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People fleeing persecution have the right to seek asylum

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Prosecutions of asylum seekers for so-called ‘‘illegal entry’’ must be stopped immediately. Prosecuting people fleeing for their lives simply for entering the country without documents is not only against the law, it is costly and impractical, and is against American values of acceptance and respect for the family.

Between May 6 and May 19 Customs and Border Patrol (CBP) forcibly separated 658 children from their parents in order to prosecute their parents for illegal entry under the administration’s April 6 ‘‘zero-tolerance policy’’ (overall prosecutions jumped 30 percent between March and April). While their parents remained in criminal custody, the children were transferred alone to an unaccompanied minor shelter run by the Office of Refugee Resettlement (ORR).

{mosads}Previous administrations have correctly not prosecuted asylum seekers for illegal entry. Doing so is a violation of domestic asylum law as well as international human rights law because asylum seekers have the legal right to seek asylum.


Domestic law is grounded in widely-accepted international standards, starting with Article 14 of the 1948 Universal Declaration of Human Rights and Article 27 of the 1948 American Declaration of the Rights and Duties of Man, and continuing with the 1951 U.N. Convention Relating to the Status of Refugees.

As stated by the U.N. High Commissioner for Refugees ‘‘refugees should not be penalized for their illegal entry or stay… the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.’’

Under 8 U.S.C. §1325, anyone who enters the country at an ‘‘[i]mproper time or place’’ can be sentenced to six months in jail and a fine of up to $250 (repeat offenders can be jailed for up to two years and fined up to $500).

There is a bona fide argument that entering the U.S. without documents to seek asylum is never entering at an improper time or place — especially considering that CBP has been turning asylum seekers away at the bridge so many people have no other option but to cross without documents. To the extent that the illegal entry statute may conflict with our asylum law, the asylum law trumps the illegal entry statute due both to its long-standing and widespread acceptance, and that the illegal entry statute was never intended to prevent people from seeking asylum.

In addition to separating and prosecuting parents for illegal entry, the administration is also putting the family under attack by charging parents with smuggling of their children under 8 U.S. Code § 1324. On May 7 Attorney General stated “If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law. If you don’t like that, then don’t smuggle children over our border.” He fails to understand that many families fleeing persecution don’t have a choice but to seek protection in the U.S.

Although the federal smuggling statute does not carve out an exception for bringing children to the U.S. the intent of Congress in passing the law was to prosecute human traffickers and criminals, not parents looking for a safe life for their children. Previous administrations understood this and exercised discretion appropriately.

The administration is trying whatever it can to impermissibly prevent asylum seekers from claiming protection, including forcing families apart. The White House chief of staff has publicly said that increasing family separation would be a tough ‘‘deterrent’’ for asylum seekers. Even if this were true — and no data supports this claim (in fact numbers of asylum seekers have recently gone up) — separating asylum seeking families only creates more problems.

Prosecuting asylum seekers for illegal entry has exponentially increased family separation, although separating children from their parents is not new. Between October 2017 and April 30, 2018 ORR contacted DHS in an attempt to locate parents who had been forcibly separated from their children in 700 cases, including over 100 children under the age of four. As I have previously argued, separating families when there are no allegations of abuse or neglect is not only inhumane, unnecessary, and costly, it is unconstitutional.

Forcibly taking children without letting the parents know where their children are being held and if they are ok, and not telling the children what is happening, is one of the most disturbing aspects of this policy and legally constitutes enforced disappearance and torture under both domestic and international law. Family separation also often occurs without notice — with the exception that the threat of family separation is also being used as a tactic at the bridge to dissuade people from asking for asylum — and families have no opportunity to challenge the separation before an independent judicial body.

I have worked with many asylum seekers who have been forcibly separated from their children and it is always traumatic. For children, the American Academy of Pediatrics has concluded that “highly stressful experiences, like family separation, can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her short- and long-term health. This type of prolonged exposure to serious stress — known as toxic stress — can carry lifelong consequences for children.”

As of May 30, 2018 there was a 22 percent increase in children held at ORR shelters (10,852 up from 8,886 the previous month). The 100 shelters, located in 14 states, are now 95 percent full. This has placed a burden on the shelter case workers. Children are now staying detained for 56 days, up from 51 days, before they are released to a sponsor.

Parents are usually the best caregivers and separating families is a violation of both parental rights and children’s rights. If the government were truly concerned about children ending up in the wrong hands, it would not be separating them from their parents.

Family separation is illegal and inhumane. It is costly and unnecessary. Forcing families apart, and prosecuting parents, to deter asylum seekers must stop immediately.

Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization

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