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July 20, 2017

The Rise in Criminal Prosecutions of Asylum Seekers

On January 25, 2017, President Donald Trump issued an executive order calling on the Department of Justice (DOJ) to make criminal prosecution of immigration offenses a “high priority”—even though such prosecutions already made up more than half of all federal prosecutions nationwide. Secretary of Homeland Security John Kelly subsequently directed Customs and Border Protection (CBP) and other Department of Homeland Security (DHS) agencies to target people for offenses that included “illegal entry and reentry” and “unlawful possession or use of official documents.” In April and May, Attorney General Jeff Sessions instructed federal prosecutors to make “immigration offenses higher priorities,” target “first-time improper entrants,” and “charge and pursue the most serious, readily provable offense” in all charging decisions.

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These directives failed to mention U.S. treaty obligations that prohibit the penalization of refugees for illegal entry or presence—protections created in the wake of World War II, after many nations had treated refugees who sought asylum in their countries or who had invalid travel documents as “illegal” entrants. In fact, the Department of Homeland Security’s Office of Inspector General warned in 2015 that the referral of asylum seekers for criminal prosecution may violate U.S. obligations under the Refugee Convention and its Protocol. The bipartisan U.S. Commission on International Religious Freedom (USCIRF) also expressed concern about this practice.

The U.S. government is escalating these criminal prosecutions at a time when U.S. border authorities are attempting to deter and penalize a population

that is largely seeking refugee protection, and when the United States, Mexico, and Central American countries are struggling to respond to a regional refugee and displacement crisis.

Following the Trump Administration’s directives, the criminal prosecution of migrants and asylum seekers for immigration offenses has sharply increased. Also, in a major shift, the government is aggressively prosecuting first-time entrants. A Human Rights First researcher observed the prosecution and conviction of many asylum seekers and immigrants in April, May, and June 2017, and as detailed below, found that asylum seekers are regularly subjected to criminal prosecution for illegal re-entry and increasingly for illegal entry.