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January 18, 2018

Report Documents Administration’s Shameful Criminal Prosecution of Asylum Seekers at Border

New York City—A new report released today shows that amid President Trump’s campaign to block refugees seeking protection from this country, his administration has increased the criminal prosecution of asylum seekers and migrants at the southern border. The administration’s tactics, which include referring asylum seekers for prosecution even after they've clearly stated a fear of return, separating families in order to begin criminal proceedings against parents, and pushing plea agreements that force asylum seekers to forego their claims for protection, are a violation of U.S. treaty obligations and due process. 

Human Rights First’s report, “Punishing Refugees and Migrants: The Trump Administration’s Misuse of Criminal Prosecutions,” is a result of firsthand research conducted at eight federal courts along the border and through in-depth communications with criminal defense and immigration lawyers over several months.

"Referring asylum seekers for prosecution is a clear violation of U.S. treaty obligations, and places asylum seekers at heightened risk of return to countries where they may face persecution," said Human Rights First's Olga Byrne. "Seeking asylum is a legal act, but this administration is committed to criminalizing asylum seekers—like all immigrants—in its efforts to sell its harmful, xenophobic policies. These asylum seekers will now have a criminal record and the administration will count them as so-called 'criminal aliens' in its enforcement statistics." 

On January 25, 2017, President 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 cases already made up more than half of all federal prosecutions nationwide. Then-secretary of homeland security John Kelly then 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.” 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.

These directives subvert U.S. treaty obligations that prohibit the penalization of refugees for unauthorized entry or presence—protections created in the wake of World War II after many nations treated refugees seeking asylum in their countries as “illegal” entrants. As a result, asylum seekers are subjected to a deeply dehumanizing system that punishes them for seeking protection and threatens to return them to countries where they will face persecution—a violation of the Refugee Convention.

Asylum seekers and migrants are often prosecuted in large, group hearings known as "Operation Streamline" (which is now officially termed the "Criminal Consequence Initiative"). In these en masse hearings, defendants are often held in five-point shackles and may have their entire case heard, pled, and sentenced in a matter of minutes.

Human Rights First’s findings include:

  • Criminal prosecutions of vulnerable migrants and asylum seekers are increasing. While prosecutions of illegal entry and reentry soared under the Bush and Obama Administrations, the Trump Administration is targeting the most vulnerable immigrants. 
  • CBP is separating children from their parents in order to refer the parents for criminal prosecution. 
  • Asylum seekers make up a significant portion of cases prosecuted for illegal entry or illegal reentry. Forty-eight percent of defense attorneys surveyed by Human Rights First who practice along the southern border said that more than half of their clients are asylum seekers.
  • CBP officers refer, and DOJ often prosecutes, asylum seekers for illegal entry into or presence in the United States regardless of their intention to seek protection, and no federal district along the border has a policy of exempting asylum seekers from criminal prosecution. CBP agents in sectors along the border indicated that they refer people for prosecution irrespective of their intention to seek asylum. 
  • Some plea agreements force asylum seekers to forego their claims for refugee protection, violating not only Article 31 of the Refugee Convention, but also Article 33’s prohibitions against return to countries of persecution.
  • Criminal prosecutions thwart access to asylum, sending asylum seekers back to countries where they face persecution, in violation of treaty obligations. Numerous defense and immigration attorneys, as well as humanitarian organizations, reported instances when ICE and CBP failed to refer asylum seekers for credible fear interviews after they completed their criminal sentence. 
  • En masse, fast-track prosecutions for illegal entry and reentry violate due process and other constitutional protections. The Criminal Consequence Initiative (formerly know as "Operation Streamline") combines each defendant’s initial appearance, preliminary hearing, plea, and sentencing into one hearing that can last less than one minute, and many defendants are held in five-point shackles making it difficult to stand up straight or sit comfortably. 
  • DHS fails to track cost and other statistics related to illegal entry and reentry prosecutions.  

The report also includes numerous recommendations for the Department of Homeland Security, the Department of Justice, and Congress. For more information or to speak with Byrne contact Corinne Duffy at DuffyC@humanrightsfirst.org or 202-370-3319.