“Zero-Tolerance” Policy, in Tearing Families Apart, is Inhumane and Illegal

As Father’s Day approaches, I keep thinking about one father in particular from Guatemala who is over 2,000 miles away from his 8-year-old daughter. Last week, that little girl told me about the day she was torn from her father’s arms at the border. In tears, they begged the Border Patrol officer to let them stay together.  Months later this little girl, now in the custody of a caregiver, cries herself to sleep, worries constantly about her family, and feels helpless.

I am an immigration attorney who helps people apply for asylum in the United States. But when this little girl came to me, it was to ask me how fast I could help her get deported so she could return to her family.

This is exactly what the Trump administration seeks to achieve in tearing apart families at the border and criminally prosecuting “100 percent” of undocumented border crossers. According to Attorney General Sessions’ recent comments, the intent is to deter asylum seekers from pursuing protections to which they are entitled under U.S. law.  This “zero-tolerance” policy not only is inhumane, it is illegal. U.S. law and international treaty obligations both guarantee the right to seek asylum.

Many of our nation’s founders came to this country seeking refuge, to worship their God and express their political beliefs without fear of repression by their government or society. In that spirit, Congress enacted a pathway to protection for those who could demonstrate that they faced persecution in their home country because of a fundamental aspect of their identity, such as their race, religion, ethnicity, political opinion, or other characteristics. Recognizing that many fleeing for their lives may be forced to leave home before they can obtain a visa, U.S. asylum law explicitly states that a person who “arrives” at our borders “whether or not at a designated a port of arrival … may apply for asylum.”

Asylum is not just a reflection of our nation’s most fundamental values—it is also a reflection of the priorities of the international community. The right to asylum was established in the late 1940’s following the Holocaust. The member states of the United Nations, with the explicit leadership of the United States, created formal protocols to protect refugees.

Given the rhetoric, it might surprise people to learn that asylum seekers face enormous legal obstacles to protection. The majority of claims are denied (even before Attorney General Jeff Sessions overturned years of asylum case law for victims of domestic violence this week).

According to Sessions, the administration’s “zero tolerance” policy means that every undocumented border crosser will be criminally prosecuted and that parents bringing their children to the U.S. to protect them from death threats will be prosecuted for smuggling.

This “zero tolerance” violates the fundamental right, enshrined in international treaty and codified in our own U.S. law, to seek asylum from persecution. It violates the right to family integrity, recognized by the U.S. Supreme Court as a fundamental liberty interest. (See e.g. Supreme Court case Troxville v. Granville). It violates the right to due process of law.

To punish asylum seekers by taking away their children is exceptionally cruel. It’s also inefficient, creating duplication in a system already plagued by backlogs by requiring asylum seekers whose claims could otherwise by addressed together (parents and children) to present their factually identical claims in different immigration courts across the country.

Children like my bright little 8-year-old client, as well as their fathers and mothers, deserve our most zealous efforts to protect them from these cruel and illegal policies which purposefully deprive them of the right to seek and obtain asylum.  Many studies show that the majority of those presenting themselves at the Southern border have legitimate claims for humanitarian protection under international law.  Americans of all backgrounds must understand that these policies are not only inhumane, they are illegal.

As Father’s Day approaches, please stand with these families. For those whose ancestors came to the US as refugees, as asylum seekers, remember how your own family members made their journey to this country and the American welcome you would have wanted your family member to have.  Show our leaders that Americans believe that separating parents from their children at the border is illegal. Tell our leaders that you believe in the right to seek asylum.

Now is the time to come forward and stand in real solidarity with impacted immigrant communities. Please support organizations that represent these families and children on the border and when released, like The Advocates for Human Rights, the CARA Pro Bono Project  and the Migrant Center for Human Rights.  If you’re a legal professional or speak a second language, get involved with helping a child or family seeking asylum. Follow our blog for updates on advocating for separated families. Contact us and other local organizations that work with immigrants to learn how you can most effectively support your local immigrant communities in this time where their fundamental rights are under attack.

Alison Griffith is a Staff Attorney for The Advocates for Human Rights’ Refugee & Immigrant Program.

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