As Prosecutions Rise, Trump Admin Penalizes Asylum Seekers

New data released last week revealed that criminal prosecutions for immigration-related offenses increased by 18 percent, rising for the second straight month since Attorney General Sessions instructed U.S. attorneys to expand prosecution for immigration offenses. This rise follows a 27 percent increase in May, demonstrating that the Trump Administration is making good on its promise to ratchet up prosecutions for immigration “violations.”

This escalation in prosecutions comes  at a time when a high proportion of those crossing the southern border are seeking safety and refuge, having fled unspeakable violence. Yet despite the fact that seeking asylum is a right recognized in both U.S. and international law, many asylum seekers are nevertheless criminally charged, prosecuted, sentenced, and imprisoned for their so-called “illegal” entry, which can carry a sentence of up to twenty years.

Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan aptly summarized the Trump Administration’s new policy, warning that if “you committed a crime by entering this country, you should be uncomfortable, you should look over your shoulder, and you need to be worried…No population is off the table.” These blanket prosecutions stand in direct contravention to U.S. obligations under international law, which prohibit the prosecution of refugees “on account of their illegal entry or presence.” As explained in the introductory note to the Refugee Convention, article 31 recognizes that seeking safety “can require refugees to breach immigration rules” and as such state parties to the Convention are generally prohibited from prosecuting an asylum seeker for this. Yet as Human Rights First reported, the United States is routinely and unabashedly doing so. In fact, the United States government acknowledges that it prosecutes asylum seekers for such offenses, and the Department of Homeland Security Office of Inspector General warned that this “may violate U.S. obligations” under the Convention.

In surveys currently conducted by Human Rights First, criminal defense attorneys across the country report that they represented clients charged with “illegal entry” and “illegal reentry” who had expressed an intention to seek asylum. However, when asylum was raised in court or with the prosecutor, their clients were prosecuted nevertheless. One attorney stated that due to increased prosecutions under the Trump Administration, and the speed at which they are being conducted, defendants have “less opportunity to express fear.”

Human Rights First was also informed by a New York attorney that her asylum-seeking client from El Salvador—who has three U.S.-citizen children, and had already passed his reasonable fear interview and was given a date for his immigration court hearing —was recently arrested and charged for entering the United States without authorization years ago. As a result, his case is hanging in the balance as he sits in jail awaiting trial. Unfortunately, this is not an isolated incident, as Human Rights First has received information of such practices taking place elsewhere.

This intensification of criminally prosecuting immigration violations also coincides with the lowest border apprehensions in years. In fact, under the Obama Administration, illegal immigration hit its lowest level in more than 40 years.

Framing the act of entering the United States to seek asylum as illegal wrongly suggests that individuals fleeing threats to their life and freedom are breaking the law. Ironically, the administration, as it seeks to criminalize immigrants more severely than ever seen, may be the law-breaker in this case. Rather than wasting taxpayer dollars on prosecuting, imprisoning and—in some cases—wrongfully deporting asylum seekers and other vulnerable immigrants, the United States should live up to its promise of protecting the persecuted.


Published on August 4, 2017


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