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January 27, 2017

Executive Orders Could Block Access to Asylum for Vulnerable Individuals

With Wednesday’s executive order, “Border Security and Immigration Enforcement Improvements,” President Trump seems poised to block access to asylum at the U.S. border, subjecting asylum seekers to “expedited determinations” and locking up more asylum seekers in U.S. immigration detention for even longer. While the details of the administration’s plans for asylum seekers at the border are a bit murky, the message is clear: detain, deport, and expedite processing.

The order will spark a massive escalation in the use of immigration detention and detention costs—at a time when this country’s use of immigration detention is already at an all-time high. There is little doubt that the Department of Homeland Security (DHS) will turn to private prison companies to facilitate this expansion, despite the December 2016 conclusion of DHS’s non-partisan Homeland Security Advisory Council that it should start to “should explore ways to eventually break the status quo.”

In a series of reports issued in August, September, and November 2016, Human Rights First documented the sharp increase in detention, with asylum seekers held in jails and detention facilities for months, often denied bond rates they can afford and release on parole even when they satisfy the relevant criteria. The order makes clear we will see even longer term detentions, instructing the secretary of homeland security to take steps to “ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings … to the extent permitted by law.” The secretary is also asked to “issue new policy guidance” regarding the use of detention “including the termination of the practice commonly known as “catch and release.”

The detention of asylum seekers, particularly when it extends beyond a short period, will in most cases violate U.S. human rights and refugee protection treaty commitments, as detailed in a legal analysis issued last year by Yale Law School’s Lowenstein Human Rights Center. Immigration detention also raises serious legal questions under U.S. law, especially when it is arbitrary, prolonged, or based on deterrence.

The detention of families with children should be avoided, as a DHS advisory committee recommended last year, and medical research shows that even short-term detention can be harmful to children. In fact the American Academy of Pediatrics decried the executive order in a statement “The Executive Orders signed today are harmful to immigrant children and families throughout our country … [b]road scale expansion of family detention only exacerbates their [children and families] suffering.”     

The order also indicates that the executive branch should “expedite determinations of apprehended individuals’ claims of eligibility to remain in the United States.” This unfortunately sounds like a plan to rush asylum seekers and other immigrants, often unrepresented by legal counsel, through proceedings in ways that undermine due process and accurate decision-making. The order calls for immigration judges and asylum officers to be deployed to detention facilities near the border. It is notoriously difficult for immigrants to secure legal representation in detention. In fact, recent studies show only 14% of immigration detainees have legal counsel, and legal representation rates are even lower at some facilities, particularly those located in border or rural areas. Past efforts to initiate rocket-dockets or other rushed or “streamlined” processing have led to flawed decisions and ultimately proven counterproductive to the overall adjudicatory system.

Another provision buried in the order signals that DHS may attempt to return some people arriving by land “to the territory from which they came pending a formal removal hearing,” a move that if used on asylum seekers would violate U.S. treaty commitments under the Refugee Protocol. If this language reflects plans to evade U.S. treaty commitments and turn asylum seekers back to Mexico, the scheme should be scrapped. Refugees and migrants have been attacked, kidnapped, disappeared, and killed in Mexico. LGBT asylum seekers, whether from Africa, Colombia, Honduras, or Mexico itself, face serious danger in Mexico. A person fleeing persecution in Mexico simply cannot be turned back to Mexico, and asylum seekers from other countries would be at risk of deportation, in addition to physical harm, if turned back to Mexico. Many asylum seekers have already been wrongfully deported from Mexico back to their countries of persecution.

Congress created a process for applying for asylum when it passed the Refugee Act, and when it passed the immigration law’s expedited removal provisions, it endeavored to include safeguards to protect bona fide asylum seekers from mistaken deportation. The Trump administration shouldn’t circumvent those protections that Congress sought to preserve – either by turning away asylum seekers at ports of entry or by undermining asylum safeguards. As the bipartisan U.S. Commission on International Religious Freedom documented in reports issued 2005 and 2016, U.S border agents often fail to implement the safeguards designed to protect asylum seekers from mistaken deportation during expedited removal processing. The president’s order includes language that may signal a plan to abrogate safeguards relating to asylum referrals and credible fear determinations.

There are other provisions in the order that may also threaten access to asylum.  These include a potential expansion of expedited removal processing in the interior of the United States and plans to increase criminal prosecutions relating to the border. DHS’s Inspector General raised concerns in a May 2015 report that the criminal prosecution of asylum seekers for illegal entry may violate Article 31 of the Refugee Convention. The order also contains vague statements about ending “the abuse of parole and asylum provisions.” The asylum system contains numerous measures to identify and prevent fraud.

The world is facing the largest refugee and displacement crisis since World War II. The United States has a choice: to set an example for the rest of the world by effectively managing this challenge in ways that safeguard our borders and comply with U.S. treaty commitments to human rights and refugee protection, or to subvert due process and the country’s treaty obligations. As the Council of Foreign Relations’ Independent Task Force on U.S. Immigration Policy––co-chaired by former White House chief of staff Thomas “Mack” McLarty and former Florida governor Jeb Bush––pointed out a few years ago, the U.S. commitment to protect refugees from persecution “is enshrined in international treaties and domestic U.S. laws that set the standard for the rest of the world; when American standards erode, refugees face greater risks everywhere.”

The devil is always in the details, and much will depend on the ways this order is implemented by the DHS and the Justice Department. As they carry our this executive order, they should be guided—as the U.S. Constitution makes clear—“by the supreme law of the land.”