There has been widespread shock and dismay at the Trump administration’s policy of “zero tolerance” enforcement of criminal penalties for irregular border crossing—even against asylum-seekers—and its most extreme element, the separation of families and the incarceration of children. The criminalization of seeking asylum is unethical; the forced separation of families is abhorrent; and the intentional deployment of the suffering of children is especially vile. But it is also illegal under refugee and human rights law binding on the United States. And President Donald Trump’s new Executive Order does not fix the problem. Here’s why.

First, the administration’s efforts to criminally charge asylum-seekers for crossing the U.S. border irregularly is wrong under international law. The Refugee Convention and its Optional Protocol, which binds the United States, makes clear that treating those seeking asylum as criminals is unlawful—even if they enter irregularly. Such treatment flies in the face of the protective purpose of refugee law, which sought to prohibit expulsions like those that European Jews and other persecuted minorities experienced as they fled the Nazis—often without visas or holding forged passports—during World War II.

The UN High Commissioner for Refugees has urged states to recognize that “asylum-seekers are often forced to arrive at, or enter, a territory without prior authorization,” an act for which they should not be penalized. Under refugee law, the United States should provide everyone fleeing persecution or torture with a fair opportunity to make their claim for asylum or protection against deportation. Instead, Trump’s policy of “zero tolerance” has wreaked havoc on the right to seek asylum. As Human Rights First has reported, the Trump administration’s criminal enforcement processes were violating refugee rights even before “zero tolerance” was announced. This is because these prosecutions:

  • Entail group processes in which individuals often have only a moment or two to make their case;
  • Involve pressure to renounce the right to seek asylum altogether in exchange for avoiding jail time; and
  • Deprive asylum-seekers who serve time the opportunity to seek asylum, since officials often fail to refer those convicted of unlawful entry or unlawful presence to asylum proceedings once their sentences are completed.

These conditions have only grown worse in recent weeks, apparently in an effort to deter asylum-seekers from pursuing refuge and migrants from seeking opportunity in the United States. According to media reports, in some cases, asylum-seekers have been turned away by border patrol agents who have physically barred their entry or told them there is “no room” for them. Criminal prosecutions of asylum-seekers for border crossing are on the rise as a result of the “zero tolerance” policy. Defense attorneys report that they have less than 5 minutes to prepare their clients facing criminal penalties for border crossing and the Department of Defense has agreed to detail JAG lawyers to act as prosecutors along the border. And in an exceptionally cruel move, the Trump administration has been separating children from parents seeking asylum and placing the children—rendered unaccompanied through the criminalization of parents—in detention. This incarceration of children is a violation of refugee and human rights law.

Indeed, the disturbing separation of children from their families in this context may amount to torture. Under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which also legally binds the United States, torture includes any act by which severe mental pain or suffering is intentionally inflicted on a person for the purpose of intimidating or coercing him or a third person. Numerous administration officials have indicated that the forced separation of families was instituted, at least in part, to deter people from crossing the border. The forced separation of families undoubtedly causes immense anguish, both for parents and for children. Given officials’ comments, it is plain that the Trump administration is intentionally inflicting suffering to send a message to others who wish to seek safety or opportunity in the United States. Family separation also creates a de facto group of unaccompanied children, who are afforded robust protections under international human rights law precisely because of their extreme vulnerability. Indeed, the UN Committee on the Rights of the Child has recognized that such children “face greater risks of inter alia sexual exploitation and abuse, military recruitment, child labour.” The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has recently observed that ill-treatment can amount to torture if it is intentionally imposed “for the purpose of deterring, intimidating, or punishing migrants or their families, [or] coercing them into withdrawing their requests for asylum.” The traumatic separation of children from parents, and the subsequent and unnecessary creation of a group of highly vulnerable children, carried out for the purpose of deterrence contravenes the prohibition on torture.

Under international and domestic pressure, Trump issued an Executive Order (EO) yesterday,  cynically titled “Affording Congress an Opportunity to Address Family Separation.” After blaming Congress for the administration’s immigration policies, the EO announces a two-part policy to “rigorously enforce our immigration laws” and to “maintain family unity.” The former policy appears to be just a doubling down on the “zero tolerance” policy of prosecuting those who do not enter at a “designated port of entry at a designated time.” The latter policy, however, instead of restoring some semblance of morality by at least releasing incarcerated children, will be achieved by “detaining alien families together where appropriate and consistent with law and available resources.”

Detention, even with parents or guardians, can have profoundly damaging effects on a child’s psychological and physical well-being and development. Under the Convention on the Rights of the Child, in all actions concerning children, children have a right to have their best interests taken into account as a primary consideration, and they can only ever be detained as a measure of last resort and for the shortest possible period of time. Further, the UN Committee on the Rights of the Child has concluded that “[d]etention cannot be justified solely on the basis of the child[‘s] migratory or residence status, or lack thereof.” Indeed, the Special Rapporteur has observed that while detaining children as a measure of last resort may make sense in other contexts, such as juvenile criminal justice, this justification is not applicable in immigration proceedings, where it conflicts with the best interests of the child and the right to development. While the United States has not ratified the Convention on the Rights of the Child (the only member of the United Nations not to do so), it has signed the treaty, and thus must refrain from acts that defeat its object and purpose. Further, the UN Human Rights Committee has interpreted the International Covenant on Civil and Political Rights, which the United States has ratified, to require states to “take into account the principle of the best interests of the child” when implementing immigration law. Despite this broad consensus and the harmful impact of detention on children, it appears that the administration is already seeking a court’s permission to keep children detained with their families for longer than the 20 days currently permitted by the controlling caselaw—the Flores settlement.

While Trump believes that his new EO will “solve” the “problem”—a problem that he introduced through recent policies—his administration will continue to run afoul of refugee and human rights law unless and until it stops criminalizing refugees and ends the unjustified detention of children. Even then, President Trump must face the consequences of having inflicted the torture of separation and incarceration on thousands of children and their parents.

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