By Barbara Franz
U.S. Customs and Border Protection (CBP) agents are systematically violating U.S. and international law by blocking refugees at international ports of entry on the southern border from entering the country so they can claim asylum.
The Intercept has reported that civil rights advocates have been documenting this illegal behavior since late 2016, from Texas to California.
Initially a sporadic pattern, it recently has become a routine practice.
Yet aliens within the U.S. who tell immigration officials they are afraid to return to their countries have the right to request asylum, according to national legislation such as the Immigration and Nationality Act, as well as international law to which we are a party.
As a signatory of the 1948 Declaration of Human Rights, the United States agreed that people have a right to seek and to enjoy in other countries asylum from persecution, as set forth in Article 14 of the declaration.
TREATIES AND NON-REFOULEMENT
The states that signed this treaty did not commit to taking in refugees, and the documents do not guarantee asylum for the refugees fleeing violence. The guarantee that is spelled out in these legal texts is often summarized as the principle of non-refoulement.
Refoulement, a French term, is the forcing back of people to their place of origin where they are expected to face persecution or threats to life and liberty on the basis of race, religion, nationality, political opinion or membership of a particular social group.
In 1951, the principle of non-refoulement was adopted in Article 33 of the Convention Relating to the Status of Refugees. The U.S., a signatory of the 1967 Protocol to the 1951 Convention, made the commitment to not return refugees across the borders to their countries of origin.
This provision has served both as a model and textual basis for many subsequent human rights treaties that have incorporated the principle of non-refoulement.
In spite of the United States’s agreement in these international treaties to do otherwise, refoulement is exactly what the CBP is practicing right now: The rejection of asylum seekers at the southern border. This is a clear breach of international humanitarian law and represents serious human rights violations.
The turn back practice has been ongoing. As early as 18 months ago, in early January 2017, the American Civil Liberties Union and seven other organizations asked the US Department of Homeland Security to investigate the “systematic denial of entry to asylum seekers” along the U.S.-Mexico border.”
In addition to violating international humanitarian law, the administration’s “zero tolerance” policy, until recently best exemplified through the family separation practice, is also very likely unlawful.
The American Immigration Council filed a lawsuit last year challenging alleged efforts by the CBP in California to prevent asylum seekers from applying.
The administration is moving to designate Mexico a safe country despite the fact that refugees face acute risks of kidnapping, disappearance, sexual assault and trafficking there.
Although one may hope that after the election of Andres Manuel Lopez Obrador, these patterns will change, until then the protection of persecuted individuals needs to be defended with vigilance.
Under certain circumstances, Mexico might repatriate refugees to their countries of origin, for example, to El Salvador or other states of the Northern Triangle.
These individuals most likely will be exposed to more violence, sexual assault and, for some, violent death.
Declaring Mexico a safe third country will allow the administration to return all those refugees who wish to apply for asylum in the U.S., who had to travel through Mexico to reach American territory. These U.S. practices will not result in the vindication of refoulement but bring more suffering to refugees.
‘ZERO TOLERANCE’ = ZERO COMPASSION
To be clear, to present oneself at a port of entry does not constitute a crime. The entrant can pursue her asylum claim in civil immigration courts. However, when the port option is physically denied, and she is forced to seek asylum by means of illegal entry, she might be arrested.
Illegal entry now is prosecuted as a criminal charge, as the Attorney General recently ordered in all cases.
Systematically blocking asylum seekers from entering U.S. ports of entry is part of Jeff Sessions’ inhumane “zero tolerance” policy and it casts its web too far.
Instead of keeping out only undesired immigrants, it also blocks access to our territory for refugees. And this is illegal. The turn back practice is an important part of current efforts to deny people legal access to asylum or to punish them for claiming it, particularly at the US-Mexican border.
It pits humanitarian concerns against enforcement, and goes hand in hand with the current anti-immigrant sentiment of American conservatives who imagine an immigration crisis at our borders, contrary to the factual evidence that border apprehensions are a historic low.
Turning back refugees also re-emphasizes the Republican Party’s white nationalism, which clearly is a reflection of anxiety around the fact that the U.S. is becoming a majority-minority country with an associated loss of white privilege and power.
This is turning immigration into an existential question (for white Americans). Resisting the Republican administration’s immigration policy and its inhumane enforcement should indeed become the civil rights struggle of our time.
Barbara Franz, Ph.D., is a political science professor at Rider University, and a Morristown resident.
Editor’s note: The opinions expressed above are the author’s, and do not necessarily reflect those of this publication.