CHC to Sessions: Zero-Tolerance Policy Traumatizes Migrants, Contrary to American Values
Castro Leads CHC Meeting Request with Attorney General
WASHINGTON—Congressman Joaquin Castro (TX-20), a member of the House Foreign Affairs Committee and House Permanent Select Committee on Intelligence, and First Vice Chair of the Congressional Hispanic Caucus, led the Congressional Hispanic Caucus in requesting a meeting with Department of Justice Attorney General Jeff Sessions on the “zero-tolerance” immigration policy that seeks to prosecute all immigrants who cross the border.
“This reprehensible policy has also cruelly separated immigrant children from their parents—traumatizing and harming the most vulnerable who come to our borders for protection—in the name of deterrence and punishment. Though the President signed an executive order entitled Affording Congress an Opportunity to Address Family Separation on June 20, 2018, ostensibly directing that immigrant parents and children remain detained together for the pendency of criminal and immigration proceedings, the President did not revoke the zero tolerance policy,” the Members wrote.
The Members continued: “The terrible practice of punishing people for seeking refuge in our country is contrary to our American values and our legal duties. The Department of Justice should revoke its zero tolerance policy and immediately stop the prosecution of asylum seekers. We request to meet with you at your earliest convenience to discuss this policy further. Every day that this policy remains in effect, it perpetuates damaging trauma to children and parents.”
The letter was also signed by Congressional Hispanic Caucus Chair Michelle Lujan Grisham (NM-01); Second Vice Chair Rep. Ruben Gallego (AZ-07); Whip Rep. Pete Aguilar (CA-31); Freshman Representative Adriano Espaillat (NY-13); Congressman Luis Gutiérrez (IL-04); Congressman Darren Soto (FL-09); Congressman Raúl M. Grijalva (AZ-03); Congressman Salud O. Carbajal (CA-24); Congressman Raul Ruiz (CA-36); Congressman Nanette Diaz Barragán (CA-44); Congressman Linda T. Sánchez (CA-38); Congressman Albio Sires (NJ-08); Congressman J. Luis Correa (CA-46); Congressman Ben Ray Luján (NM-03); Congresswoman Grace F. Napolitano (CA-32); Congressman Lucille Roybal-Allard (CA-40); Congressman Juan Vargas (CA-51); Congresswoman Norma J. Torres (CA-35); and Congressman Tony Cárdenas (CA-29).
Full text of the letter follows and can be viewed here.
July 24, 2018
The Honorable Jefferson Sessions
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Dear Attorney General Sessions,
We write to share our deep concerns with the Department of Justice’s (DOJ) “zero-tolerance policy” that aims to prosecute all immigrants who cross the border, including individuals seeking asylum in the United States. This practice neglects our government’s duties under international law, undermines our nation’s asylum laws, overburdens our immigration and criminal justice systems, and makes local communities less safe. This reprehensible policy has also cruelly separated immigrant children from their parents—traumatizing and harming the most vulnerable who come to our borders for protection—in the name of deterrence and punishment. Though the President signed an executive order entitled Affording Congress an Opportunity to Address Family Separation on June 20, 2018, ostensibly directing that immigrant parents and children remain detained together for the pendency of criminal and immigration proceedings, the President did not revoke the zero tolerance policy. For the reasons stated below, this policy is unacceptable and we ask for a meeting with you to discuss reversing this policy immediately.
The Policy in Practice
In April, your office directed all federal prosecutors along the Southwest border to implement a zero-tolerance policy for prosecuting offenses under 8 U.S.C. § 1325(a), improper entry and attempted improper entry, because, according to an internal memo, it is “the ‘most effective’ way to tamp down illegal border crossings.” To enforce this policy, this administration has forcibly separated families, including asylum seekers, who lawfully present themselves at our border.
For example, the Washington Post reported that U.S. Customs and Border Protection separated Mr. Arnovis Guidos Portillo from his six year old daughter, Meybelin, and deported him back to El Salvador without her. They arrived in the United States on May 26 seeking asylum but were promptly separated. He was prosecuted and sentenced to time served. Rather than being reunited with Meybelin, officials told him that he would not be able to obtain information about his daughter’s whereabouts in the U.S. and that it would be better if he returned home. He was deported and to this day remains separated from her.
The Policy Fails to Comport with the Law
U.S. immigration law provides two ways in which people fleeing persecution may seek asylum.However, by prosecuting those who seek it, the United States hampers their ability to avail themselves of the process for claiming asylum and may even dissuade them from accessing this process, which could have deadly results. This thwarts the intent of Congress to protect the most vulnerable refugees coming to our country. Furthermore, it violates our obligation under international law. Article 31(1) of the Refugee Convention, which the United States ratified, protects asylum seekers from punishment. Yet by prosecuting each and every person who enters the U.S. without status, including asylum seekers, our government is doing precisely that. And by separating asylum seekers from their families, it imposes an additional punishment. The Department of Homeland Security’s Office of Inspector General questioned the legality of prosecuting asylees when it analyzed Operation Streamline, a similar zero tolerance program with a more limited geographic reach, in 2015. It questioned whether the practice comported with the U.S.’s international obligations. However, instead of heeding its own report, such prosecutions are now being implemented on an even broader basis.
The Policy Overburdens Our Criminal Justice and Immigration Systems While Making Local Communities Less Safe
The policy further strains the criminal justice process in southwest border areas. Every department and all personnel touching criminal prosecutions in southwest federal district courts—U.S. Attorneys’ Offices, Federal Defender Offices, and court personnel—will feel the strain. Such was the case with Operation Streamline: the increased illegal entry and illegal re-entry prosecutions burdened judges, prosecutors, public defenders and court personnel in the five (out of 94) federal courthouses which ended up handling 41% of the nation’s criminal cases as a result of these increased prosecutions. The increased resources sent to the jurisdictions in which Operation Streamline was in place did not help alleviate the burden. Similarly, the 35 Assistant U.S. Attorneys and the 18 immigration judges you dispatched to alleviate the increased caseload the zero tolerance policy has produced is not sufficient to diminish the burden.
These prosecutions also make local communities less safe by siphoning resources needed to investigate and pursue actual threats to public safety in each community. For example, in areas where Operation Streamline was implemented, the rate of weapons prosecutions declined by 15%. Prosecuting all persons for illegal entry, even those without any criminal records and those seeking asylum, strips the judicial system of its ability to respond to real threats, like drug and human trafficking.
The Policy Negatively Impacts Vulnerable Children and Wastes Taxpayer Money
Not only does this practice violate the law and negatively impact our immigration and criminal justice systems, it raises concerns for the well-being of children, despite the President’s recent executive order. The executive order makes clear that families will be detained together during the pendency of criminal and immigration proceedings. While ceasing the separation of families eliminates the most egregious trauma our country inflicted on immigrant children, family detention is not the answer. Detention in and of itself harms children. The American Academy of Pediatrics explains that: “[t]he act of detention or incarceration itself is associated with poorer health outcomes, higher rates of psychological distress, and suicidality making the situation for already vulnerable women and children even worse.” Furthermore, detaining families is extraordinarily expensive, costing approximately $108,000 per person per year.
There are far less costly and healthier settings for these children and families. The Family Case Management Program (FCMP), for example, was an initiative that began in 2016 to release asylum seekers from detention while they awaited their cases to be heard. The results were hugely successful. The FCMP costs less than detention, enjoyed high rates of compliance, and treated family units humanely. To the extent families are detained to ensure appearance in court, there are far more cost effective methods our government can use, costing cents per day, that are equally as effective and do not inflict psychological harm on children.
The Department of Justice Must Halt This Misguided Policy
The terrible practice of punishing people for seeking refuge in our country is contrary to our American values and our legal duties. The Department of Justice should revoke its zero tolerance policy and immediately stop the prosecution of asylum seekers. We request to meet with you at your earliest convenience to discuss this policy further. Every day that this policy remains in effect, it perpetuates damaging trauma to children and parents. We look forward to hearing from you soon.
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