Homeland Security secretary Kirstjen Nielsen has repeatedly said the Trump administration is required by law to detain and prosecute all immigrants entering the US illegally. She therefore has no choice, she says, but to separate parents and children during detention. But that’s not actually true—in fact, detaining asylum-seekers goes against both her agency’s own policy and international law.
The majority of people who are coming into the US through ports of entry are seeking asylum: Nearly 70% of border crossers intercepted by the US Border Patrol at the end of last year said they were afraid of torture or persecution back home, according to the Department of Homeland Security.
This is officially known as a credible fear claim. The agency’s own figures from October to December show that of the 21,000 or so credible fear cases it decided, 77% of claims were found legitimate.
Under US law, people who have been found to have credible fear have the right to make their case for asylum in immigration court. DHS has said they still have that right, but that process must happen while they are in detention, as the department prosecutes them for entering illegally.
That stance is at odds with with a 2009 Immigration and Customs Enforcement (ICE) policy, which says that asylum-seekers who are not at risk of flight and don’t pose a danger to society should be released on parole while their case unfolds. These are the instructions for Detention and Removal Operations (DRO,) according to that measure:
When an arriving alien found to have credible fear establishes to the satisfaction of DRO his or her identity and that he or she presents no flight risk nor danger to the community, DRO should, absent additional factors, parole the alien on the basis that his or her continued detention is not in the public interest.
Yet since Donald Trump took office, several ICE field offices have been denying parole to nearly all immigrants found to have credible fear, according to data obtained by several groups who are suing the government over the practice.
The ACLU, the Center for Gender and Refugee Studies at the University of California, Hastings, among others, filed a lawsuit against the administration earlier this year, arguing it’s violating the ICE directive.
They say that the government’s “blanket detention” of asylum-seekers also violates the Fifth Amendment’s due process clause, because it doesn’t consider each parole claim separately. That clause states that no person shall “be deprived of life, liberty, or property, without due process of law.”
Immigrant advocates say that holding immigrants eligible for parole diminishes their chances of making a solid case to stay; it’s more difficult to educate themselves about the process or get legal help. “If you subject someone to detention, it makes it far more difficult to pursue asylum,” said Greg Chen, director of government relations for the American Immigration Lawyers Association.
Trump’s 100% prosecution policy also appears to be in violation of international law. Under the United Nations Refugee Convention, asylum seekers can’t be penalized for entering a country illegally, according to James Hathaway, director of University of Michigan’s program in refugee and asylum law. This is what the Convention says:
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The UN statute also states that governments may only detain asylum seekers for short periods of time in order to vet their identity and assess security concerns. Holding them for deterrence purposes, says Hathaway, is illegal.