Seeking Asylum is Not a Crime, but Trump is Prosecuting Them Anyway
In the month since Attorney General Jeff Sessions issued a memorandum asking all federal prosecutors to make “immigration offenses higher priorities,” criminal prosecutions for “illegal entry” and “reentry” have increased by 27 percent. His memo followed an executive order from President Donald Trump and an implementing memo from Secretary of Homeland Security John Kelly similarly calling for more prosecutions.
Troublingly absent from all these directives is any mention of asylum. It is not a crime to seek asylum. In fact, it is a fundamental human right. Moreover, parties to the 1951 Refugee Convention, such as the United States, are prohibited from penalizing asylum seekers “on account of their illegal entry or presence”—a protection created following World War II when many states treated refugees as “illegal entrants.” Today, under both international and U.S. law, those fearing persecution in their home country don’t need approval to seek asylum here.
Yet today this right is increasingly under threat as refugees face a rise in criminal prosecutions, and a process called Operation Streamline is facilitating it. Initiated in Del Rio, Texas in 2005, Streamline aimed to implement a “zero-tolerance” policy by criminally charging and rapidly prosecuting all who entered the Del Rio sector without authorization. Streamline spread to other border districts, and today operates in Tucson, Arizona as well as Del Rio and Laredo, Texas.
At the U.S. District Court in Tucson I’ve personally seen the harmful effects of Operation Streamline. Defendants are bound by chains on their ankles, waists, and wrists, which clank eerily as they stagger up to a row of five to seven microphones before a magistrate judge. Each is tried, convicted, and sentenced in mini-hearings lasting less than a minute. One judge claimed a personal record of sentencing 70 people in 30 minutes. In this extraordinarily rushed process, the judge speeds through five binary questions with each defendant—“yes/no,” “guilty/not guilty”—and issues a prison sentence. Then defendants are immediately ushered out of the courtroom, and the next group is bustled to the front to repeat the process.
The effects of the Trump Administration’s policy shifts have already been felt in Tucson. For the past few years, Streamline prosecuted defendants only for illegal reentry, which was pled down to misdemeanor illegal entry. Therefore on some days, less than ten defendants were processed. But with calls from the administration to deter “first-time improper entrants,” the hearing now frequently nears or reaches maximum capacity, processing up to 75 people per day as the docket now includes charges of first entry.
Tucson Border Patrol recently told me that, with only a few exceptions (e.g., minors, family units), everyone will be prosecuted. Meanwhile, the Department of Homeland Security Office of Inspector General has recognized that prosecuting asylum seekers “may violate U.S. treaty obligations.”
Defense attorneys can inform the judge that their client came to the United States to seek asylum, but this has no impact. I watched as an attorney explained that his Honduran client crossed into the United States to seek asylum. In response, the judge told the asylum seeker “once you serve your 30-day prison sentence you will be referred to immigration. When you get [there]…you raise that at that time, do you understand that?” The man hesitated for some time and softly murmured “Si.” This man and the rest of his group were ushered out of the courtroom, and the next row filed in. Again, an attorney stated his client’s reason for coming was to seek asylum, to which the judge gave the same response and sentenced him.
Several Tucson Streamline defense attorneys tell me that many of their clients express a fear of return to their home countries or an intention to seek asylum. Judges tell them all the same thing: that they must first be prosecuted and serve a prison sentence. Two defense attorneys said that of the eight clients they represented that day, four expressed a fear of return. Yet neither attorney mentioned this in Streamline, as they felt it would be futile.
Trump and Sessions are wrong to mandate blanket prosecutions that effectively criminalize the right to seek asylum. This policy is inconsistent with America’s longstanding tradition of protecting and welcoming the world’s most vulnerable people. The United States is more than capable of finding an appropriate response that is not only compassionate and morally right, but that also upholds the law.
Human Rights First released a brief detailing the implications on asylum access for those prosecuted for immigration offenses.
