Trump Executive Order Fails to End Abuses at U.S. Border

U.S. President Donald Trump issued an executive order (EO) on June 20, entitled “Affording Congress an Opportunity to Address Family Separation.” In that executive order, the president announced an intention to alter the policy of separating adult asylum seekers from their children by incarcerating adults and children together while the adults are undergoing criminal prosecution.

Refugees International appreciates that the president has recognized that his abusive practice of separating families was not sustainable. But RI is deeply concerned that the president’s actions on June 20 did not immediately end this abhorrent practice, and that the president is intent on continuing to prosecute and incarcerate those fleeing violence and persecution. RI remains concerned that the president seeks to replace a family separation policy with a family detention policy.

“RI remains concerned that the president seeks to replace a family separation policy with a family detention policy.”

Eric Schwartz, president, Refugees International

Refugees International outlines in detail three sets of objections to the president’s actions:

First, and most importantly, the executive order fails to end immediately ongoing abuses of human rights of children. The Trump administration must cease such abuses without delay.

In its rhetoric and its issuance of the Executive Order, “Affording Congress an Opportunity to Address Family Separation,” the Trump administration has sought to promote two misconceptions. The first misconception is that family separation has been an unfortunate reality that requires a congressional solution over the long term. The second is that, pending action by Congress, an executive order must be put in place to alter family separation policy.

Neither of these notions are true. To be clear, there is no law or policy that has mandated family separation. The family separation policy was a discretionary action by President Trump to deter would-be asylum seekers. The president could have simply picked up the phone and told Attorney General Jeff Sessions to stop the practice.

“To be clear, there is no law or policy that has mandated family separation. The family separation policy was a discretionary action by President Trump to deter would-be asylum seekers.”

Eric Schwartz, president, Refugees International

Furthermore, Refugees International believes that the new executive order could continue to perpetrate serious abuses of human rights against children. These include measures which could reasonably be expected to result in their serious emotional and psychological damage.

In particular, the executive order does not call for the reunification of some 2,300 children who have already been separated from their families by the president’s zero tolerance policy. The fate of these children remains unclear. It is also very unclear whether President Trump will end child separation unless or until a U.S. district court decides in favor of the administration’s request to modify the Flores Settlement. This is the 1997 court decision that put strict limitations on the length of time a child can be kept in immigration detention.

In light of the ongoing abuses under the family separation policy, President Trump must not wait to alter policy. It is critical that the thousands of children who have already been separated from their parents be reunited with them immediately, and that all such family separations cease at once.  

Moreover, while accountability for abuses may be an issue for another day, Refugees International believes that these actions of the Trump administration must not only be ended immediately, but must be subjected to independent review due to their obvious and foreseeable consequences on very vulnerable children.

Second, the EO’s commitment to the criminalization of asylum is in stark violation of basic humanitarian principles, in violation of legal commitments made by the United States, and runs counter to U.S. efforts to press other governments around the world to treat asylum seekers with decency.

The EO expresses the intention of the Trump administration to prosecute all asylum seekers who enter the United Stated without authorization.

This position is both cruel and unnecessary. It also violates U.S. obligations under the Convention Relating to the Status of Refugees and its 1967 Protocol, to which the United States acceded during the administration of Lyndon Johnson. Under Article 31 of the Convention, parties “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…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.”

This provision is all the more important in light of the fact that asylum seekers and their families are simply unable to promptly request asylum at ports of entry on the U.S.-Mexican border due to inadequate U.S. processing capacity. Furthermore, asylum seekers and their families have to wait many days and nights in the border area in extraordinarily difficult conditions. Under such circumstances, those who make the decision to cross the border without authorization should be treated in accordance with – and within the spirit of – Article 31 of the Refugee Convention.

Finally, the President Trump’s approach stands in sharp contrast to the efforts of U.S. officials around the world who encourage other governments not to punish and incarcerate asylum seekers for crossing borders without authorization. From Bangladesh and Kenya to Jordan and Turkey, senior U.S. representatives have effectively argued that asylum seekers often have good reason to cross borders at locations other than points of entry, and must be treated with compassion. In fact, the president himself recently expressed deep gratitude to the government of Bangladesh for its humanitarian leadership in providing refuge to hundreds of thousands of asylum seekers who crossed the Myanmar-Bangladesh border without authorization.

In the area of the U.S. border with Mexico, there are certainly workable – not to mention less costly – alternatives to detention and to draconian policies of criminalization and incarceration of those seeking asylum. These include recognizance, parole, bond, or orders of supervision. And as the National Immigrant Justice Center and others have reported, such alternatives can be highly effective and make great sense – as long as the United States is prepared to rely on evidence, rather than fear and ignorance, in policymaking.

Third, if the EO is actually implemented, the intention to continue to criminalize asylum makes it likely that children will be detained for long periods, in violation of their rights and their well-being.

Section 3 of the EO makes clear that the president’s intention is to detain immigrant children with their parents. We have already noted that criminal prosecution and incarceration of asylum seekers solely due to unauthorized entry is in violation of U.S. commitments under the Refugee Convention and its Protocol. Beyond that, however, detention of children is both unnecessary and cruel. We further note that, in September 2016 at the UN’s New York Summit on Refugees and Migrants, the United States and governments of the world unanimously endorsed the proposition that “detention for the purposes of determining migration status is seldom, if ever, in the best interest of the child.” They further agreed to “use it only as a measure of last resort, in the least restrictive setting, for the shortest possible period of time,” and to “work towards the ending of this practice.”

Those sentiments are entirely reasonable and should guide the actions of the Trump administration.

Eric Schwartz is the former U.S. assistant secretary of state for Population, Refugees, and Migration, the former UN deputy special envoy for Tsunami Recovery, the former special assistant to the president for National Security Affairs, and the former dean of the Humphrey School of Public Affairs, University of Minnesota.