Trump and the Criminalization of Asylum

Originally published on Huffington Post

In early September of 2017, U.S. Marshals ushered twenty-four defendants into an El Paso, Texas courtroom. Shackled around the wrists, ankles, and waists, they staggered forward, their chains clanging. Two court-appointed attorneys took twelve of the defendants, six each, and urged them all to plead guilty to the crime of “illegal entry.”

Two women from El Salvador didn’t want to plead. Crying, clearly confused, they explained that they had come to the United States to seek asylum. The lawyer told them that it was risky to go to trial. Still, the women resisted. They apparently didn’t understand why they were being charged with a crime when all they had done was seek protection in a country known for providing it to refugees.

“Trump is not letting people stay,” the lawyer said.

Over the years, the United States has often lived up to its image as a protector of people uprooted by violence, calamity, and persecution. One could argue, in fact, that on this more than any other issue, American actions have aligned with American ideals. President Trump, however, is slamming the door on refugees in different ways, and the country’s identity is in danger of shattering.

The President’s “Muslim ban” and his reduction of refugee resettlement have received the most press attention and political pushback. Largely overlooked is his administration’s attack on asylum, which includes an intensive effort to criminally prosecute immigrants for “illegal entry” and “illegal re-entry.”

Last year, I spent many hours at ground-zero for this effort—federal district courts along the southern border—where a “zero tolerance” initiative called Operation Streamline is in effect. Under Streamline, the U.S. government rapidly prosecutes all who enter the country without authorization. I’ve visited all eight Streamline courts and watched more than 500 prosecutions for entry charges. All the defendants have been Latino.

Prosecutions for “illegal” entry and re-entry have sharply jumped under Trump. In the month after Attorney General Jeff Sessions issued a memorandum instructing federal prosecutors to make “immigration offenses higher priorities,” criminal prosecutions for “illegal entry” and “re-entry”  increased by 27 percent, a number that has continued to grow, overwhelming the federal courts. Sessions’s memo followed an executive order from the President and an implementing memo from then-Secretary of Homeland Security John Kelly similarly calling for more prosecutions.

Absent from these directives is any mention of the right to seek asylum. The United States led efforts to draft the 1951 Refugee Convention. Under the Convention and its Protocol, the United States is prohibited from penalizing asylum seekers “on account of their illegal entry or presence”—a protection created following World War II when many nations 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.

While the resettlement process brings refugees from overseas to the United States, the asylum process begins—or is supposed to begin—when refugees who’ve arrived in the United States request protection. Increasingly under President Trump, border officials are illegally turning away asylum-seekers. Other asylum-seekers find themselves in a criminal courtroom, pleading guilty, caught in a process they don’t understand.

In Tucson—the Streamline hearings I observed—one group of shackled defendants was prosecuted right after another; each defendant’s prosecution lasted less than a minute. Prior to the Trump presidency, fewer than ten defendants were processed on some days. Now with calls from the administration to deter “first-time improper entrants,” up to 75 are processed every day.

The court in Las Cruces, New Mexico is in a state of tumult; I regret not calling the fire marshal. Shackled defendants spilled out of the jury box and were stuffed between desks and tables and in the spectators’ gallery. I was in the back, sandwiched between border patrol agents. The seasoned agent to my left made light of the seventy-year-old man shuffling up to the front, and the rookie to my right hung his head in apparent unease at his colleague’s comments.

While El Paso is considered a former Streamline district, it’s very much alive and unwell there. In fact, I observed even more legal problems in El Paso than Tucson. The Supreme Court has long held that the Constitution protects noncitizens charged with crimes in the United States. Yet in these hearings, the shotgun speed, language barriers, disorientation of the defendants, and miniscule chance for them to consult with their attorneys led to clear constitutional violations, especially of the right to due process.

The judge had the twelve defendants, including the women from El Salvador, stand in a horseshoe-shape before him and barreled through about 20 yes/no questions, such as “Are you willing to waive you trial rights?” and “Are you pleading voluntarily?” Wearing headsets to hear a translation, all the defendants said “sí” to all these questions. The judge warned that if they went to trial the sentence would be up to six months in prison, then asked if they pled guilty. They all did, and the judge sentenced them to timed-served and one-year probation, notifying them that they “cannot illegally enter the United States” again. “If you do, you will be charged with a felony.” Felony re-entry carries a maximum sentence of twenty years.

I learned that many of these defendants are refugees and asylum seekers who’ve endured horrors and grueling journeys. The Trump Administration’s blanket prosecutions for “illegal entry” are effectively criminalizing the act of seeking asylum and violating U.S. treaty protections.

I’ve heard many stories like that of the 54-year-old Mexican man from Chihuahua who was shot at and driven out of his home by a drug cartel. After the police refused to help, he fled to the United States but was afraid to present at the port of entry because the cartel monitors it. Instead, he hopped the fence in broad daylight. He surrendered to Border Patrol with his hands up and asked for asylum. He was charged with illegal entry and put in detention, where he awaits a criminal hearing.

The makeup of defendants in El Paso began to change in 2014 when rampant violence and human rights violations sparked an exodus from the Northern Triangle—Honduras, Guatemala, and El Salvador. Today, most of those charged with illegal entry are from Central America. They include many families with children. In some cases, when immigration officials prosecute adults for illegal entry, they take away their children and send them to Office of Refugee Resettlement. Often, they are deported separately; sometimes the child remains indefinitely. Recently, a man, woman, and their 15-year-old daughter who fled government threats in Venezuela requested asylum upon apprehension by Border Patrol. The daughter was sent to a federal foster care and her parents were referred to criminal prosecution and pled guilty to “illegal entry.”

Many asylum seekers believe that they are in an immigration court, not a criminal court, and expect to have a chance to explain their reasons for seeking protection. When they express a fear of return or recount the horrors they fled, judges explain that this is not the forum for hearing such claims. Neither the prosecutor nor judge will dismiss charges based on one’s intention to seek asylum. Some defense attorneys told me that they don’t bother mentioning their clients’ expressed fear of return during these en masse, fast-track hearings anymore, because doing so would be futile. Border Patrol representatives and a Border Patrol attorney who has been deputized to prosecute in Tucson’s Streamline expressed to me their belief that the government can criminally prosecute people even if they are seeking asylum.

While most defendants in El Paso plead guilty to illegal entry, often under threat of greater detention time should they contest the charges, some opt to go to trial. For them, detention is preferable to deportation back into danger and persecution. They choose a longer sentence as a form of life-preservation.

I keep hearing the wailing of those women, who had summoned the courage to escape danger in their home countries, only to face further suffering here. I wanted to apologize to them, and to all the other “criminal” asylum-seekers who had come here hoping to find the protection they desperately needed.

When you work with refugees, you get to know people who have suffered unspeakable horrors and infuriating injustice. To guard against burnout, you have to steel yourself. Yet I found myself crying as I watched my government criminally prosecute people guilty only of asking the United States to be the country it claims to be.


Published on January 5, 2018


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