DHS Memorandum Would Undermine Access to Asylum, Impose Arbitrary Detention

Human Rights First expressed its opposition to proposals included in a draft Department of Homeland Security (DHS) memorandum outlining potential steps to implement President Trump’s executive order relating to the border and asylum that would block access to asylum and hold asylum seekers in immigration detention for extended periods of time.

“The Trump Administration appears poised to continue its cruel policy of targeting refugees fleeing persecution and seeking U.S. protection. The draft memorandum effectively labels the act of applying for asylum as ‘illegal,’ signals that access to asylum should be restricted, and calls for blanket detention of asylum seekers based on a goal of deterrence, regardless of whether an individual asylum seeker actually present a risk of flight,” said Human Rights First’s Eleanor Acer. “The order and memorandum appear to devise a scheme to turn away asylum seekers at the U.S. southern border, a move that would leave them vulnerable to torture, disappearance, trafficking and killings.”

The executive order and draft DHS memorandum would, among other things:

• Essentially bar asylum seekers who present themselves at a formal U.S. border entry point from parole, leaving them in detention facilities for extended period of time and depriving them of an individualized assessment for the need for their continued detention;
• Hold all asylum seekers who have crossed the border, including families with children, in detention for extended periods of time;
• Restrict access to asylum through the credible fear screening process;
• Violate U.S. treaty commitments by potentially turning away asylum seekers at the southern border;
• Massively expand the use of expedited removal in the interior of the United States, depriving many of immigration court hearings, instead putting them at risk of summary deportations at the hands of Immigration and Customs Enforcement (ICE) officers;
• Take steps to enlist the National Guard to act as immigration agents in some states;
• Deprive some unaccompanied children of access to crucial protection, particularly access to asylum office interviews;
• Increase criminal prosecutions for illegal entry and regardless of whether the individuals are seeking asylum.

“These draconian proposals fly in the face of the Constitution and U.S. human rights and refugee protection treaty commitments. President Trump’s executive order and these related proposals present a poor example for the rest of the world. If the United States shirks its international legal responsibilities, so too will other nations,” added Acer.

Human Rights First notes that when Congress—with strong bipartisan support—passed the Refugee Act of 1980, the United States codified its commitment to the 1951 Refugee Convention and its Protocol. Under those treaties, states can’t return refugees to places where their lives or freedom would be threatened or reject potential refugees at the border. The United States is also a party to the Convention Against Torture, which prohibits governments from sending people to places where they would be in danger of being tortured, and to the International Covenant on Civil and Political Rights which prohibits the arbitrary detention of asylum seekers and migrants.  These treaties must be followed even during times when states are tempted to break them—in fact, that’s usually when they matter the most. Instead of turning away those seeking protection, the United States should allow them to be assessed through its asylum and protection processes.

Provisions that would increase the detention of asylum seekers comes as immigration detention is already at an all-time high, and many fleeing violence and persecution are already being detained for months or more in jails and facilities that resemble prisons. In a series of reports issued in 2016, Human Rights First documented the sharp escalation of detention of asylum seekers over the last few years (see: Lifeline on Lockdown, Detention of Asylum Seekers in New Jersey, Detention of Asylum Seekers in Georgia).

Studies have also shown that detention is not necessary to ensure appearance in immigration court. As of October 2016, 98 percent of represented mothers whose cases initiated in fiscal year 2014 were in compliance with their immigration court hearing obligations two years later.

Similarly, 98 percent of children in immigration proceedings whose cases initiated in 2014 and who had obtained counsel were in full compliance with their court appearance obligations as of October 2016. Eighty-six percent of cases completed in immigration court where the individual was initially detained and had been released after court custody review were in compliance up through the completion of their cases.