Punishing People Seeking Asylum Is Not a Solution

Human Rights First is alarmed at today’s announcement that DOJ and DHS are increasing resources to conduct more federal criminal prosecutions for immigration violations.

Criminal entry and reentry prosecutions have racist roots and a history of due process abuses, refugee treaty violations, family separations, and waste of critical resources. Through its “Zero Tolerance” policy, the Trump administration escalated criminal entry and re-entry prosecutions, prosecuted families, trampled on due process and separated children from their families.

“Subjecting people seeking asylum, or coming to this country to work, to criminal prosecutions for immigration violations is not a solution” said Eleanor Acer, Senior Director for Refugee Protection at Human Rights First. “The use of entry and reentry statutes with racist roots will just bolster anti-immigrant narratives that falsely paint immigrants as criminals and fail to actually address challenges at the border. Prosecuting people seeking asylum due to their manner of entry would violate U.S. treaty obligations that prohibit such penalties in most cases. Instead of adopting another notorious page from the Trump playbook, the Biden administration should ramp up its pressure on Congress to properly resource the civil immigration system by funding the immigration courts that conduct removal proceedings.”

Human Rights First and its experts have extensively documented, in a series of prior reports and analyses, the legal violations, human rights abuses, family separations and wasted resources caused by the Trump administration’s use and escalation of criminal prosecution of migrants and asylum seekers for irregular entry and re-entry. Human Rights First has called on the U.S. government to take fair, effective and humane steps to address challenges at the border. These steps are outlined in the organization’s reports and recommendations. 

The DHS Office of Inspector General (OIG), as well as the U.S. Commission on International Religious Freedom, previously raised concerns about the referral of asylum seekers for criminal prosecution, noting U.S. treaty obligations to refrain from penalizing refugees for their manner of entry or presence. In June 2018, 70 former U.S. Attorneys — who had served under both Democratic and Republican administrations — issued an open letter objecting to the Trump administration’s zero tolerance prosecutions and family separations. They explained that “It is a simple matter of fact that the time a Department attorney spends prosecuting misdemeanor illegal entry cases, may be time he or she does not spend investigating more significant crimes like a terrorist plot, a child human trafficking organization, an international drug cartel or a corrupt public official.”