The incarceration of children is inhumane

Since 2020, U.S. Customs and Border Protection has carried out almost 643,000 expulsions using Title 42, without conducting required screenings. That’s illegal under U.S. and international law.

SAXTONS RIVER — “A lot of the girls here cry a lot,” a 17-year-old Guatemalan girl told a Reuters reporter in June. “A lot of them end up having to talk to someone because they have thoughts of cutting themselves.”

“There is no one here I can talk to about my case. There's also no one here I can talk to when I'm feeling sad. There's no one here; I just talk to God. It helps me and I cry,” said another teenage girl from Honduras who was held in the Kay Bailey Hutchison Convention Center Dallas with 2,600 other kids.

It gets worse when you read press reports written over the summer. Kids in custody reported spoiled food, no clean clothes, sleeping on cots under glaring lights, drinking spoiled milk when there isn't water.

According to The New York Times, a military base in El Paso detained youth who said they'd gone days without showering, while in Erie, Pa, lice were rampant.

In June, roughly 4,000 unaccompanied children were being held by the Department of Health and Human Services (HHS), a step up from detention by the U.S. Immigration and Customs Enforcement, but still in facilities where press is not permitted.

No one denies that growing numbers of immigrants seeking asylum in the U.S. present a difficult problem. The Biden administration understands and has worked to alleviate the suffering.

Still, the incarceration of children is inhumane.

As Leecia Welch, a lawyer at the National Center for Youth Law, told The New York Times in May, “thousands of traumatized children are still lingering in massive detention sites on military bases or convention centers, and many have been relegated to unsafe and unsanitary conditions.”

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That's why there is growing outrage about the continuation of Title 42 as a deportation mechanism, used to keep immigrants out of the country by Donald Trump. President Biden promised to end it but is now allowing it to remain in place indefinitely.

In a letter to the White House, more than 100 groups urged the president to rescind Title 42 expulsions, charging that it violates U.S. refuge law and treaties and that it endangers people seeking protection at the U.S.-Mexican border.

According to Border Report, in Texas, the expulsions are not based on science and expose people being held to violence in Mexico.

Title 42, one of 50 titles within the U.S. Code of Federal Regulations, was established in 1944 to move quarantine authority to the public health sector, but it was sometimes used to control immigration using public health as a rationale.

Well before the Covid pandemic, Donald Trump's advisor, Stephen Miller, suggested applying the Code to close the border to asylum seekers despite being told by lawyers the administration lacked the legal authority.

Human Rights Watch (HRW) argues that “the expulsion policy is illegal and violates the human rights of those subjected to it,” and adds that “U.S. law gives asylum seekers the right to seek asylum upon arrival in the United States, even if they arrive without inspection or prior authorization. Before expelling people who arrive in the U.S., U.S. Customs and Border Protection (CBP) is legally required to conduct non-refoulement screenings to ensure they do not expel people who need protection.”

As described by the United Nations, “Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status.”

Yet since March 2020, CBP has carried out almost 643,000 expulsions using Title 42, without conducting required screenings, thus committing illegal “turnbacks.”

In November a federal district court blocked use of Title 42 in the case of unaccompanied minors, but by the time the Biden administration vowed to end it, more than 13,000 kids had been expelled.

Here's the rub. These kids aren't entering the U.S. with Covid. They get it once they are held in detention because of overcrowding and unhygienic conditions in HHS and CBP facilities. Some children have died in detention.

Along with children, pregnant women, some in labor, have been expelled along with LGBT people, who are particularly vulnerable to violence, even since President Biden took office, according to Human Rights Watch.

HRW also states that the “Convention against Torture and the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, prohibit expulsions or returns in circumstances where people would face a substantial risk of torture or, in the case of the ICCPR, exposure to other ill-treatment.”

“Also, under U.S. law and the 1967 Protocol Relating to the Status of Refuges, to which the U.S. is party, the United States may not return asylum seekers to face threats to their lives or freedom without affording them an opportunity to apply for asylum and conducting a full and fair examination of that claim.”

Nevertheless, by February this year, CBP had carried out more than 520,000 expulsions, according to the American Immigration Council.

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Let's be clear. No one risks their lives or suffers the unimaginable hardships of migration without compelling reasons that include crushing poverty, criminal gangs that kill people and abduct their children, devastating violence, hopelessness, and more. (If you want to know what the journey is really like, read Disquiet by Zülfü Livaneli, or The Mediterranean Wall by Louis-Philippe Dalembert.)

The United Nations holds that asylum-seeking children should never be detained. And still they come by the hundreds of thousands.

That's why the ACLU is moving forward with a lawsuit that seeks to lift the public health order for migrant families and unaccompanied children.

As Lee Gelernt, ACLU's lead lawyer, says, “Time is up” for dealing with this human rights catastrophe.

The kids cutting themselves as they weep couldn't agree more.

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