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November 08, 2017

Will Trump DHS Nominee Adhere to International Law?

This content originally appeared in the Huffington Post

On Wednesday, the Senate Homeland Security Committee will have the opportunity to question Kirstjen Nielson, President Trump’s nominee for Homeland Security Secretary. Senators should ask Ms. Nielson about her knowledge of, and commitment to, upholding U.S. human rights and refugee protection treaties and legal commitments.

The United States helped lead efforts to draft the Refugee Convention in the wake of World War II. As a party to the Convention’s Protocol, the United States has agreed to implement the Convention’s protections. The United States is also a party to the Convention Against Torture and the International Covenant on Civil and Political Rights. Through these treaties, the United States is prohibited from returning refugees to their countries of feared persecution, penalizing them due to illegal entry, discriminating against them due to their religions or nationality, and detaining them unnecessarily where alternative measures would suffice, or otherwise arbitrarily.

Yet the Department of Homeland Security and its component agencies have violated many of these legal obligations. Over the last year, Customs and Border Protection has turned away asylum seekers at the U.S. southern border. The agency is referring asylum seekers for criminal prosecutions on the grounds of their “illegal entry” or re-entry. Immigration and Customs Enforcement (ICE) is holding asylum seekers in detentionfacilities even in the many cases where detention is not needed to achieve the government’s objective of securing appearance for hearings. Despite U.S. treaty obligations, President Trump has directed that detention continue for the duration of immigration court proceedings.

DHS has also played a central role in advancing President Trump’s goal of blocking Syrian and other Muslim refugees from resettlement in the United States. The agency reportedly advocated for an even lower resettlement goal for fiscal year 2018 than the all-time low goal set by the administration of 45,000. The agency then co-authored a memorandum to President Trump requesting further restrictions on refugee resettlement, including cancellation of refugee family reunification through the follow-to-join process and a 90-day suspension for refugees from Syria and other Muslim majority countries, on top of all the prior suspensions. President Trump’s third executive order implemented DHS’s policy recommendations. Already, resettlement of Syrian refugees has been sharply cut, and U.S. leadership is in sharp decline.

These steps have been taken even though national security, military, and intelligence officials who have served both Republican and Democratic administrations have confirmed that refugees are more rigorously vetted than any other travelers to the United States. Many former military leaders and former national security officials from both parties have expressed their concern that such a ban would actually undermine U.S. national security interests, undermine the stability of countries like Jordan that the United States needs as allies, and actually play into ISIS rhetoric. These former officials and military leaders have explained that resettling refugees is not only consistent with American ideals, it also advances U.S. national security interests, including by supporting stability in volatile regions.

At Wednesday’s hearing, Senators should ask Ms. Nielson to affirm that immigration enforcement efforts should be conducted in ways that are consistent with U.S. treaty and legal obligations and ensure that refugees have access to the U.S. asylum process. She should be asked what steps she will ask CBP to take to make sure the United States does not turn away asylum seekers in violation of U.S. law and treaty obligations, and does not refer asylum seekers for criminal prosecution in violation of the Refugee Convention’s prohibition against penalizing refugees for illegal entry. She should be asked what steps she will ICE to take to ensure that the use of administrative detention is consistent with U.S. treaty obligations under the Refugee Convention, its Protocol and the International Covenant on Civil and Political Rights.

On resettlement, Senators should ask detailed questions about “enhanced” vetting and what steps Ms. Nielson will take to ensure that refugees of all religions are treated fairly, without discrimination, and not improperly blocked from resettlement. She should also be asked about the impact of the administration’s latest ban on Iraqi interpreters, their families and other U.S. affiliated Iraqis whose resettlement has been further delayed due to the bans, and what steps she will take to ensure these people are vetted in a timely manner and brought to safety.

U.S. treaty obligations are not optional. Senators should ensure Nielson commitment to upholding the law.