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As previously reported by US News media, Andry Hernandez Romero, a gay makeup artist who came to the United States last year in search of asylum, is one of 238 Venezuelan migrants flown from the U.S. to a maximum-security prison in El Salvador .

“Our client, who was in the middle of seeking asylum, just disappeared. One day he was there, and the next day we’re supposed to have court, and he wasn’t brought to court,” Lindsay Toczylowski, Hernandez Romero’s lawyer, said.

When the media reported that the gay makeup artist was deported, they got it wrong. Andry Hernandez Romero was refouled! He was not deported. Deportation occurs when you legally send a foreign national back to their own country through removal proceedings after receiving due process. A government cannot legally ship off a person who is claiming asylum – protection – to any other country, at said Government’s whim. It is contrary to U.S. law and international law. I contend further, that when an official orders that, KNOWLINGLY refouls into harm’s way, to include torture in contravention of the Convention Against torture (CAT),  that official and possibly all involved, are committing crimes against humanity.  This could invoke international repercussions. Allow me to explain:

Trump, who campaigned on eradicating the Venezuelan gang known as Tren de Aragua, brokered a deal with El Salvador’s president that allows the U.S. to send what he and the media terms deportees to the Terrorism Confinement Center, or CECOT. The Trump administration used the Alien Enemies Act, a law not invoked since World War II, to send many of the Venezuelans there, claiming they were all terrorists and violent gang members.

Andry Hernandez Romero is not a gang member. Andry Hernandez Romero has never been convicted of a crime. Andry Hernandez Romero was detained at the U.S. Southern border and is seeking asylum in the United States based on a claim of persecution as a gay man (membership to a social group)  in his home country, Venezuela. He may also have a political persecution claim. That is how I understand it. He had every right under our law to have his case adjudicated and it was pending. He entered our country seeking protection, and effectively the moment the US border officials placed him in US detention, he became 100% entitled to file his claim, and have it heard in our courts, and the USA became 100% obligated NOT TO REFOUL him.

What is refoulment: Refoulement in refugee law refers to the forcible return of refugees or asylum seekers to a country where they face serious threats to their life or freedom, such as persecution, torture, or other serious human rights violations.

The principle of non-refoulement is a cornerstone of international refugee and human rights law. It is codified in:

• Article 33(1) of the 1951 Refugee Convention, which states:

“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened…”

This principle prohibits countries from sending individuals back to places where they may be at risk, even if they are not formally recognized as refugees yet.

• Non-derogable(*): It is generally considered a fundamental and non-derogable human right under international law.
• Applies to both refugees and asylum seekers: Even those whose status has not yet been determined.
• Exceptions are very limited: Under Article 33(2), exceptions exist for individuals who pose a serious danger to the host country’s security or have committed serious crimes, but even then, international human rights law may still prohibit return.

(* In human rights law, “derogable” refers to a right that can be suspended or limited under specific circumstances, such as a state of emergency. Conversely, “non-derogable” rights are absolute and cannot be suspended even in such circumstances.)

The United States is not a signatory to the 1951 Refugee Convention. However, the U.S. is a signatory to the 1967 Protocol Relating to the Status of Refugees, which:

• Incorporates the 1951 Convention by reference,
• Removes the original time and geographic limits of the 1951 Convention (which initially applied only to events in Europe before 1951),
• And binds the U.S. to the core obligations of the Convention, including the non-refoulement principle.

So while the U.S. didn’t sign the 1951 Convention directly, by acceding to the 1967 Protocol, it is legally bound by all substantive provisions of the Convention.

After speaking with Andry’s legal team this week, it is clear that they are doing everything possible, to try and get him freed from the awful CECOT prison and returned to the United States, to restore him to his prior position so his asylum case can be adjudicated. Their lawsuit on his behalf will likely result in a ruling that he be returned to the United States. Andry’s case is a standalone, and he is also part of the greater ACLU legislation with other Plaintiffs.

However  with my understanding of the international landscape, a myriad of complications could actually serve to prevent Trump from an ability to fix what is either a disgraceful screw-up on the part of poor leadership, or an horrific abuse of law intended to harm, with great risk to human life.

In my opinion there is also an obligation on the global human rights community to explore and call for an international response to Andry’s refoulment.

Andry is essentially now an asylum seeker/refugee in El Salvador. He was not “deported” to El Salvador under any legal process – he was refouled – into an environment that may not serve him and may harm him. Effectively he was detained by El Salvador the minute he arrived on their soil. He was not under any legitimate jurisdiction or authority of the USA to make deals on behalf of his ‘persons.’

Now this is a very simplistic reflection on a very complex issue and nothing I say here can fully do its complexity, justice – for want of better expression.

Perhaps a durable solution could involve UNHCR, UN High Commission for Refugees,  to work with the El Salvadorian government to respond to a claim by Andry for refugee protection. Andry will have to assert that he requires refugee protection as a refugee from Venezuela, in El Salvador. In effect this means Andry in effect, is asserting his right which includes possibly not being returned to the USA, unless that becomes his country of resettlement. USA accepting hi for resettlement during a Trump admin under these conditions is highly unlikely.  However if that occurred he would not need to go through an asylum process in the USA.  When asserting his right as a refugee in El Salvador, effectively he is requesting resettlement to any appropriate country, which means one that accepts him fully to include his SOGIESC. Once released from CEDOT and in UNHCR protection the mandating and vetting process can start and his profile can be presented to countries like Canada, Germany, Australia, etc.

NOTE: El Salvador is not a signatory to the 1951 Refugee Convention.However, El Salvador is a signatory to the 1967 Protocol Relating to the Status of Refugees, which means it has accepted the obligations of the 1951 Convention, without the original geographic or time limitations. It is therefore bound by the same core principles, including the non-refoulement obligation.

The President of El Salvador should release Andry from CECOT and place him in a safer holding center where UNHCR can access him to access him to claim his refugee status and ultimately provide for his protection and resettlement abroad.

This would be the ultimate best solution for Andry, in my opinion. Given the current attack on immigrants in the USA, who would want to come to America for protection. Who would trust the American government?  How can anyone, who has been subjected to what Andy has endured trust their protection or future citizenry to the USA.

This Trump Vance Noem Rubio regime is chaotic and complicit in egregious human rights abuses that may well equate to crimes against humanity.

Trump and his crew just knowingly sent a person who their administration  was duty bound to protect under American and international law, into harms way. He sent Andry to a country known for its torture of detainees and under the fraudulent use of the Alien Enemies Act.  A person fleeing their home country because they are persecuted for being gay is not an ‘”Alien enemy,” but a bona fidei lawful asylum seeker.

The U.S. State Department annual Human Rights Report, for 2018 and 2019, during the Trump presidency – proof of his knowledge that his government was deliberately sending a gay man to be tortured, reads as follows: To emphasize – THIS is what the Trump Government wrote about El Salvador in 2018 + 2019:

• Human rights issues included allegations of unlawful killings of suspected gang members and others by security forces; forced disappearances by military personnel; torture by security forces; harsh and life-threatening prison conditions; arbitrary arrest and detention; lack of government respect for judicial independence; widespread government corruption; violence against women and girls that was infrequently addressed by the authorities, as well as security force violence against lesbian, gay, bisexual, transgender, and intersex individuals; and children engaged in the worst forms of child labor.
• Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment: The law prohibits such practices, but there were reports of violations. As of July 31, the PDDH received 18 complaints of torture or cruel or inhuman treatment by the National Civil Police (PNC), the armed forces, and other public officials.
• PRISON AND DETENTION CENTER CONDITIONS Prison and detention center conditions remained harsh and life threatening due to gross overcrowding, unhygienic conditions, and gang activities. Physical Conditions: Overcrowding remained a serious threat to prisoners’ health and welfare. As of June 30, the PDDH reported that think tank Salvadoran Foundation for Economic and Social Development reported 38,849 inmates were being held in facilities designed for 18,051 inmates.…..Gangs remained prevalent in prisons. As of September 2017, detention centers held 17,614 current or former gang members, or 46 percent of the prison population. So-called extraordinary measures were designed to interrupt gang communications and coordination between imprisoned leaders and gang members outside the prisons.…In many facilities provisions for sanitation, potable water, ventilation, temperature control, medical care, and lighting were inadequate, according to the PDDH. From August 2017 to May, the General Prison Directorate reported 2,440 cases of inmate malnutrition and the PDDH reported more than 500 cases of severe malnutrition in Izalco and Ciudad Barrios prisons. The PDDH noted that in 2017 a total of 64 inmates died, some of them due to unspecified causes. In October the PNC reported overcrowding in police holding cells, with 5,500 detainees in cells designed for 1,500 persons. Those in pretrial detention were held alongside sick inmates.

  Administration: The PDDH has authority to investigate credible allegations of inhuman conditions. The Constitutional Chamber of the Supreme Court has authority over the protection of constitutional rights. The extraordinary measures granted broad authorities to wardens to order disciplinary actions, to include isolation and withholding family or religious visitations, without judicial oversight. Extraordinary measures ended in August when the Legislative Assembly reformed the penitentiary code.

  Independent Monitoring: The government permitted visits by independent human rights observers, nongovernmental organizations (NGOs), and media to low- and medium-security prisons. Inspections of high-security prisons were limited to government officials, the PDDH, and the International Committee of the Red Cross (ICRC). Early in the year, the government reinstated the ICRC’s access to all prisons.

• NGOs reported that public officials, including police, engaged in violence and discrimination against sexual minorities. Persons from the lesbian, gay, bisexual, transgender, and intersex (LGBTI) community stated that the PNC, and the Attorney General’s Office harassed transgender and gay individuals when they reported cases of violence against LGBTI persons, including by conducting strip searches.

The latest report, which is for 2023, is very similar to the trump era reports. Anyone in the Oval Office, State department or in charge of Homeland Security, should be fully apprised, whether their admin crafted the report or not, reads as follows:

• Significant human rights issues included credible reports of: unlawful or arbitrary killings; enforced disappearance; torture or cruel, inhuman, or degrading treatment or punishment by security forces; harsh and life-threatening prison conditions; arbitrary arrest or detention; serious problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; extensive gender-based violence, including domestic and sexual violence, and femicide; substantial barriers to sexual and reproductive health services access; trafficking in persons, including forced labor; and crimes involving violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons.
• Prison and Detention Center Conditions Prison conditions before the state of exception were harsh and life threatening due to gross overcrowding; inadequate sanitary conditions; insufficient food and water shortages; a lack of medical services in prison facilities; and physical attacks. The addition of 72,000 detainees under the state of exception exacerbated the problem. Human rights organizations reported that as of August 22, more than 70 detainees died in prisons from violence, insufficient medical care, and chronic health conditions.
• Abusive Physical Conditions: Prisons were severely overcrowded, as the number of detainees increased and only a limited number were released. As of July, the government reported that 71,776 persons were detained under the state of exception. In 2021, the prison system had a capacity of 30,000 and was already overcrowded. The government inaugurated a new prison with a reported capacity for 40,000 on January 31, but as of September, only 12,000 detainees had been moved into it. A prisoner released from the Izalco prison reported that 100 prisoners were held in a cell built for 50.
• Detainees released from the Izalco and La Esperanza prisons reported a lack of food and potable water and being limited to two tortillas, one spoonful of beans, and one glass of water per day. They also reported limited water for sanitation. Human rights organizations noted released prisoners reported severe heat and lack of ventilation in the cells and prolonged confinement, without the opportunity for movement or the use of sanitary facilities.–
• Released prisoners and their families reported a lack of access to medical care or medicine in prison. One released prisoner reported to El País that his diabetic cellmate received insulin only two or three times during his period of incarceration and died suddenly in his sleep. Although families of prisoners were often instructed to bring medicine to the prison for the prisoner, the medicine often did not reach the prisoner. Human rights organizations reported communicable diseases such as tuberculosis and scabies were widespread in the prisons.
• Human rights groups and news outlets reported unsanitary conditions and limited food and medical care in women’s prisons. There were reports of life-threatening lack of medical care or sanitation for detained pregnant women and young children held with their mothers.

In conclusion – let this leave you with the following in sum thoughts:

• UNHCR and the Global Community should jump in now based on what has been discussed in simple terms, above. it won’t be easy. It never is
• International Governments should be stepping to the fore and pursuing this hand in hand with UNHCR. America is no longer a country with human rights a driving force
• Depending on how this crisis develops, the ultimate impacts and outcomes, Trump and his cohorts should be indicted in criminal international tribunals for being complicit in torture
• The U.S. Attorneys should continue on their path to restore Andry to his rights.

EVENT WITH SAN FRANCISCO PRIDE at Commonwealth Club: On May 20, the day before Andry’s birthday, a broad coalition of immigrant defender groups, the attorneys for Andry Hernandez Romero, and some elected officials are convening to discuss the current state of the immigration crisis and those impacted.  The program begins at 5.30 pm at The Commonwealth Club World Affairs of CA. The program is organized by the Board of San Francisco Pride and partners.

Please consider spreading the word about all those who sought asylum and have been detained unlawfully and refouled unlawfully. We know there are many more caught in this cruel quagmire.  This cannot continue and we cannot be silent.

Stay tuned for more….

By Melanie Nathan