Clinic Study Concludes that U.S. Family Immigration Detention Violates International Law

A paper released on June 20, 2016 by the Allard K. Lowenstein International Human Rights Clinic at Yale Law School concludes that the United States has violated its international obligations by detaining asylum seekers in jail-like facilities and by providing insufficient safeguards against return to persecution. The release of the paper, U.S. Detention and Removal of Asylum Seekers: An International Human Rights Law Analysis, coincides with both World Refugee Day and the two-year anniversary of the Obama Administration’s decision to detain thousands of women and children fleeing violence in Central America. 

The legal analysis in the report focuses on three different aspects of the immigration detention regime that violate international law. First, the paper observes that the Refugee Convention and the International Convention on Civil and Political Rights, treaties by which the United States has long agreed to be bound, prohibit the government from detaining asylum seekers to punish them or to deter others. Detention may be used only as a measure of last resort and must be based on an individualized finding that there are no less restrictive alternatives available, according to the treaties.

Second, because children enjoy special international legal protections, the United States may not detain children or their families except in open-accommodation facilities.

Finally, the paper examines the U.S. policy of summary removal. Elizabeth Leiserson ’17, a member of the clinic team, explained, “Asylum seekers detained at the border can be turned away after the most minimal processing. The absence of real safeguards creates an unacceptably high risk that individuals with valid asylum claims will be returned to face persecution.”

Lara Domínguez ’16, another author of the paper, summarized the situation. “International law requires states to establish a legal regime premised on the right of asylum seekers to remain at liberty while their immigration proceedings are pending. Unfortunately, the United States has chosen to build its system on a presumption of detention.”

In Washington, D.C., this April, the clinic team presented a draft of the paper to lawmakers, administration officials, and representatives of the United Nations High Commissioner for Refugees.

“Having a chance to discuss the system’s problems face-to-face with policymakers was both exciting and disheartening,” said Adrienne Lee ’ 17, a member of the clinic team. “We got to speak with officials who were interested in our analysis and who take human rights seriously.  But the conversations drove home just how high the obstacles to real change are.” Lee said the clinic would continue to advocate for the human rights of Central American asylum seekers. “The stakes are just too high. It is literally a matter of life or death.”

The Lowenstein Clinic team that prepared the paper began its research at the request of Human Rights First, a New York-based human rights organization that has years of experience advocating for the rights of immigrants and asylum seekers.
The Allard K. Lowenstein International Human Rights Law Clinic is a Law School course that gives students firsthand experience in human rights advocacy under faculty supervision by Clinic Director Jim Silk, Clinical Professor of Law and Hope Metcalf, Executive Director of the Schell Center and Clinical Lecturer in Law.

Named for human rights activist Allard K. Lowenstein, the clinic undertakes a wide variety of projects each term on behalf of human rights organizations and individual victims of human rights abuse.