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November 17, 2017

Asylum Seekers Wrongfully Prosecuted at the Border

Last week, I was in federal court for the Western District of Texas to observe criminal proceedings against individuals charged with violating section 1325 of the United States Code, a misdemeanor known as illegal entry. This is part of the Trump Administration's policy to make immigration offenses a "high priority" for prosecution and to target "first-time improper entrants." 

The 19 defendants, who hailed from Mexico, Honduras, and El Salvador, were all tried, convicted, and sentenced in one group proceeding known as "Operation Streamline," which lasted about an hour total. 

Streamline raises a range of due process and human rights concerns. Do defendants understand the proceedings and their consequences under such rushed circumstances? Do defense attorneys have sufficient time to meet with their clients? Is shackling defendants at the wrists, waist, and ankles really necessary for individuals charged with a first-time, nonviolent misdemeanor? Not to mention the fact that all 19 defendants were forced to wear surgical face masks—a move that seemed to erase whatever dignity they may have had left under the prison garb, chains, and shackles.

And what about asylum seekers who are coming to the United States to seek protection from persecution? Seeking asylum is a legal right, protected under U.S. law. Moreover, a provision of the Refugee Convention, which the United States adopted when it ratified the 1967 Protocol Relating to the Status of Refugees, prohibits states from penalizing asylum seekers for their manner of entry or presence in the country where they're seeking asylum. This makes sense because asylum seekers are, by definition, fleeing imminent danger and are rarely in a position to seek an entry visa. 

The U.N. refugee agency confirmed at an expert roundtable in 2001 that imposing criminal penalties clearly violates the Refugee Convention. The Department of Homeland Security's (DHS) Office of the Inspector General (OIG) similarly noted, in a report reviewing Operation Streamline, that referring asylum seekers to prosecution may constitute a violation of U.S. treaty obligations.  

As documented in the OIG report, DHS takes the position that whether or not asylum seekers are prosecuted for illegal entry does not impact the outcome of the asylum case, which they may pursue separately after serving a criminal sentence. The judge presiding over last week’s hearing seemed to embrace this view as well.

When four of the 19 defendants stated through their court-appointed lawyer that they were fleeing persecution in Honduras and El Salvador and wished to seek asylum, he told them that when they finished their sentence, "ICE will evaluate your case and see if they can help you out." 

This position fails to recognize that criminally prosecuting an asylum seeker is, in itself, a prohibited penalty under the Refugee Convention. It also implies faith in a system known for its failure to protect due process and fairness, and which has grown increasingly hostile toward asylum seekers. 

The Trump Administration is taking systematic steps to curtail access to asylum, made clear through the January 25 executive orders, their implementing memoranda, and the recently issued White House immigration principles. As Human Rights First reported earlier this year, border officials have illegally turned back asylum seekers from the border, and asylum seekers are rarely released from detention on parole, even when they meet all criteria for release. Some groups report that the administration has gone so far as to separate parents from their children in order to deter other migrants from coming to the United States. 

We have learned anecdotally that many asylum seekers are deported after serving their sentence for illegal entry before getting a chance to make their claim for asylum. But even when individuals make their way through the maze of law enforcement agencies, correctional facilities, and courtrooms that make up the “crimmigration” system at the border, the U.S. government is still violating its treaty obligations for penalizing asylum seekers based on their manner of entry.

This doesn't come as a surprise in a system that systematically dehumanizes asylum seekers at every step along the way. Turning asylum seekers into criminal offenders needs to stop.