Statement to US Congress on Trump administration's border policies

Written Statement of Human Rights Watch to

The United States Senate,

Committee on the Judiciary

Subcommittee on Border Security and Immigration

“Building America’s Trust Through Border Security: Progress on the Southern Border”

May 23, 2017

Chairman Cornyn, Ranking Member Durbin, members of the Subcommittee, thank you for the opportunity to submit the following statement.

In assessing the situation at the border and the potential impact of this administration’s policies, we urge you to consider the extent to they will exacerbate harm that results from inappropriate discretionary actions and systemic failings by the Department of Homeland Security and its subagencies.

The Trump administration, in executive orders and memoranda, has made clear it plans to: 1) prioritize federal immigration prosecutions; 2) expand the use of fast-track deportation procedures, called “expedited removal”; and 3) hire more border agents. We address each of these proposals below.

First, prosecutions of unauthorized border crossers already make up more than half of all federal criminal prosecutions. Federal authorities prosecute more people for crossing the border than they do for drug trafficking, murder, rape, and embezzlement combined.

Despite the tremendous expenditure of law enforcement resources, there is little evidence such immigration prosecutions have a deterrent effect, especially as many people are motivated to enter the US to reunite with US citizen children or flee violence and persecution.[1] A 2015 report by the Department of Homeland Security Office of Inspector General found US Customs and Border Protection’s data did not actually prove prosecution reduced recidivism.[2] That same report also found Border Patrol agents in some regions often refer migrants claiming fear of harm in their home countries for criminal prosecution.[3] Such prosecutions violate migrants’ rights to seek asylum, in contravention of US treaty obligations.[4]

Increasing these prosecutions with little regard for whether they accomplish what they purport to achieve would result in more prosecutions that are both wasteful and inhumane. Some former US Attorneys have pointed out such prioritization will divert resources from actual threats, like terrorism, cybercrime, and drug cartels.[5]

Second, enforcing US laws at the border also means enforcing US and international law meant to protect asylum-seekers and refugees. Human Rights Watch and other groups have documented cases in which Border Patrol officers have failed to follow US law, which requires them to refer anyone who expresses fear of going back – no matter the reason – to an interview with a trained asylum officer. Human Rights Watch and other organizations have documented how some Border Patrol agents regularly fail to record asylum-seekers’ claims of fear and their intention to apply for asylum.[6] Such actions risk people being sent back to persecution and even death. The US should be a leader in protecting the right to seek asylum, rather than seeking to deny access to it.

The failure to uphold US treaty obligations to refugees is exacerbated by fast-track deportation procedures at the border, called expedited removal, which allow Border Patrol agents to order someone deported by filling out and signing some forms, a far cry from the careful consideration of claims that an immigration judge can provide. With the signature of a single Border Patrol agent and their supervisor, an expedited removal can send someone fleeing domestic violence back into the trap of her abuser, an LGBT person back to persecution, or a family back to the drug cartel that has threatened them with death.

There is probably no other area in US law in which a law enforcement officer can make such a life-or-death determination without the person affected by that decision having legal representation and oversight by courts. Currently, border agents can only use expedited removal on someone apprehended within 100 miles of the border and for up to 14 days after arrival in the US. The Trump administration has said that it plans to expand the use of expedited removal to the entire US for anyone who cannot prove they have been in the US for at least two years.

Finally, we would like to emphasize the strong need for measures that would hold border agents accountable, which should be in place before any consideration is given to funding an increase in the number of Customs and Border Patrol agents. In addition to CBP agents’ failure to follow US and international refugee law, CBP’s policies and practices around the use of deadly force have been severely criticized, not only by advocacy groups, but also by the Police Executive Research Forum, in an internal CBP-commissioned report, which stated, “Too many cases do not appear to meet the test of objective reasonableness with regard to the use of deadly force.”[7] The report further found CBP’s disciplinary system is inadequate and takes far too long to be an effective deterrent to misconduct.

President Trump, from his campaign to the early days of his administration, has repeatedly proclaimed the need for a border wall, in addition to the dangerous proposals outlined above. His focus on a new wall is a dangerous distraction that hides the ugly truth that his policies offer no new solutions. They just double down on the failed approaches of the past, which have broken families, facilitated abuse, and made the United States less safe, while ignoring steps to reform US immigration policy that could be wins for all involved.

This Subcommittee and Congress can and should ensure proper oversight over border security policies, protect the right to seek asylum, uphold due process at the border, and hold border agents accountable for misconduct.

Thank you.