Senators Should Question Kelly on Upholding Commitments to Refugees, Asylum Seekers

Washington, D.C.—In a statement submitted to the Senate Committee on Homeland Security and Governmental Affairs, Human Rights First today urged senators to question Department of Homeland Security (DHS) Secretary John Kelly on how he intends to safeguard U.S. borders while still upholding the United States’ legal commitments to protect refugees and asylum seekers. Kelly is testifying this morning at a hearing before the committee, “Improving Border Security and Public Safety.”

“The United States can both safeguard its borders while also complying with its legal and treaty obligations with respect to refugees and asylum seekers. In the wake of President Trump’s January 25, 2017 executive order on Border Security and Immigration Enforcement Improvements, Human Rights First is concerned about a number of DHS policies and practices that thwart access to asylum, undermine U.S. global leadership, and contravene U.S. legal and treaty commitments,” wrote Human Rights First.

In a recent report, Human Rights First found that President Trump’s executive order and related guidance from DHS are likely to drastically increase detention times for asylum seekers, including in the El Paso region. Human Rights First researchers recently visited areas along the border in Texas and California, as well as in Mexico. The last leg of this research was completed last week, and the organization will issue a report summarizing its findings shortly. Through its research and interviews, Human Rights First identified cases of asylum seekers who were turned away from the U.S. southern border.

Human Rights First notes that policies that thwart access to asylum, undermine U.S. global leadership, and contravene U.S. legal and treaty commitments include:

• Improperly turning away asylum seekers. At a number of official ports of entry along the southern border, some Customs and Border Protection (CBP) officers have improperly turned away asylum seekers without referring them, as required by law, for protection screening interviews.
• Unduly high screening standards. A new lesson plan relating to credible fear of persecution or torture, issued by U.S. Citizenship and Immigration Services (USCIS) in February 2017 in the wake of the January 25 executive order, includes revisions that are inconsistent with U.S. law and put people at risk of return to persecution or torture.
• Escalating detention and failure to parole eligible asylum seekers. The president’s January 25 executive order calls for an escalation of immigration detention, which is already at an all-time high.

With respect to the turning away of some asylum seekers at the southern border, Human Rights First stated, “[These measures] are also counterproductive as they leave asylum seekers with the impression that they must attempt to cross the border without authorization rather than to approach a formal port of entry to request asylum.”

Human Rights First recommends the following steps to ensure that all DHS policies and practices comply with U.S. law and human rights and refugee protection treaty commitments including:

• CBP officers must stop improperly turning away some asylum seekers at the southern border, and DHS must assure that CBP border officers are better trained to identify and refer asylum seekers for screening interviews.
• DHS must not pursue any formal arrangement aimed at turning away asylum seekers at the border, including any plan to have them wait in Mexico where they would face grave dangers.
• USCIS lesson plan guidance with respect to credible fear assessments should be brought into compliance with the congressional standard, and should call for a screening—not a full blown asylum eligibility assessment—including with respect to identity and credibility.
• Immigration and Customs Enforcement (ICE) should effectively implement and retain its 2009 directive on the Parole of Arriving Aliens Found to Have a Credible Fear of Persecution of Torture, and should not issue any guidance that calls for the continued detention of asylum seekers who do not present flight or danger risks and can establish their identities. ICE should generally release asylum seekers from detention after they are ruled eligible for asylum by an immigration judge, as has long been the policy.
• DHS and the Department of Justice (DOJ) should provide prompt initial access to immigration court custody (bond) hearings for arriving asylum seekers, as well as access to such hearings at six-months of detention and subsequently. While arriving asylum seekers have access to immigration court merits hearings, they are not afforded access to these bond hearings under current regulatory language.