Tomorrow morning the new Secretary for Homeland Security, General John F. Kelly, will testify before the House Homeland Security Committee. The hearing, “Ending the Crisis: America’s Borders and the Path to Security,” will be a good opportunity to find out how exactly the U.S. Department of Homeland Security (DHS) is planning to carry out President Trump’s executive orders relating to refugees and immigrants.
A lot of attention has deservedly been focused on the January 27 order that bans Syrian refugees indefinitely, suspends all resettlement for 120 days, and bars visitors and immigrants from Syria, Iraq, Iran and four other Muslim-majority countries for 90 days. As bipartisan groups of former national security officials have warned again and again, this kind of approach harms rather than helps U.S. national security. After the State of Washington filed suit, a federal court temporarily stayed portions of that executive order, so some refugees and visa holders have begun arriving again, though that stay could be lifted depending on how the litigation progresses.
The January 27 executive order is not the only one that will impact this country’s treatment of refugees, however. Two days earlier, President Trump issued an executive order that targets asylum seekers and refugees seeking protection along the U.S. southern border. With that order, “Border Security and Immigration Enforcement Improvements,” the Trump Administration appears poised to block access to asylum at the U.S. border, subject asylum seekers to “expedited determinations” and lock up more asylum seekers in U.S. immigration detention for even longer. The details are more than a little unclear, however, and General Kelly may be able to shed light on these plans and what steps will be taken to ensure compliance with U.S. law and treaty commitments.
The order directs Secretary Kelly to “immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico,” to take steps to “ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings … to the extent permitted by law,” and to “issue new policy guidance” regarding the use of detention, “including the termination of the practice commonly known as “catch and release.”
Yet this country’s use of immigration detention is already at an all-time high. In a series of reports issued in August, September, and November 2016, Human Rights First documented the sharp increase in detention of asylum seekers. Many are held in jails and detention facilities for months, often denied bond rates they can afford, and denied release on parole even when they satisfy the relevant criteria. In other words, the United States is already holding a lot of people in costly and inhumane immigration detention facilities who don’t warrant detention.
The hearing will also be a chance to learn what plans DHS has to build—or engage private corporations to provide—new detention facilities, where exactly the facilities will be located, and what plans DHS has to change immigration detention policies and practices. General Kelly should be asked specifically whether DHS will end the practice of detaining families with children or increase detention times for families with children, despite the concerns of the American Academy of Pediatrics and the advice of a DHS advisory committee. He should also be asked what steps he will take to bring detention policies and practices into compliance with U.S. treaty obligations under Article 9 of the ICCPR and the Refugee Convention and Protocol.
The January 25 border order raises serious concerns that the Trump Administration plans to block access to asylum at the border or launch some kind of rocket-docket asylum or immigration processing. General Kelly should be asked exactly what kind of asylum and other processing DHS is planning, where this processing will occur, and what plans it is developing with respect to asylum seekers who request protection at U.S. ports of entry.
General Kelly may also be able to explain the meaning of a provision, buried deep in the executive order, that signals that DHS may attempt to return some people arriving by land “to the territory from which they came pending a formal removal hearing.” If used to turn back asylum seekers, whether to Mexico or elsewhere, this would violate U.S. treaty commitments under the Refugee Protocol. Indeed, Congress has enacted laws to endeavor to ensure access to asylum.
The order directs that new detention facilities be situated at or near the border, even though—or perhaps because—there has long been a dearth of pro bono legal resources in those areas. It also calls for the executive branch to “expedite determinations of apprehended individuals’ claims of eligibility to remain in the United States”—a provision that requires explanation given that past efforts to initiate rocket-dockets or other rushed or “streamlined” processing have led to flawed decisions and ultimately proven counterproductive to the overall adjudicatory system.
The Trump Administration shouldn’t undermine this country’s legal obligation to protect the persecuted in the name of security. The United States can both safeguard the security of its borders and ensure access to protection for refugees.