President Obama signed an executive order late Friday afternoon ending the Global Gag Rule.
President Obama’s decision
to lift the Global Gag Rule gives me extraordinary reason to rejoice.
I became Pathfinder International’s president in 1985, shortly after
President Reagan imposed the original version of the Global Gag Rule
(also known as the Mexico City Policy). I have openly opposed the gag
rule, working for its repeal ever since.
At Pathfinder, we challenged this harmful policy
in federal court in the late 1980s. Although we did not obtain an outright
victory in the courts, the lawsuit forced the U.S. government to clarify
what activities were legally permissible under the rule, paving the
way for resumption of life-saving post-abortion medical services. Indeed,
that legal challenge revealed to the court that among the repercussions
of the U.S. gag rule were the preventable deaths of women in the globe’s
Pathfinder was the first organization to negotiate
a cooperative agreement with USAID after the implementation of the Mexico
City Policy. And I can tell you from personal observation that the gag
rule was ineffective in doing what its proponents sought or claimed
to seek. It did not reduce abortion. Rather, it resulted in an attack
on the delivery of family planning services–services that by definition
help to reduce the need for abortions. Outstanding providers
of reproductive health services lost critical funding, resulting in
shortfalls of contraceptive supplies and increases in unintended pregnancies.
Dangerous abortions multiplied as responsible service providers stopped
offering safe abortion services for fear of American scrutiny.
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Furthermore, the policy undermined
America’s credibility in promoting democracy and free speech abroad.
Free expression–free speech–is a requirement of a democratic society.
How can we–indeed, how dare we–spend foreign assistance teaching
democratic aspirations on the one hand, and then deny free speech on
the other, when the subject happens to displease us?
In the countries where Pathfinder works, foreign NGOs that rely on American
foreign assistance have been trapped between obeying their nation’s
laws and American policies. The American government’s disregard for
the sovereignty of others and the hypocrisy of American actions, have
not been lost on other countries. Women have been refused services,
or even referral to services without regard to the laws of their land.
NGOs have been denied U.S. funding without consideration for the quality
of care they provided.
Some organizations in less
developed countries chose to resist the gag rule–organizations like
the Family Guidance Association of Ethiopia (FGAE), which Pathfinder
helped establish in the 1960s. FGAE was the very first, and continually
one of the most effective, family planning organizations in the country,
relying heavily on U.S. funding. Their networks extended into the most
rural and impoverished areas, reaching the most vulnerable women. When
President Bush reinstated the gag rule in 2001, they were determined
to continue participating in Ethiopia’s on-going national debate around
unsafe abortion. By them choosing to simply discuss abortion, not only
was Pathfinder forced to sever our relationship with them, they lost
35 percent of their financial resources, donated contraceptives, critical
technical support, and training programs.
Prior to the reinstatement of the
gag rule, Pathfinder‘s criteria for selecting in-country
partners read like a guide on a good management. Our checklist was something like the following:
organization provides the highest quality of care?
is the most cost-effective organization?
organization is managed well?
Which organization has
the best capacity to expand in order to reach the poorest of the poor?
Which organization is the
most sincerely committed to improving the conditions of its people?
However, during the years that
the gag rule was imposed, the overriding criteria that the U.S. government
wished to enforce was whether an organization was sufficiently anti-abortion,
with no regard to anything else.
Today’s repeal of the
Global Gag Rule by President Obama will enable Pathfinder, and a variety of other outstanding
organizations, to once again work with the most effective partners,
bringing family planning services to the women most in need. I applaud
the president for taking bold and immediate action to improve the lives
of women and their families, especially in the world’s most impoverished
However, even as I applaud
and celebrate this decision by America’s new president, I am reminded
of the previous administration’s imposition of the Anti-prostitution
Loyalty Oath, which is still being enforced. The Anti-prostitution Loyalty
Oath requires that any American or foreign organization that receives
U.S. global HIV/AIDS funds must formally pledge their opposition to
prostitution in order to remain eligible for funding. Under this pledge
requirement, recipients are forced to censor even their privately-funded
speech and activities regarding the most effective ways to engage high-risk
groups in HIV prevention. In other words, the United States government
has told private organizations, not just what they must do with U.S.
government funds, but what they must think and believe.
Any organization that works
to address the tragedy of HIV/AIDS in less developed countries must
confront head-on the need to serve sex workers. If there is a single
class of citizens on this planet who are more powerless and desperate,
I wouldn’t know where to find them.
Pathfinder does not believe that it is sound
policy to judge or condemn the very people we endeavor to serve. Furthermore,
we believe that private organizations must insist upon free speech.
Our government also has an obligation to uphold, not infringe upon,
that right. That’s why, several years ago, Pathfinder joined Alliance for Open Society International
in challenging this infringement in federal court. In May 2006, the
court ruled in our favor, agreeing that the anti-prostitution loyalty
oath violates the First Amendment by restricting privately-funded free
speech and forcing organizations to adopt the government’s view point.
Last fall, the court reaffirmed this decision, expanding the case to
include two preeminent public health and humanitarian membership organizations, Global Health Council and
Astonishingly, the U.S. government
is presently appealing this decision. Gag rules and loyalty oaths should
be rejected as politics of the past. While I commend today’s decision,
I appeal to President Obama and his administration to continue fulfilling
his promise to promote science over ideology, to uphold the Constitution,
and affirm that democracy, not dogma, be the hallmarks of the new American
This is the first article in Rewire’s two-part series about the U.S. immigration system’s effects on unaccompanied children.
Earlier this month, three North Carolina high school students were released from a Lumpkin, Georgia, detention center after spending more than six months awaiting what seemed like their inevitable fate: deportation back to conditions in Central America that threatened their lives.
Wildin David Guillen Acosta, Josue Alexander Soriano Cortez, and Yefri Sorto-Hernandez were released on bail in the span of one week, thanks to an overwhelming community effort involving pro bono attorneys and bond money. However, not everyone targeted under the same government operation has been reprieved. For example, by the time reports emerged that Immigration and Customs Enforcement (ICE) had detained Acosta on his way to school in Durham, North Carolina, the government agency had already quietly deported four other young people from the state, including a teenage girl from Guatemala who attended the same school.
Activated in January, that program—Operation Border Guardian—continues to affect the lives of hundreds of Central American migrants over the age of 18 who came to the United States as unaccompanied children after January 2014. Advocates believe many of those arrested under the operation are still in ICE custody.
Department of Homeland Security (DHS) Secretary Jeh Johnson has said that the goal of Operation Border Guardian is to send a message to those in Central America considering seeking asylum in the United States. But it’s not working, as Border Patrol statistics have shown. Furthermore, vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation. These youth arrived at the border in hopes of qualifying for asylum, but were unable to succeed in an immigration system that seems rigged against them.
“The laws are really complicated and [young people] don’t have the community support to navigate this really hostile, complex system. That infrastructure isn’t there and unless we support asylum seekers and other immigrants in this part of the country, we’ll continue to see asylum seekers and former unaccompanied minors receive their deportation orders,” said Julie Mao, the enforcement fellow at the National Immigration Project of the National Lawyers Guild.
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In January, ICE conducted a series of raids that spanned three southern states—Georgia, North Carolina, and Texas—targeting Central American asylum seekers. The raids occurred under the orders of Johnson, who has taken a hardline stance against the more than 100,000 families who have sought asylum in the United States. These families fled deadly gang violence in El Salvador, Honduras, and Guatemala in recent years. In El Salvador, in particular, over 400 children were murdered by gang members and police officers during the first three months of 2016, doubling the country’s homicide rate, which was already among the highest in the world.
ICE picked up some 121 people in the early January raids, primarily women and their young children. Advocates argue many of those arrested were detained unlawfully, because as people who experienced severe trauma and exhibited symptoms of post-traumatic stress disorder, generalized anxiety, and depression, they were disabled as defined under the Rehabilitation Act of 1973, and ICE did not provide reasonable accommodations to ensure disabled people were not denied meaningful access to benefits or services.
Just a few weeks later, on January 23, ICE expanded the raids’ focus to include teenagers under Operation Border Guardian, which advocates said represented a “new low.”
The media, too, has also criticized DHS for its seemingly senseless targeting of a population that normally would be considered refugees. The New York Times called Operation Border Guardian “a grossly misnamed immigration-enforcement surge that went after people this country did not need to guard against.”
In response to questions about its prioritization of former unaccompanied minors, an ICE spokesperson told Rewire in an emailed statement: “As the secretary has stated repeatedly, our borders are not open to illegal migration. If someone was apprehended at the border, has been ordered removed by an immigration court, has no pending appeal, and does not qualify for asylum or other relief from removal under our laws, he or she must be sent home. We must and we will enforce the law in accordance with our enforcement priorities.”
DHS reports that 336 undocumented Central American youth have been detained in the operation. It’s not clear how many of these youth have already been deported or remain in ICE custody, as the spokesperson did not respond to that question by press time.
Acosta, Cortez, Sorto-Hernandez, and three other North Carolina teenagers—Santos Geovany Padilla-Guzman, Bilmer Araeli Pujoy Juarez, Pedro Arturo Salmeron—have become known as the NC6 and the face of Operation Border Guardian, a designation they likely would have not signed up for.
Advocates estimate that thousands of deportations of low-priority migrants—those without a criminal history—occur each week. What newly arrived Central American asylum seekers like Acosta could not have known was that the federal government had been laying the groundwork for their deportations for years.
Asylum Seekers Become “High-Priority Cases”
In August 2011, the Obama administration announced it would begin reviewing immigration cases individually, allowing ICE to focus its resources on “high-priority cases.” The assumption was that those who pose a threat to public safety, for example, would constitute the administration’s highest priority, not asylum-seeking high school students.
But there was an indication from DHS that asylum-seeking students would eventually be targeted and considered high-priority. After Obama’s announcement, ICE released a statement outlining who would constitute its “highest priorities,” saying, “Specifically individuals who pose a threat to public safety such as criminal aliens and national security threats, as well as repeat immigration law violators and recent border entrants.”
In the years since, President Obama has repeatedly said “recent border crossers” are among the nation’s “highest priorities” for removal—on par with national security threats. Those targeted would be migrants with final orders of removal who, according to the administration, had received their day in court and had no more legal avenues left to seek protection. But, as the American Civil Liberties Union (ACLU) reported, “recent border entrant” is a murky topic, and it doesn’t appear as if allcases are being reviewed individually as President Obama said they would.
“Recent border entrant” can apply to someone who has been living in the United States for three years, and a border removal applies “whenever ICE deports an individual within three years of entry—regardless of whether the initial entry was authorized—or whenever an individual is apprehended by Customs and Border Protection (CBP),” explained Thomas Homan, the head of ICE’s removal operations in a 2013 hearing with Congress, the ACLU reported.
Chris Rickerd, policy counsel at the American Civil Liberties Union’s Washington Legislative Office, added that “[b]ecause CBP refuses to screen the individuals it apprehends for their ties to the U.S., and DHS overuses procedures that bypass deportation hearings before a judge, many ‘border removals’ are never fully assessed to determine whether they have a legal right to stay.”
Over the years, DHS has only ramped up the department’s efforts to deport newly arrived immigrants, mostly from Central America. As the Los Angeles Times reported, these deportations are “an attempt by U.S. immigration officials to send a message of deterrence to Central America and avoid a repeat of the 2014 crisis when tens of thousands of children from Honduras, El Salvador and Guatemala arrived at the U.S. border.”
This is something Mao takes great issue with.
“These raids that we keep seeing are being done in order to deter another wave of children from seeking asylum—and that is not a permissible reason,” Mao said. “You deport people based on legality, not as a way of scaring others. Our country, in this political moment, is terrorizing young asylum seekers as a way of deterring others from presenting themselves at the border, and it’s pretty egregious.”
There is a direct correlation between surges of violence in the Northern Triangle—El Salvador, Guatemala, and Honduras—and an uptick in the number of asylum seekers arriving in the United States. El Salvador, known as the murder capital of the word, recently saw an explosion of gang violence. Combine that with the possible re-emergence of so-called death squads and it’s clear why the number of Salvadoran family units apprehended on the southern border increased by 96 percent from 2015 to 2016, as Fusion reported.
Much like Mao, Elisa Benitez, co-founder of the immigrants rights’ organization Alerta Migratoria NC, believes undocumented youth are being targeted needlessly.
“They should be [considered] low-priority just because they’re kids, but immigration is classifying them at a very high level, meaning ICE is operating like this is a population that needs to be arrested ASAP,” Benitez said.
The Plight of Unaccompanied Children
Each member of the NC6 arrived in the United States as an unaccompanied child fleeing violence in their countries of origin. Acosta, for example, was threatened by gangs in his native Honduras and feared for his life. These young people should qualify as refugees based on those circumstances under international law. In the United States, after they present themselves at the border, they have to prove to an immigration judge they have a valid asylum claim—something advocates say is nearly impossible for a child to do with no understanding of the immigration system and, often, with no access to legal counsel—or they face deportation.
Unaccompanied children, if not immediately deported, have certain protections once in the United States. For example, they cannot be placed into expedited removal proceedings. According to the American Immigration Council, “they are placed into standard removal proceedings in immigration court. CBP must transfer custody of these children to Health and Human Services (HHS), Office of Refugee Resettlement (ORR), within 72 hours.”
While their court proceedings move forward, HHS’s Office of Refugee Resettlement manages the care of the children until they can ideally be released to their parents already based in the country. Sometimes, however, they are placed with distant relatives or U.S. sponsors. Because HHS has lowered its safety standards regarding placement, children have been subjected to sexual abuse, labor trafficking, and severe physical abuse and neglect, ThinkProgress has reported.
If while in the care of their family or a sponsor they miss a court date, detainment or deportation can be triggered once they turn 18 and no longer qualify for protections afforded to unaccompanied children.
This is what happened to Acosta, who was placed with his mother in Durham when he arrived in the United States. ICE contends that Acosta was not targeted unfairly; rather, his missed court appearance triggered his order for removal.
Acosta’s mother told local media that after attending his first court date, Acosta “skipped subsequent ones on the advice of an attorney who told him he didn’t stand a chance.”
“That’s not true, but it’s what they were told,” Benitez said. “So, this idea that all of these kids were given their day in court is false. One kid [we work with] was even told not to sign up for school because ‘there was no point,’ it would just get him deported.”
Benitez told Rewire the reasons why these young people are being targeted and given their final orders of removal need to be re-examined.
Sixty percent of youth from Central America do not ever have access to legal representation throughout the course of their case—from the time they arrive in the United States and are designated as unaccompanied children to the time they turn 18 and are classified as asylum seekers. According to the ACLU, 44 percent of the 23,000 unaccompanied children who were required to attend immigration court this year had no lawyer, and 86 percent of those children were deported.
Immigration attorneys and advocates say that having a lawyer is absolutely necessary if a migrant is to have any chance of winning an asylum claim.
Mao told Rewire that in the Southeast where Acosta and the other members of the NC6 are from, there is a pipeline of youth who arrived in the United States as unaccompanied children who are simply “giving up” on their valid asylum claims because navigating the immigration system is simply too hard.
“They feel the system is rigged, and it is rigged,” Mao said.
Mao has been providing “technical assistance” for Acosta and other members of the NC6. Her organization doesn’t represent individuals in court, she said, but the services it provides are necessary because immigration is such a unique area of law and there are very few attorneys who know how to represent individuals who are detained and who have been designated unaccompanied minors. Those services include providing support, referrals, and technical assistance to advocates, community organizations, and families on deportation defense and custody issues.
Fighting for Asylum From Detention
Once arrested by ICE, there is no telling if someone will linger in detention for months or swiftly be deported. What is known is that if a migrant is taken by ICE in North Carolina, somewhere along the way, they will be transferred to Lumpkin, Georgia’s Stewart Detention Center. As a local paper reported, Stewart is “the last stop before they send you back to whatever country you came from.”
Stewart is the largest detention center in the country, capable of holding 2,000 migrants at any time—it’s also been the subject of numerous investigations because of reports of abuse and inadequate medical care. The detention center is run by Corrections Corporation of America, the country’s largest private prison provider and one that has become synonymous with maintaining inhumane conditions inside of its detention centers. According to a report from the National Immigrant Justice Center, Stewart’s remote location—over two hours away from Atlanta—hinders the facility from attracting and retaining adequate medical staff, while also creating barriers to visitation from attorneys and family members.
There’s also the matter of Georgia being notoriously tough on asylum seekers, even being called the “worst” place to be an undocumented immigrant. The Huffington Postreported that “Atlanta immigration judges have been accused of bullying children, badgering domestic violence victims and setting standards for relief and asylum that lawyers say are next to impossible to meet.” Even more disconcerting, according to a project by Migrahack, which pairs immigration reporters and hackers together, having an attorney in Georgia had almost no effect on whether or not a person won their asylum case, with state courts denying up to 98 percent of asylum requests.
Acosta, Cortez, and Sorto-Hernandez spent over six months in Stewart Detention Center before they were released on bail—a “miracle” according to some accounts, given the fact that only about 5 percent of those detained in Stewart are released on bond.
In the weeks after ICE transferred Acosta to Stewart, there were multiple times Acosta was on the verge of deportation. ICE repeatedly denied Acosta was in danger, but advocates say they had little reason to believe the agency. Previous cases have made them wary of such claims.
Advocates believe that three of the North Carolina teens who were deported earlier this year before Acosta’s case made headlines were kept in detention for months with the goal of wearing them down so that they would sign their own deportation orders despite having valid asylum claims.
“They were tired. They couldn’t handle being in detention. They broke down and as much as they feared being returned to their home countries, they just couldn’t handle being there [in detention] anymore. They’d already been there for weeks,” Benitez said.
While ICE claims the average stay of a migrant in Stewart Detention Center is 30 days, the detention center is notorious for excessively long detainments. Acosta’s own bunkmate had been there over a year, according to Indy Week reporter David Hudnall.
As Hudnall reported, there is a massive backlog of immigration cases in the system—474,000 nationally and over 5,000 in North Carolina.
Mao told Rewire that the amount of time the remaining members of the NC6 will spend in detention varies because of different legal processes, but that it’s not unusual for young people with very strong asylum cases to sign their rights away because they can’t sustain the conditions inside detention.
Pedro Arturo Salmeron, another NC6 member, is still in detention. He was almost deported, but Mao told Rewire her organization was able to support a pro bono attorney in appealing to the Board of Immigration Appeals (BIA) to stop proceedings.
Japeth Matemu, an immigration attorney, recently toldIndy Week’s David Hudnall that “the BIA will tell you that it can’t modify the immigration judge’s ruling unless it’s an egregious or obvious miscarriage of justice. You basically have to prove the judge is off his rocker.”
It could take another four months in detention to appeal Salmeron’s case because ICE continues to refuse to release him, according to the legal fellow.
“That’s a low estimate. It could be another year in detention before there is any movement in his case. We as an organization feel that is egregious to detain someone while their case is pending,” Mao said. “We have to keep in mind that these are kids, and some of these kids can’t survive the conditions of adult prison.”
Detention centers operate as prisons do, with those detained being placed in handcuffs and shackles, being stripped of their personal belongings, with no ability to move around freely. One of Acosta’s teachers told Rewire he wasn’t even able to receive his homework in detention.
Many of those in detention centers have experienced trauma. Multiple studies confirm that “detention has a profoundly negative impact on young people’s mental and physical well-being” and in the particular case of asylum seekers, detention may exacerbate their trauma and symptoms of post-traumatic stress disorder.
“People are so traumatized by the raids, and then you add detention on top of that. Some of these kids cannot psychologically and physically deal with the conditions in detention, so they waive their rights,” Mao said.
In March, Salmeron and fellow NC6 member Yefri Sorto-Hernandez received stays of deportation, meaning they would not face immediate deportation. ICE says a stay is like a “legal pause.” During the pause, immigration officials decide if evidence in the case will be reconsidered for asylum. Sorto-Hernandez was released five months later.
Benitez said that previously when she organized around detention, a stay of deportation meant the person would get released from detention, but ICE’s decision to detain some of the NC6 indefinitely until their cases are heard illustrates how “weirdly severe” the agency is being toward this particular population. Mao fears this is a tactic being used by ICE to break down young people in detention.
“ICE knows it will take months, and frankly up to a year, for some of these motions to go through the court system, but the agency is still refusing to release individuals. I can’t help but think it’s with the intention that these kids will give up their claims while suffering in detention,” Mao said.
“I think we really have to question that, why keep these young people locked up when they can be with their communities, with their families, going to school? ICE can release these kids now, but for showmanship, ICE is refusing to let them go. Is this who we want to be, is this the message we want to send the world?” she asked.
In the seven months since the announcement of Operation Border Guardian, DHS has remained quiet about whether or not there will be more raids on young Central American asylum seekers. As a new school year approaches, advocates fear that even more students will be receiving their orders for removal, and unlike the NC6, they may not have a community to rally around them, putting them at risk of quietly being deported and not heard from again.
"For many people, Planned Parenthood is the only place they can turn to,” said Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away."
A federal judge on Thursday permanently blocked two provisions of a Florida omnibus anti-choice law that banned Planned Parenthood from receiving state funds and required annual inspections of all clinics that provide abortion services, reported the Associated Press.
“The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly,” Hinkle wrote in the 25-page ruling.
Thursday’s decision came after Republican Gov. Rick Scott’s administration decided not to pursue further legal action to defend the law, and filed a joint motion to end the litigation.
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The judge’s ruling nixed provisions in the law that banned state funding of abortion care and required yearly clinic inspections. Other provisions of the law that remain in effect include additional reporting requirements for abortion providers, redefining “third trimester,” and revising the care of fetal remains.
The GOP-backed anti-choice law has already had a damaging effect in Palm Beach County, where Planned Parenthood was forced to end a program that focused on teen dropout prevention.
Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida, said in a statement that the ruling was a “victory for thousands of Floridians” who rely on the organization for reproductive health care.
“For many people, Planned Parenthood is the only place they can turn to,” Zdravecky said. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away.”
A spokesperson for Scott told Reutersthat the administration is “reviewing” the decision.