Executive Orders Undermine Access to Protection for U.S. Asylum Seekers

Human Rights First condemned an executive order signed by President Trump that appears aimed at blocking access to asylum for refugees at the border and would lead more asylum seekers to be held in U.S. immigration detention for months or longer.

“Today’s executive order undermines U.S. global leadership on refugee protection and human rights, and will lead even more asylum seekers to be held in U.S. immigration detention facilities and jails for even longer,” said Human Rights First’s Eleanor Acer. “The United States has the ability and the capacity to both protect refugees—in this case those fleeing violence and persecution in Central America—while also effectively managing its border. We should be setting a shining example to other countries by managing this challenge in ways that comply with U.S. human rights and refugee protection treaty commitments.”

While the executive order is unclear in a number of places, it appears to be aimed at:

• Turning away individuals seeking asylum at the U.S. Southern border in violation of U.S. treaty commitments and contrary to congressional intent to comply with U.S. treaty commitments and fairly processing requests for asylum;
• A massive escalation in the detention of asylum seekers in ways that violate U.S. treaty commitments and will lead to prolonged detention of many more asylum seekers;
• Potentially rushing asylum and protection adjudications in ways that will undermine fairness and/or deny protection to legitimate asylum seekers whom Congress intended to protect; and
• A range of other steps that appear aimed at undermining fair processing.

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.

The order comes as immigration detention is already at an all-time high, and asylum seekers 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).

Women and children held in immigration detention facilities—even for short periods of time—suffer serious adverse mental and physical health effects. Detention exacerbates the trauma many asylum seekers have fled. Detention has been deeply criticized by a wide array of voices, including the American Academy of Pediatrics, the American Bar Association, 178 members of the House of Representatives and 35 senators, the Inter-American Commission on Human Rights, and numerous faith groups.

“The use of immigration detention has already hit an all-time high. Many refugees seeking asylum are languishing in U.S. jails and detention facilities for months or longer—this order appears aimed at making already harsh policies even harsher,” noted Acer.

While today’s executive order mentions fraud in the asylum system, the asylum system is already equipped with numerous safeguards to identify and prevent fraud. U.S. agencies conduct multiple identity and background checks, have personnel in multiple agencies charged with detecting and investigating fraud, and have the ability to refer for prosecution individuals who perpetrate and orchestrate fraud.