School of Economics blog) http://blogs.lse.ac.uk/humanrights/2016/02/09/the-extraterritoriality-of-the-principle-of-non-refoulement-a-critique-of-the-sale-case-and-roma-case/ (Accessed 24 February, 2017)
Nakamura, D (2017) Washington Post (16 August, 2017) Trump administration ends Obama-era protection program for Central American minors https://www.washingtonpost.com/politics/trump-administration-ends-obama-era-protection-program-for-central-american-minors/2017/08/16/8101507e-82b6-11e7-ab27-1a21a8e006ab_story.html?utm_term=.e5367d0aea9f Accessed 20 October, 2017
New York Times Editorial Board: Migrant children deserve a voice in court (March 8, 2016) http://www.nytimes.com/2016/03/08/opinion/migrant-children-deserve-a-voice-in-court.html?_r=2 (Accessed 7 November, 2016)
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UNHCR (2012) A Framework for the Protection of Children http://www.unhcr.org/en-us/protection/children/50f6cf0b9/framework-protection-children.html Accessed 10 October, 2017
UNHCR (United Nations High Commissioner on Refugees) (2014) Children on the run:Unaccompanied children leaving Central America and Mexico and in need of international protection http://www.unhcr.org/en-us/about-us/background/56fc266f4/children-on-the-run-full-report.html Accessed 20 October, 2017
UN High Commissioner for Refugees (UNHCR), Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, February 1997, available at: http://www.refworld.org/docid/3ae6b3360.html Accessed 11 October 2017
UNHCR Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009 at p. 3, point 1 http://www.refworld.org/pdfid/4b2f4f6d2.pdf Accessed 7 October, 2017
UNHCR (United Nations High Commissioner on Refugees) HCR/1P/4/ENG/REV. 3 Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (re-issued December, 2011 ed.) http://www.refworld.org/docid/4f33c8d92.html (Accessed 4 October, 2017)
UNHCR Protocol relating to the Status of Refugees entry into force 4 October, 1967 http://www.ohchr.org/Documents/ProfessionalInterest/protocolrefugees.pdf (Accessed 7 November, 2016)
UNHCR Resettlements Submission Categories (n.d.) http://www.unhcr.org/558bff849.pdf Accessed 10 October, 2017
United Nations High Commissioner on Refugees (November, 2016) (UNHCR Asylum Lawyers’ Project) UNHCR’s Views on Child Asylum Claims: Using international law to support claims from Central American children seeking protection in the US http://www.unhcr.org/582226064.pdf Accessed 10 October, 2017
UNHCR The UN Refugee Agency: FAQ about refugee resettlement (February, 2017) http://www.unhcr.org/en-us/protection/resettlement/4ac0873d6/frequently-asked-questions-resettlement.html Accessed 8 October, 2017
UNHCR Washington (2014) Children on the Run: Unaccompanied children leaving Central America and Mexico and the need for international protection Available at https://resourcecentre.savethechildren.net/library/children-run-unaccompanied-children-leaving-central-america-and-mexico-and-need Accessed 13 October, 2017
United States Refugee Admissions Program (USRAP) Consultation & Worldwide Processing Priorities (Homeland Security). https://www.uscis.gov/humanitarian/refugees-asylum/refugees/united-states-refugee-admissions-program-usrap-consultation-worldwide-processing-priorities (Accessed 23 February, 2017)
U.S Department of State, U.S Department of Homeland Security, U.S. Department of Health and Human Services. Proposed Refugee Admissions for 2014 submitted on behalf of the U.S. President to the Committees on the Judiciary, United States Senate and United States House of Representatives https://www.state.gov/documents/organization/219137.pdf
U.S. Department of State: Expansion of the CAM Program In-Country Refugee Processing for Minors in Honduras, El Salvador and Guatemala (January 20, 2017) https://www.state.gov/j/prm/releases/factsheets/2017/266363.htm Accessed 20 October, 2017
Zapotosky, M (7 September, 2017) (The Washington Post) Grandparents, refugees with formal assurances can enter under Trump travel ban, appeal court rules https://www.washingtonpost.com/world/national-security/grandparents-refugees-with-formal-assurances-can-enter-under-trumps-travel-ban-appeals-court-rules/2017/09/07/d0763ca8-9415-11e7-8754-d478688d23b4_story.html?utm_term=.2b867e415c17 Accessed 17 October, 2017
Cases
AA v [UK] Secretary of State for the Home Department High Court of Justice, Queens Bench (Administrative Court) (Case No: CO/920/2015) [2016] EWHC 1453 (Admin)
Abdullahi Elmi and Aweys Abubakar v Malta, (Application No. 25794/13 and 28151/13) European Court of Human Rights Chamber Judgment 22 November, 2016
Donald J. Trump, President of the United States v International Refugee Assistance Project et al. 582 U. S. ____ (2017) (Supreme Court of the United States, Opinion of June 26, 2017))
Guzman-Heredia v. Gonzales, No. 04-72769 (9th Cir.) Cited in J.E. F.M. v. Lynch United States Federal Court of Appeals for the Ninth District No. 15-35738 and 15-35739 (Decision 20 September, 2016) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf Accessed 10 October, 2017
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Circ. 2013) (en banc)
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Grover, S.C. (2018). Child Refugees and Recent U.S. Migration Control Strategies. In: Child Refugee Asylum as a Basic Human Right. Springer, Cham. https://doi.org/10.1007/978-3-319-78013-9_5
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