Punishing Refugees and Migrants: The Trump Administration's Misuse of Criminal Prosecutions

Publication date: 
January 2018
Punishing Refugees and Migrants: The Trump Administration's Misuse of Criminal Prosecutions

As the world continues to face the largest displacement crisis since World War II, President Trump’s first year in office has been marked by xenophobic, anti-immigrant rhetoric and increasingly punitive policies that effectively criminalize the act of seeking asylum. The Trump Administration is expanding prosecutions for unauthorized border crossing by targeting refugees legally seeking the protection of the United States. In so doing, it is violating both U.S. and international law.

On January 25, 2017, President Trump issued an executive order calling on the Department of Justice (DOJ) to make criminal prosecution of immigration offenses a “high priority”—even though such cases already made up more than half of all federal prosecutions nationwide. Then-Secretary of Homeland Security John Kelly then directed Customs and Border Protection (CBP) and other Department of Homeland Security (DHS) agencies to target people for offenses that included “illegal entry and reentry.” In April and May, Attorney General Jeff Sessions instructed federal prosecutors to make “immigration offenses higher priorities,” target “first-time improper entrants,” and “charge and pursue the most serious, readily provable offense” in all charging decisions.

These directives subvert U.S. treaty obligations that prohibit the penalization of refugees for unauthorized entry or presence—protections created in the wake of World War II after many nations treated refugees seeking asylum in their countries as “illegal” entrants. As a result, asylum seekers are subjected to a deeply dehumanizing system that punishes them for seeking protection and threatens to return them to countries where they will face persecution—a violation of the Refugee Convention.

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