A Lack of Restraints: Washington’s Anti-Shackling Efforts

Amie Newman

Currently, Washington State policy still allows shackling of pregnant women in some cases. But advocates are pursuing legislative efforts to ensure a complete prohibition on shackling of pregnant women.

Cassandra Brawley went into labor two and a half years ago
at the Washington State Corrections Center for Women on a Friday the 13th.
Though she was experiencing distress – her water broke and she was leaking
bloody discharge – and she repeatedly expressed to prison officials that
“something was wrong”, still her pleas went largely ignored. After three days
of labor pain and obvious suffering, Cassandra was shackled for transport to
the hospital where she would eventually undergo an emergency cesarean section.

“The belly chain was wrapped around me until they admitted
me into the hospital. And then they shackled my foot to the bed while I was
having labor contractions,” Brawley told me.

As a medium security prisoner, convicted of second-degree
theft, Brawley was not considered a threat to herself or others. She had never
been convicted of a violent crime and was an exemplary prisoner. Still, Brawley
was kept chained and shackled to the bed for hours during painful labor
contractions and while she was given an epidural.

According to a complaint filed
in court by the women’s rights advocacy organization Legal Voice against the
Washington State Department of Corrections, on Brawley’s behalf, “A physician
attempted to induce labor by breaking the amniotic sac, but found the sac
empty.” Brawley was immediately wheeled down to surgery to undergo an emergency
c-section – still in ankle chains. It was only at the command of the physician
performing the surgery that she was unshackled – and then only until the
surgery was complete.

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“They shackled my foot to the bed right after the c-section
was over. It was awful. And 18 hours after I gave birth to my son, you know how
you have to get up and walk around so you don’t get blood clots? The first time
I stood up and tried to walk, they shackled my feet together,” said Brawley.

In fact, Brawley was kept shackled to the bed throughout her
entire 3 days in the hospital.

Legal Voice claims that the Washington State Department of
Corrections (DOC) violated Ms. Brawley’s constitutional rights when they
shackled Brawley during labor, in opposition to its own policy and are bringing
her case to court.

Currently, the Washington state DOC policy allows shackling
of pregnant women in the third trimester only and not during labor and delivery
but Sara Ainsworth, the lawyer spearheading Brawley’s case, is also involved in
a legislative effort to ensure a complete prohibition on shackling of pregnant
women in Washington state.

“It defies common sense to risk a pregnant woman’s health,
safety and dignity by shackling her while she’s in the process of giving
birth,” says Ainsworth.

The Senate version of HB 2747 dropped on Monday, January 18th,
2010 and prohibits Washington state correctional facilities of any kind from
shackling pregnant incarcerated women or youth except in “extraordinary
circumstances, where a corrections officer makes an individualized
determination that restraints are necessary” to prevent escape or the woman
from injuring herself or others. In this scenario, however, the least
restrictive restraints must be used and if a medical professional or youth
requests that the restraints not be used, the corrections officer must
immediately remove them.  Shackles
may never be used on pregnant prisoners, as outlined in the bill, during labor,
delivery and the post-partum recovery period with no exceptions and pertains to
all institutions from juvenile detention centers and municipal jails to state
prisons.

“We’re lobbying for the broadest protection possible.
One reason that it is important to limit restraints throughout pregnancy
is to avoid the situation where a corrections official is deciding whether or
not someone is in labor and using their own judgment to decide whether or not
someone should be shackled,” Ainsworth told me.

If the legislation passes, Washington will become the
seventh state in the country to ban the use of restraints on pregnant and
laboring incarcerated women. Most recently, New York, New Mexico and Texas have
all passed laws prohibiting the use of shackles on pregnant women in nearly all
circumstances. Thanks in large part to the Rebecca Project the Federal Bureau
of Prisons has a policy against shackling pregnant women as well.

Malika Saada Saar, Executive Director of the Rebecca
Project, writes
on Rewire that, “The Bureau of Prisons (BOP) in September 2008 ended
shackling mothers as a matter of routine course in all federal correctional
facilities.”

State governments have found the practice to be cruel and
unusual punishment, inhumane, degrading and a violation of human rights
standards. And medical organizations from the American College of Obstetricians
and Gynecologists and the American Public Health Association to the American
College of Nurse Midwives (ACNM) have forcefully condemned the practice as
wholly unsafe for both mother and baby.

Tina Johnson, Certified Nurse-Midwife and the Director of Professional Practice
and Health Policy at ACNM told me, “Under no circumstances should a woman be
confined in a way that inhibits her ability to safely delivery her baby. Labor
and birth are active, physical processes that require the fetus to work with
the mother’s body in maneuvering through the birth canal. A woman should not
lie on her back during labor, as this can severely restrict blood flow to the
placenta. In addition, there are certain complications, such as hemorrhage…in
which the ability to reposition quickly is critical to facilitating a safe
outcome.”

Johnson is clear: “Shackling a woman during pregnancy is cruel,
inhumane and unsafe.”

Just ask Kimberly Mays.

“I felt like an animal giving birth in front of its human
masters,” Mays told me over the phone.

On August 2, 2000, Mays went into labor at the Washington
State Corrections Center for Women.

“Before being transported by ambulance, I was shackled –
both hands and feet. I was pretty scared, even though this was not my first
time giving birth to a child. I was shackled to the ambulance bed all the way
to St. Joseph’s Hospital [in Tacoma, WA], in excruciating pain…

When I got to the labor room, I thought some reprieve from
the shackles would occur. On the contrary, only the leg shackles were removed
so I could be examined and one wrist was shackled to the bed.”

Mays remained shackled during labor and delivery, screaming
in pain. According to Mays, the attending nurse “forcefully covered” her mouth
to get her to stop screaming.

“Instead of a mother who was about to give birth, I lost all
sense of dignity and self-respect,” she wrote in her birth story, sent to me
via email.

After giving birth, Mays remained shackled to the bed,
either by one arm or one leg – only unlocked to go to the bathroom or to
shower.

Simply, Kimberly writes, “That experience was the most
demoralizing event in my entire life.”

Mays, like Brawley, was incarcerated for a non-violent
offense and held as a minimum-security prisoner. Brawley told me, “I was a
model prisoner and had not one single infraction while in prison. I took every
self-help course. I was in college in prison and going to church three times a
week.”

Today Kimberly Mays is two-quarters shy of earning a Masters
in Public Administration at the Evergreen State College in Washington State.
She serves on several boards for organizations “that serve our most marginalized
citizens” and is a mother to ten children.

Mays recently testified at the hearing for the Senate bill
in the Washington state legislature and says that she hopes her story “will
help to alleviate the disgraceful practice of shackling women during labor,
which in turn will help alleviate the negative behaviors of prison guards and
hospital staff toward women who give birth while incarcerated.”

But hopefully both Mays and Brawley’s stories will do even
more than that. The power to change these policies lies not only in the obvious
pain and suffering of these two women but in what their stories can excavate
about why exactly this practice is
needed at all.

When asked if there has ever been a case recorded of an
incarcerated woman in labor ever attempting to escape or posing a threat to
herself or others in the United States, Sara Ainsworth told me, “We have heard
no stories of any incidents in our state – ever.”

The Seattle-based website Publicola reported on
the lack of any real opposition to the Washington state bill at the hearing
this month:

“Some law enforcement lobbyists, like Jo Arlow of the
Washington Association of Sheriffs & Police Chiefs raised concerns about
the language of the bill. She said there are rare circumstances where restraint
might be necessary for safety’s sake (though she couldn’t actually produce an
example of such a case when asked), but overall her group supports the bill.”

The Women in Prison Project in New York City calls shackling
“unnecessary” as women cannot run with any significant level of speed during
labor or after delivery and therefore are not a flight risk. An informational
document from the project states:

“New York City jail policies restricting restraints have
been in effect for 20 years without incidents of escape or harm to staff.”

One significant reason for this beyond a woman’s absolute
inability to do much more than push, groan and focus on the birthing process
during labor is that the majority of incarcerated women in the U.S. are in
prison for non-violent crimes.

According to the Women’s Prison Association’s Institute on
Women & Criminal Justice, two-thirds of women in prison are there for
non-violent offenses. Both drug-related crimes and property offenses make up
this 2/3 number. A report put out by the National Institute of Corrections in
2003, written by Barbara Owen & Stephanie Covington, notes that “the
majority of incarcerated women are in for first-time, non violent offenses.”

The number of women in prison is only increasing. Over the
last thirty years, the female prison population has grown more than 800% while
the number of men in prison has grown by only half that.

With 5 percent of incarcerated women in the U.S. pregnant, and the
number of women in prison increasing, it’s critical that as a country we make
some clear decisions about the ways in which we treat pregnant women and their
newborn babies. If our goals are to protect the health and safety of pregnant
women and their babies rather than endanger, and ensure the best possible
health outcome for mother and child regardless of whether a woman is
incarcerated at the time of her labor or not, then we are failing, overall, as
a nation.

Let’s review then:

Pregnant and laboring women are proven not to be safety or flight risks. Medical and health professionals
from obstetricians to nurse-midwives consider the practice of shackling
pregnant and laboring women harmful to womens’ and newborns’ health.  Keeping women in ankle, arm and belly
restraints while pregnant and/or laboring a federal court has now ruled
unconstitutional, while six states have banned the practice. Finally, women
themselves are speaking up and letting the world know that being shackled
during pregnancy and birth is nothing short of inhumane, robbing them of their
self-dignity and human rights.

A sea change is on the horizon in the ways in which we think
about this issue. It is likely that Washington State will pass a bill for the
Governor to sign. The Rebecca Project continues its campaign, on a national
level, against shackling with the work of its unlikely yet powerful collection
of anti-shackling allies.  Cassandra’s
trial is set for June of this year where a judge will hear her case against the
Washington State Department of Corrections. Through all of this, both Cassandra
and Kim continue their work as mothers like any and all of us, tending to the
children who came into this world unaware of the struggle and injustice that
surrounded them. But for these two women and so many others in this country,
their stories of giving birth in chains will never leave them.

“I am not a worthless piece of trash, but rather a valuable
asset to people, families, and the community at large, “ says Kimberly Mays.

 

Analysis Human Rights

From Protected Class to High-Priority Target: How the ‘System Is Rigged’ Against Unaccompanied Migrant Children

Tina Vasquez

Vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation.

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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“A Grossly Misnamed” Operation

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 teenagersSantos 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 all cases 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 Post reported 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 baila “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 told Indy 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.

Analysis Human Rights

El Salvador Bill Would Put Those Found Guilty of Abortion Behind Bars for 30 to 50 Years

Kathy Bougher

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would heighten the likelihood that those charged with abortion will spend decades behind bars.

Abortion has been illegal under all circumstances in El Salvador since 1997, with a penalty of two to eight years in prison. Now, the right-wing ARENA Party has introduced a bill that would increase that penalty to a prison sentence of 30 to 50 years—the same as aggravated homicide.

The bill also lengthens the prison time for physicians who perform abortions to 30 to 50 years and establishes jail terms—of one to three years and six months to two years, respectively—for persons who sell or publicize abortion-causing substances.

The bill’s major sponsor, Rep. Ricardo Andrés Velásquez Parker, explained in a television interview on July 11 that this was simply an administrative matter and “shouldn’t need any further discussion.”

Since the Salvadoran Constitution recognizes “the human being from the moment of conception,” he said, it “is necessary to align the Criminal Code with this principle, and substitute the current penalty for abortion, which is two to eight years in prison, with that of aggravated homicide.”

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The bill has yet to be discussed in the Salvadoran legislature; if it were to pass, it would still have to go to the president for his signature. It could also be referred to committee, and potentially left to die.

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would worsen the criminalization of women, continue to take away options, and heighten the likelihood that those charged with abortion will spend decades behind bars.

In recent years, local feminist groups have drawn attention to “Las 17 and More,” a group of Salvadoran women who have been incarcerated with prison terms of up to 40 years after obstetrical emergencies. In 2014, the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) submitted requests for pardons for 17 of the women. Each case wound its way through the legislature and other branches of government; in the end, only one woman received a pardon. Earlier this year, however, a May 2016 court decision overturned the conviction of another one of the women, Maria Teresa Rivera, vacating her 40-year sentence.

Velásquez Parker noted in his July 11 interview that he had not reviewed any of those cases. To do so was not “within his purview” and those cases have been “subjective and philosophical,” he claimed. “I am dealing with Salvadoran constitutional law.”

During a protest outside of the legislature last Thursday, Morena Herrera, president of the Agrupación, addressed Velásquez Parker directly, saying that his bill demonstrated an ignorance of the realities faced by women and girls in El Salvador and demanding its revocation.

“How is it possible that you do not know that last week the United Nations presented a report that shows that in our country a girl or an adolescent gives birth every 20 minutes? You should be obligated to know this. You get paid to know about this,” Herrera told him. Herrera was referring to the United Nations Population Fund and the Salvadoran Ministry of Health’s report, “Map of Pregnancies Among Girls and Adolescents in El Salvador 2015,” which also revealed that 30 percent of all births in the country were by girls ages 10 to 19.

“You say that you know nothing about women unjustly incarcerated, yet we presented to this legislature a group of requests for pardons. With what you earn, you as legislators were obligated to read and know about those,” Herrera continued, speaking about Las 17. “We are not going to discuss this proposal that you have. It is undiscussable. We demand that the ARENA party withdraw this proposed legislation.”

As part of its campaign of resistance to the proposed law, the Agrupación produced and distributed numerous videos with messages such as “They Don’t Represent Me,” which shows the names and faces of the 21 legislators who signed on to the ARENA proposal. Another video, subtitled in English, asks, “30 to 50 Years in Prison?

International groups have also joined in resisting the bill. In a pronouncement shared with legislators, the Agrupación, and the public, the Latin American and Caribbean Committee for the Defense of the Rights of Women (CLADEM) reminded the Salvadoran government of it international commitments and obligations:

[The] United Nations has recognized on repeated occasions that the total criminalization of abortion is a form of torture, that abortion is a human right when carried out with certain assumptions, and it also recommends completely decriminalizing abortion in our region.

The United Nations Committee on Economic, Social, and Cultural Rights reiterated to the Salvadoran government its concern about the persistence of the total prohibition on abortion … [and] expressly requested that it revise its legislation.

The Committee established in March 2016 that the criminalization of abortion and any obstacles to access to abortion are discriminatory and constitute violations of women’s right to health. Given that El Salvador has ratified [the International Covenant on Economic, Social and Cultural Rights], the country has an obligation to comply with its provisions.

Amnesty International, meanwhile, described the proposal as “scandalous.” Erika Guevara-Rosas, Amnesty International’s Americas director, emphasized in a statement on the organization’s website, “Parliamentarians in El Salvador are playing a very dangerous game with the lives of millions of women. Banning life-saving abortions in all circumstances is atrocious but seeking to raise jail terms for women who seek an abortion or those who provide support is simply despicable.”

“Instead of continuing to criminalize women, authorities in El Salvador must repeal the outdated anti-abortion law once and for all,” Guevara-Rosas continued.

In the United States, Rep. Norma J. Torres (D-CA) and Rep. Debbie Wasserman Schultz (D-FL) issued a press release on July 19 condemning the proposal in El Salvador. Rep. Torres wrote, “It is terrifying to consider that, if this law passed, a Salvadoran woman who has a miscarriage could go to prison for decades or a woman who is raped and decides to undergo an abortion could be jailed for longer than the man who raped her.”

ARENA’s bill follows a campaign from May orchestrated by the right-wing Fundación Sí a la Vida (Right to Life Foundation) of El Salvador, “El Derecho a la Vida No Se Debate,” or “The Right to Life Is Not Up for Debate,” featuring misleading photos of fetuses and promoting adoption as an alternative to abortion.

The Agrupacion countered with a series of ads and vignettes that have also been applied to the fight against the bill, “The Health and Life of Women Are Well Worth a Debate.”

bien vale un debate-la salud de las mujeres

Mariana Moisa, media coordinator for the Agrupación, told Rewire that the widespread reaction to Velásquez Parker’s proposal indicates some shift in public perception around reproductive rights in the country.

“The public image around abortion is changing. These kinds of ideas and proposals don’t go through the system as easily as they once did. It used to be that a person in power made a couple of phone calls and poof—it was taken care of. Now, people see that Velásquez Parker’s insistence that his proposal doesn’t need any debate is undemocratic. People know that women are in prison because of these laws, and the public is asking more questions,” Moisa said.

At this point, it’s not certain whether ARENA, in coalition with other parties, has the votes to pass the bill, but it is clearly within the realm of possibility. As Sara Garcia, coordinator of the Agrupación, told Rewire, “We know this misogynist proposal has generated serious anger and indignation, and we are working with other groups to pressure the legislature. More and more groups are participating with declarations, images, and videos and a clear call to withdraw the proposal. Stopping this proposed law is what is most important at this point. Then we also have to expose what happens in El Salvador with the criminalization of women.”

Even though there has been extensive exposure of what activists see as the grave problems with such a law, Garcia said, “The risk is still very real that it could pass.”

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