Zero-Tolerance Criminal Prosecutions: Punishing Asylum Seekers and Separating Families

By Eleni Bakst and Jake Benhabib

Between April and June 2018, Human Rights First researchers conducted three monitoring missions to McAllen, Brownsville, Laredo, and El Paso, Texas to gather information about the implementation and impact of these policies. Researchers visited five federal courts, seven ports of entry, and nine immigration detention facilities. During these missions, Human Rights First discovered the following.

• Criminal prosecutions of asylum seekers and migrants have sharply increased since the implementation of the zero-tolerance policy, with many federal courts experiencing record high numbers. Statistics indicate a 60% increase in overall prosecutions between January and April 2018 and data from the federal public defender’s office in El Paso shows a 360% increase in prosecutions in April 2018 over April 2017, as well as a 75% increase in May, and a 206% increase in the first two weeks of June.
• CBP separated children from their parents and the parents were prosecuted for illegal entry and reentry. During June 2018, Human Rights First researchers observed criminal prosecutions of numerous parents who were desperately searching for their children. In one case, CBP agents took an 8-month-old baby from a mother who was then criminally prosecuted for the misdemeanor offense of illegal entry in El Paso.
• Despite the administration’s messaging that the only “right” way to seek asylum is to cross at an official port of entry, CBP has instituted staggering barriers to accessing asylum at these ports, including telling asylum seekers that ports are “full” or “at capacity,” requiring families to wait for days without any certainty that they will be allowed entry, or even turning people back into Mexico without processing their requests for protection.
• These turn-backs have left families seeking protection stranded in difficult and often dangerous conditions in Mexico, where they are sometimes targeted by kidnappers, traffickers, and cartels. The practice of turning away asylum seekers at ports of entry, as Human Rights First also documented in 2017, pushes some to attempt to cross between ports of entry.
• President Trump’s executive order did not end family separations. Instead, it called for an increase in family detention, another inhumane practice that risks long-term damage to children. The American Academy of Pediatrics has condemned family detention, noting that even short-term detention can be permanently harmful to the medical and mental health of children. It is associated with poorer health outcomes, higher rates of psychological distress, and suicidality. Moreover, the president’s executive order did nothing to reunite the thousands of children who were cruelly separated from their families.

During “Streamline” court observations—court sessions in which large groups of migrants are prosecuted together—Human Rights First witnessed numerous cases of family separation, including:

• In the El Paso Streamline court on June 18, 2018, 12 of 35 defendants prosecuted were parents separated from their children by the U.S. government.
• In the McAllen Streamline court on June 15, 2018, 36 of 74 defendants were parents separated from minor children. When this was raised in court, the judge stated that this was not the proper forum to raise family separation issues.
• In the Laredo Streamline court on June 14, 2018, at least two of 40 defendants were parents separated from their children at the border. When the federal public defender raised this, the judge stated, “This is a consequence of you coming here and breaking the laws of our country…That would happen in any case where you commit a crime…The situation you are in today is a consequence of your own decisions.” The federal public defender responded that while any parent going to jail would be separated from his child, children of parents in other criminal proceedings do not also serve a sentence.