City Bar Calls on Attorney General and Secretary of Homeland Security to End Criminal Prosecution, Separation, and Detention of Families Seeking Asylum

In a letter to U.S. Attorney General Jeff Sessions and Secretary of the Department of Homeland Security Kirstjen Nielsen, the New York City Bar Association called on them to rescind their respective Departments’ publicly announced policies of referring for criminal prosecution all persons allegedly attempting or effecting entry into the United States other than at a designated port of entry, including those seeking asylum.

Calling for an end to the systematic criminal prosecutions that lead to family separation, the letter states, “Parents and children should not be separated in the absence of good cause and due process, and members of families apprehended while fleeing harm should be released together whenever feasible in order to pursue claims for asylum or other humanitarian relief.”

Noting that “criminal prosecution of asylum-seeking families shifts law enforcement resources away from safety and security priorities,” the letter decries the Trump Administration’s “zero tolerance” policy noting that, despite the Administration’s shifting public stances, “[w]hat is clear is that punishing families for seeking asylum violates U.S. law and human rights obligations.”  

Family unity is a fundamental Constitutional right, and these due process rights belong to the child as well as to the parents, the letter states.  Moreover, forcible separation of families violates U.S. obligations under customary international law and U.S. refugee law by impeding access to asylum and other forms of protection to which individuals have a right regardless of their point of entry: “[c]onsistent with international law, U.S. law expressly provides for the right to apply for asylum irrespective of whether entry to the U.S. was at a designated port of arrival.”

Additionally, the City Bar’s letter underscores the fact that family separation and family detention flout the “best interest of the child” standard, which has been incorporated into U.S. immigration law and policy. “All 50 states, the District of Columbia, and U.S. territories require consideration of a child’s best interests in decisions about the child’s custody, and likewise, the Convention on the Rights of the Child reflects virtually unanimous global consensus that ‘[i]n all actions concerning children … the best interests of the child shall be a primary consideration.’” Congress has incorporated the best interests of the child standard into multiple immigration law provisions respecting children.

Furthermore, “family separation and family detention traumatize children and cause long-term physical and emotional stress,” the letter adds. “Studies of detained immigrants have shown that children and parents may suffer negative physical and emotional symptoms from detention, including anxiety, depression and posttraumatic stress disorder.” Additionally, the letter states that family separation is not a deterrent to improper entry and further endangers victims of human trafficking and persecution. “Separating and detaining families as a deterrence measure will have little effect on those for whom refugee law and anti-trafficking measures are designed:  adults and children fleeing the risk of death or severe harm or human rights abuses, in hope of life-saving protection. Instead, family separation prolongs the state of risk, vulnerability, and uncertainty for adults and children.”

The letter concludes, “We urge you to replace the ‘zero tolerance’ policy of criminally prosecuting those seeking asylum in the United States with a renewed commitment to U.S. and international law on the rights of asylum seekers. Further, we ask you to reunite all forcibly separated families, and refrain from separating additional families; and to release families to pursue claims for asylum and other humanitarian protections, in line with U.S. human rights obligations and customary international law, our country’s core values, and proud, long-standing tradition of offering refuge.”

Read the letter here.

About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 24,000 members, is to equip and mobilize the legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org