Rights of immigrants and migrants to the united states: a critical look at the u. S. And its compliance under the convention

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A Response to the 2007 Periodic Report of the

United States of America.

  1. Introduction: Global Perspectives on Immigration

        1. Immigrants and migrants in the United States are frequently denied their right to be free from discrimination their daily living and are often discriminatorily denied their fundamental civil and political rights, as well as their economic, social and cultural rights. The United States, through both its direct and indirect action, has failed in its obligations under the Convention to guarantee the rights of immigrants to be free from discrimination on the basis of race, ethnicity, national origin and ancestry, and to recognize and address the multiplicities of discrimination immigrants face and the intersection of gender, race, national origin and citizenship discrimination.

        2. In its Periodic Report, the U.S. rightly identifies three areas of concern with regard to implementation of the Convention vis-à-vis immigrant communities: “subtle, and in some cases overt, forms of discrimination against minority individuals and groups continue to plague American society, reflecting attitudes that persist from a legacy of segregation, ignorant stereotyping, and disparities in opportunity and achievement;”1 increased hate crimes and other acts of discrimination against persons of or perceived to be of Muslim, or of Arab, Middle Eastern, or South Asian descent in the aftermath of 9/11; and an increase in acts of discrimination and hate crimes against other immigrant communities attributed to the changing demographics in the United States.2 The United States acknowledges “lack of resources for enforcement, and other factors” as among the reasons for the persistence of discrimination against immigrant communities,3 but does not acknowledge the more direct role of the State in influencing the very immigration trends it identifies as an underlying cause of discrimination, and in both sanctioning and perpetuating the multiplicities of discrimination experienced by immigrant communities.

        3. This report highlights those areas in which the U.S. fails in its obligations to guarantee immigrants their right to be free from discrimination through both direct and indirect action. In seeking to redress the discrimination against immigrants, the United States must work towards eliminating the multiplicities of discrimination experienced by immigrants at the intersection of gender, race and national origin discrimination in addressing discrimination against both the immigrant and migrant populations.

II. Citizenship and its Intersection with Prohibited Discrimination under Article I of the Convention and General Recommendation 30

        1. As this Committee has made clear through General Recommendation 11 and in further detail in General Recommendation 30 on the rights of non-citizens, Article 1, ¶ 2 must not detract from the rights and freedoms recognized and enunciated in other human rights instruments and “must be construed so as to avoid undermining the basic prohibition of discrimination.”4 The Committee further articulated: “Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.”

        2. States Parties are also “under an obligation to report fully upon legislation on non-citizens and its implementation. Furthermore, States parties should include in their periodic reports, in an appropriate form, socio-economic data on the non-citizen population within their jurisdiction, including data disaggregated by gender and national or ethnic origin.” Unfortunately, while the U.S. has provided limited data with regard to the percentage of naturalized citizens among the foreign born and regional breakdowns for immigration, the only socio-economic data provided with regard to immigrants is for the Arab-American population. And, the data and information provided fails to address the intersection of citizenship and gender discrimination, and further fails to address the multiplicities of discrimination faced by immigrant communities, discrimination due at least in part to government sponsored law and enforcement policies.

III. Multiplicities of Discrimination Experienced by Immigrant Communities: Two Case Studies

  1. U.S. Treatment of Haitian Immigrants5

        1. The United States has a long history of targeting Haitian migrants in its immigration policy and practice, in a wide range of issues including detention and removal procedures, legislation concerning status adjustment and naturalization for various groups of immigrants, and the disparate application of temporary protections for refugees. The racial discrimination against Haitian refugees occurs through implementation of policies specifically targeting Haitians, neutral policies that leave too much discretion to immigration officials and allow the possibility of racially-based decisions, and preferential treatment for other nationality groups.

        2. The United States has failed to fulfill its obligations under CERD to identify racially discriminatory practices and amend or nullify laws which have a racially discriminatory impact. Rather, it has increased its targeting of Haitians with stricter immigration policies in recent years, often under the asserted justification of homeland security concerns.

        3. Currently, Haitian migrants who are interdicted in open water when trying to come to the U.S. and who “indicate” a fear of return are given a shipboard pre-screening interview, but the policy followed by the Coast Guard is to refrain from advising Haitians migrants of the right to request asylum. Even under the current policy very few Haitians are given pre-screening interviews, as few meet what has become known as the “shout test”—only those migrants who wave their hands, jump up and down, and shout loudly are deemed to have “indicated” their fear of return.6

        4. In contrast, when Cuban or Chinese migrants are interdicted, U.S. authorities take affirmative steps of identifying possible asylum seekers among the migrants, by making an announcement in Spanish and by distributing a questionnaire in Chinese. This procedures stands out against the situation of Haitian migrants, who are not offered any information and do not always have access to an interpreter.7 (Although interdiction at sea now applies to Cubans as well as other migrant groups, Cubans who reach land are generally paroled into the United States8 and receive other procedural benefits. Even in the interdiction process, there is clearly disparate treatment between migrant groups, as Haitians are offered no information or interpretation services, while Cubans and Chinese migrants are made aware of the possibility of applying for asylum.)

        5. On December 3, 2001, the Coast Guard rescued approximately 167 Haitian migrants from an overcrowded sailboat off of the south coast of Florida. None of the migrants had any travel documents with them, and thus were placed into expedited removal proceedings. However, all of the migrants were given “credible fear” interviews, and 165 of them passed the interview and were thus given notices to appear for full non-expedited removal proceedings, which would include the opportunity to apply for asylum.

        6. While there was a general presumption of paroling migrants in non-expedited removal proceedings, the INS changed its policies with respect to this group of Haitian migrants.9 INS Acting Deputy Commissioner Michael Becraft instructed the Miami district office that no undocumented Haitian should be released without the approval of INS Headquarters.10

        7. In addition to discrimination in individual processing, Haitians have been discriminatorily denied as a group the protection of Temporary Protected Status (“TPS”), a legal status granted to foreign nationals from certain countries who face serious danger from natural disaster, draught, epidemic, or civil unrest if deported to their home countries.11 The President of the U.S. determines which country’s nationals should be granted TPS on a yearly basis.12 TPS is appropriate if “there exist extraordinary and temporary conditions in the foreign state”13 (such as an earthquake, flood, draught, epidemic, or other environmental disaster or civil unrest) and “the foreign state is unable temporarily to handle the return of its nationals and the foreign state has affirmatively requested [TPS] designation.”14 Granting TPS must also not be “contrary to the national interest of the US.”15 TPS does not afford protection to people fleeing their country; it only covers persons already in the United States as of the initial grant date.

        8. Despite the conditions in Haiti, Haitians have not been granted TPS, although other nationalities, including Pakistanis, Lebanese, and Southeast Asians national following the Tsunami, have often been granted TPS.16 In 2007, although TPS was renewed for Hondurans, Nicaraguans, and Salvadorans due to incomplete Hurricane recovery, Haiti’s similar situation due to natural disasters was not addressed and Haitians once again were passed over for temporary protected status.17

  1. Treatment of Immigrant Communities following Hurricane Katrina

        1. The multidimensional nature of discrimination toward immigrants was once again illustrated in the months and years following the August-September 2005 Katrina hurricane catastrophe in the Gulf region of the country. The devastating impact of the hurricane itself, the failed New Orleans, Louisiana levee system, and inadequate emergency preparedness and response on people living in Louisiana, Mississippi, and Alabama is well known and documented elsewhere in this report.18 The racial dimensions of the continuing Katrina crisis and the incompetence or blatant prejudice evidenced in some aspects of the official federal, state, and local responses are also well-documented.19 Unfortunately, relatively little attention was paid to the impact of the storm and its aftermath on immigrant communities.

        2. The United States periodic report fails to fully address the many-layered discriminatory intent and impact of public and private actions before, during, and after the hurricanes on non-citizen individuals and on immigrant communities.

i. Vietnamese-American Neighborhood in New Orleans

        1. For example, although the population of the city of New Orleans, Louisiana was two-thirds African-American, there were also significant and long-standing immigrant communities. New Orleans East, for example, is said to have one of the highest concentrations of Vietnamese-Americans in the United States (originating from the 1975 close of the war in Vietnam).20 The neighborhood, less than one mile from the Chef Menteur waste dumping site, risked severe environmental and damaging health impacts from the massive dumping of hazardous waste material from the flood.

        2. Despite some Asian-American immigrants having lost their lives, homes, and businesses as a result of the hurricane, they were often either invisible in media coverage of the disaster, or treated as “outsiders”. The resilience of the Vietnamese-American community ties, however, was demonstrated in their subsequent efforts to rebuild their neighborhoods and to close the landfill.21 They also worked in coalition with African-American and Latino grassroots groups advocating for authentic participation in overall rebuilding efforts.

ii. Latino Immigrant Workers

        1. While the workplace discrimination experienced by immigrants is discussed in greater detail in the Chapter on Labor, the experiences of Latino and other immigrant workers brought into help in the reconstruction of the Gulf Coast following Katrina is illustrative of the intersectionalities of discrimination either directly undertaken or tolerated by the U.S.

        2. Katrina left thousands of homes and businesses under water or significantly damaged. Roads, schools, hospitals, and hotels had to be replaced or substantially repaired. Oil and gas, fishing, tourism, and manufacturing industries needed workers to help in the rebuilding process and to reclaim lost business. In the aftermath of the disaster, critics charged that federal, state, and local rebuilding contracts were awarded without sufficient attention to labor rights protections, including non-discrimination rights. Further, the ad hoc and poorly coordinated nature of the official post-disaster reconstruction efforts left the door open for unscrupulous private employers and subcontractors to exploit or defraud low-wage migrant workers.22

        3. Observers note that in the weeks and months following the disaster for example, some labor contractors recruited undocumented workers from Central and South America for construction or tourism-related work, in some cases charging workers exorbitant fees to come to the U.S. for work. Immigrants and labor rights organizations have documented a range of associated violations: racial or ethnic discrimination in employment and housing, non-payment or underpayment of contracted wages, hazardous working conditions, and the failure to provide adequate housing or health care for ill or injured workers.23

        4. Far from home, sometimes greeted with hostility or prejudice by a few members of local communities who saw the new workers as usurpers or unwelcome strangers, immigrant workers found it difficult to organize or advocate effectively for their human rights. Those working in flood-damaged areas often waded through “water” best described as a “toxic soup” full of oil and chemical waste, sewer water, and human and animal remains. Many cleaned out mold or stripped paint without protective masks or clothing. Ad hoc outdoor camps were set up in which workers slept outdoors in tents, with little alternative given the massive housing shortage in the region after the floods.24

        5. Underlying racial, linguistic, or cultural tensions between native-born and immigrant communities of color were deepened by the labor and employment practices. Shortly after the hurricane, the Bush administration relaxed basic labor laws for federal contracts under the 1931 Davis-Bacon Act, initially relaxing wage protections before public outcry forced a reversal.25

        6. Some construction and tourism employers deliberately sought out what they hoped would be guestworkers willing to accept lower wages from outside the country while ignoring potential workers among the many internally displaced survivors of the hurricane. In May of 2007, immigrant workers brought in on H-2B visas won legal recognition of use of race and national origin as a tool to exploit workers. In Castellanos-Contreras v. Decatur Hotels, LLC, litigation by Latino guest workers revealed a scheme to exploit Latino labor and to avoid employing available African-American workers, many of whom were survivors of the hurricane.26

        7. Coalitions among African-American, Latino, and Asian-American groups have been working together to advocate all workers their rights to participate in community life, to fair and equitable access to jobs, and to housing, a living wage, safe working conditions, and health care ‘without distinction as to race.”27 They have worked together with local, regional and national civil and human rights organizations to combat efforts perpetuated by U.S. policy to “divide and conquer” by deepening ethnic and racial tensions among immigrants and native born communities in the Gulf region.

C. Gender, Immigration and CERD

        1. In accordance with General Recommendation XXV, adopted in 2000, ICERD periodic reports must incorporate a gender perspective. Although the April 2007 U.S. Report includes some data about the gendered aspects of racial discrimination, it does not enumerate the specific civil, economic, social and health challenges facing immigrant women in the United States.

i. Access to Health Care, Gender and Discrimination

        1. Article 5(e)(iv) guarantees all persons, “without distinction as to race, colour, or national or ethnic origin,” the right to “public health, medical care, social security and social services.”28 Yet immigrant women in the U.S. experience poorer health outcomes and are four times more likely than their non-immigrant counterparts to be uninsured.29

        2. Immigrant women also face an increasing number of barriers to accessing health care. In 1996, federal welfare and immigration reform legislation tied eligibility for social services to an immigrant’s length of residency.30 Since then, immigrants entering after the enactment date must wait at least five years until they can become eligible for Medicaid and the State Children’s Health Insurance Program (SCHIP), the country’s major public health coverage programs. Once eligible, SCHIP provides health coverage for many immigrant children and pregnant women, and gives states the option to use SCHIP funds to cover prenatal services for undocumented immigrant women.31

        3. In recent years, immigrant women have been confronted with even more barriers to eligibility. The Deficit Reduction Act of 2005 imposed new citizenship documentation requirements for beneficiaries to maintain Medicaid coverage.32 Initially, the new citizenship documentation requirement also made it difficult for immigrant women to access Medicaid services for their newborns. Contrary to longstanding federal law which authorizes automatic Medicaid coverage for all U.S.-born infants, the Centers for Medicare & Medicaid Services (CMS) issued an interim regulation that excluded immigrant women who received only emergency Medicaid from accessing Medicaid services for their babies until they could verify the citizenship status of their U.S.-born child.33 Constitutional challenges to the regulation were raised, and CMS eventually reversed its position and reinstated eligibility for infants regardless of maternal citizenship status.34 Nevertheless, the accumulation of anti-immigrant health policy changes have created a chilling effect that has discouraged eligible immigrant women from accessing Medicaid and SCHIP.

        4. Moreover, over 3 million undocumented women and children in the U.S. continue to be ineligible for health care, while millions more must wait years to become eligible. These factors have left low-income immigrant women, particularly pregnant immigrant women, with few options.

ii. Immigration, Domestic Violence and Discrimination

        1. Violence against women, including domestic violence, is a violation of women’s human rights that “States are obliged to apply due diligence to prevent.”35 This Committee has recognized the “specific vulnerability of foreign women victims of domestic violence,”36 related to the multiple discrimination faced by women (Gen. Rec. XXV) and non-citizens (Gen. Rec. XXX) of color. States parties are obligated to provide accessible services to battered immigrant women under Article 5(b), guaranteeing “security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution.” With respect to this and other Article 5 rights, “States parties are under an obligation to guarantee equality between citizens and non-citizens” and may not differentiate with respect to citizenship except when proportional to a legitimate aim.37

        2. An estimated 1.3 million women are physically assaulted by an intimate partner in the United States every year.38 Latina, South Asian, and Korean immigrant women are estimated to experience domestic violence at a rate of 30% to 50%,39 compared with 22.1% of all women nationally in their lifetime.40 A New York City study found immigrant women to be victims of intimate partner homicide at 1.69 times the rate of US-born women.41

        3. Immigrant women experience particular vulnerability to abuse. They may be dependent on their abusers financially or because of limited English proficiency.42 Additionally, an abuser can exploit a woman’s immigration status as a means of control, especially if she has conditional status based on marriage to a citizen or lawful permanent resident (LPR).43 Divorcing an abusive citizen or LPR may lead to the victim’s immigration status being raised in custody proceedings.44

        4. Battered immigrant women face unique obstacles in accessing services and legal remedies, including: (1) language and cultural barriers, (2) ineligibility for public benefits, and (3) fear of deportation. The federal government’s response to these barriers has discriminated against undocumented and unmarried women and those whose abusers are not citizens or LPRs. The 2005 reauthorization of the Violence Against Women Act removed such discrimination in access to legal services, but not in the availability of legal residency status.45 Additionally, the federal government has restricted federally funded services for all undocumented immigrants, shifting the burden of providing such services to state and local governments.

        5. Consistent with national data, Minnesota Advocates identified five major obstacles that prevent an effective government response to violence against immigrant women in the Minneapolis/St. Paul metropolitan area. They are: 1) language barriers, 2) fear of deportation and legal systems; 3) obstacles in the law and the implementation of the law; 4) cultural barriers and community pressures; and 5) funding issues. These obstacles are trapping many women and their children in violent relationships and preventing or deterring them from effectively accessing systems and services designed to ensure their safety and security. In addition, these obstacles work to diminish the effectiveness of government agencies in providing services to immigrant women. Addressing these obstacles, as discussed in greater detail below, will both improve the government s response to domestic violence against immigrant women and make it likely that more battered immigrant women will access the resources and legal remedies available to them.46

Language and Cultural Barriers

        1. Inadequate interpretation services inhibit every phase of the process a victim of domestic violence must undertake to protect herself against her abuser—from speaking with the police to obtaining a civil Order of Protection to interacting with prosecutors, advocates and courts.47 One advocate described the effect of language and cultural barriers on police interaction: “Women get arrested instead of the abuser because of language issues and body language. African women who seek help often seem more agitated than the man; that is how they communicate crisis. The abusers often know more English and relay things quietly to the police.”48

Ineligibility for Public Benefits

        1. The Welfare Act of 1996 limited eligibility for Medicaid, welfare, and other public benefits to immigrants in the U.S. for five years or more. Federally funded medical care is only available to undocumented battered immigrant women in emergency rooms, where the rate of domestic violence detection is low.49 Battered immigrant women may get benefits through Family Violence Option waivers50 or through VAWA if they were married to a citizen or LPR.51 However, ineffective eligibility screenings mar both of these options.52

        2. Federal eligibility restrictions also limit access to shelters for undocumented battered women. Some shelters choose to house women for whom there is a guarantee of reimbursement and deny those whose eligibility is questionable.53 States, counties and municipalities have also set up eligibility requirements that preclude undocumented immigrants from accessing temporary or transitional shelter, exacerbating the trauma and stress of having left an abusive relationship, and leading victims to return to the abuser for economic reasons.

Fear of Deportation

        1. Fear of deportation was identified as the primary reason that 64% of undocumented battered women in a San Francisco study did not seek social services.54 Their fear is not unfounded: post-9/11, the Department of Homeland Security has pushed states, cities, and localities to deputize local police to enforce federal immigration laws.55 Battered women’s advocates have predicted a chilling effect on domestic violence reporting; in addition to fearing inquiry into her own status, “one spouse may want the other punished, but not deported.” 56 At least 82 localities nationwide have taken the opposite approach, limiting the enforcement of immigration laws by state and local authorities.57 These localities face threats of sanctions from federal lawmakers, a measure endorsed by at least two of the 2008 Presidential candidates.58

Discrimination in Granting Legal Residency Status

A woman abused by a citizen or LPR spouse has more rights than an unmarried woman or one abused by someone in any other immigration status (e.g. a student visa or undocumented). An abused spouse of a citizen or LPR can self-petition for lawful status under VAWA or obtain a Battered Spouse Waiver. The only option available to other victims is a U Visa, which requires cooperation with the investigation and prosecution of the abuser.59 In communities of color targeted by police for racial profiling and abuse, women may not want to send a member of their community to jail. Additionally, victims sometimes have final orders of removal entered against them because the abuser prevented them from departing the country voluntarily earlier in their removal proceedings. While spouses of citizens and LPRs are able to have their removal cases reopened more easily and fix their status through one of the remedies described above, all other victims must depend upon the discretion of Immigration and Customs Enforcement.

iii. Increased Vulnerability of Pregnant Immigrant Women

        1. Under Article 5(b), “the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution.”60 The U.S. government has failed to meet this obligation in its treatment of pregnant immigrant women, particularly those of undocumented status. Demographically, the population of Latinos and Asian Americans is increasing in the U.S. while birth rates for non-Hispanic white Americans are decreasing.61 These trends in population growth have been accompanied by growing nativist fears of an immigrant population explosion.

        2. As such, pregnant immigrant women have been targets for deportation and scrutiny by government agencies and elected officials. For example, a Chinese immigrant woman miscarried her twins after she appeared for a routine interview with Immigration and Customs Enforcement (ICE) officials, and unexpectedly became subject to a violent deportation attempt. 62 Another pregnant immigrant woman from Cameroon miscarried while she was under ICE custody after her requests for medical care went ignored for two days.63

        3. Over the last three sessions of Congress, members have also attempted to pass legislation that would amend the 14th Amendment to deny birthright citizenship to children born to non-citizens or parents who are not permanent resident aliens.64 If enacted, this change would create an underclass of immigrant children and families who would have few civil and political rights.

iv. Women and Human Trafficking

        1. Trafficking in persons is a widespread problem involving both sexual exploitation and labor exploitation of its victims. Trafficking affects all regions and the majority of countries in the world, and the U.S. Department of State estimates that between 600,000 to 800,000 people are trafficked internationally.65 Of this number, it is estimated that approximately 17,500 individuals are trafficked annually to the U.S.66 Immigrant women of color are disproportionately trafficked into the United States for various types of forced labor. The largest area of origin is South and Southeast Asia, followed by other regions including the Soviet Union, Latin America, and Africa,67 a pattern indicating that trafficking disparately impacts people of other race and colors.

        2. Victims of trafficking are subject to numerous violations of their human rights, such as the right to personal liberty and autonomy, the right to bodily integrity, the right to freedom of movement and expression, the right to freedom from torture or other cruel or inhuman treatment, the right to be free from discrimination, the right to be free from forced labor and slavery, the right to health, the right to free access to education and information, and the right to favorable working conditions, including just compensation and reasonable working hours. Upon exiting a trafficking situation, victims face a range of needs including physical and mental health care, job training and employment issues, housing issues and, possibly, childcare. Victims of trafficking may also face serious legal consequences; they may be detained or deported for immigration violations that are the result of being trafficked, or they may face prosecution for other criminal offenses committed as a direct result of being trafficked.

        3. Trafficking victims’ access to assistance, redress and justice may be hindered due to their race, national or ethnic origin, or citizenship status. Ensuring that trafficking victims may enjoy these protections without such discrimination is part of the U.S.’ obligations under article 5 of the Convention,68 as elaborated upon in General Recommendation 30, wherein the Committee urges States Parties “[t]ake effective measures to prevent and redress the serious problems commonly faced by non-citizen workers, in particular by non-citizen domestic workers, including debt bondage, passport retention, illegal confinement, rape and physical assault.”69

        4. Human trafficking is the result of global economic policies – many of which are promulgated by the United States – that are detrimental to developing countries and impede the ability of women and girls to make choices about their health, employment, and education. Strict U.S. immigration policies limit the migration of foreign-born women and perpetuate the degradation of poor immigrant women. Although there exist numerous federal, state, and local government entities dedicated to addressing human trafficking in the United States, these entities do not tackle the root causes of human trafficking to prevent exploitation from happening.

        5. In 2000, Congress passed the Trafficking Victims Protection Act (TVPA) to address various aspects of trafficking in persons both in the U.S. and abroad. The Act created the T visa, which is available to survivors of trafficking, many of whom are immigrant women of color, who meet certain qualifications. One requirement is the survivor’s willingness to assist in the investigation and prosecution of her trafficker. However, if federal law enforcement officials do not provide an endorsement for the survivor, she may face deportation regardless of the victimization and exploitation she experienced while being forced to work in the U.S.

        6. In addition, the U.S. needs to do more to recognize how strict immigration laws and lack of labor and employment law enforcement contribute to the continuing problem of human trafficking in the U.S. Although low-skilled foreign nationals may enter the U.S. with a H-2B visa, the cap for this type of visa is often reached half-way into the fiscal year.70 Yet, the demand for cheap, unskilled labor continues to beckon immigrants while the number of available visas and routes for legal migration do not come close to meeting this demand. Thus, women and even children succumb to unsafe travel routes to enter the U.S. for work.

        7. Furthermore, immigrant women and girls often labor as invisible workers in private homes as care takers, agricultural workers, or in small-scaled factories that lack legal protective measures, making them more vulnerable to exploitation and abuse. For example, domestic workers are not defined as protected employees under the National Labor Relations Act71 and are not covered by workplace regulations under the Occupational Safety and Health Act.72 The U.S. does not currently do enough to enforce existing labor and employment laws in the low-wage sectors in which immigrant women and children labor, and while its attention to enforcement of laws against trafficking in the sex industry is not to be diminished, said enforcement should not come at the cost of women and children trafficked for their labor, many of whom endure sexual abuse as well as the indentured servitude, forced labor and other violations of their fundamental human rights.

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