Criminal prosecutions at the border violate international law

In the ashes of World War II, the international community came together to create a response to the refugee crisis created by persecution, war and genocide. Remembering the visa barriers and other immigration control measures that prevented refugees from escaping Nazi Germany, the 1951 Refugee Treaty set forth clear obligations on nations where refugees flee to seek safe haven.

The treaty defines refugees as people with a well-founded fear of persecution and requires nations to refrain from returning refugees to lands where their lives or freedom are threatened.

{mosads}Recognizing that refugees often must flee their homelands on short notice without obtaining travel documents, the Refugee Treaty forbids countries from imposing penalties on refugees on account of illegal entry so long as they present themselves promptly to authorities and show good cause for their unauthorized entry. 

More than 145 nations have also ratified the treaty, making it one of the most important human rights treaties in effect. With the shameful memory still alive of U.S. officials refusing to allow German refugees to disembark from the St. Louis because they lacked immigration visas, the United States also ratified the international refugee treaty and agreed to its provisions.

Therefore, it is absolutely clear that international law protects people who enter the U.S. without papers, if they promptly go to Border Patrol officers and ask for asylum. Prosecuting individuals at the southern border for illegal entry violates the international laws that the United States expressly adopted and agree to uphold.

These criminal prosecutions violate U.S. law also. Title 8 of the U.S. Code states that all non-citizens who arrive in the U.S. (whether or not at a designated port of arrival, including people stopped in international waters before getting to the U.S.) have a right to apply for asylum, irrespective of the non-citizen’s status. 

This means that whether they have a visa or not, whether they entered at a regular border crossing or not, whether they entered surreptitiously or not, they have a right to apply for asylum.

A related statute, 8 U.S.C. 1231(b)(3), states that the U.S. cannot remove non-citizens to a country where their lives or freedom would be threatened. If U.S. officials prosecute individuals or turn people away who want to apply for asylum — without giving them a hearing to see if they qualify for asylum —  they are violating two U. S. statutes: the right to an asylum hearing and the obligation not to return people to countries where their lives or freedom would be threatened. Simultaneously, they are violating international refugee law.

Nations have the right to control their borders and to impose immigration measures. But both U.S. law and international law recognize that refugee situations involve great peril and require nations to allow human beings — however they crossed the border — to demonstrate that they have a well-founded fear of persecution and that their lives or freedom would be threatened if deported.

The United States must live up to its moral and legal obligations. It must not forget the past nor stain the future.

Maryellen Fullerton is professor of law at Brooklyn Law School. She is an expert on asylum and refugee law, with years of experience conducting research and working in Europe. She has been a consultant for the United Nations High Commissioner for Refugees, and has been active in projects providing support to Refugee Law Clinics in Eastern Europe. Twice she has received Fulbright awards, and she has served as distinguished chair in law at the University of Trento in Italy. A prolific author, she has published two casebooks, Forced Migration: Law and Policy and Immigration and Citizenship Law: Process and Policy, which are used by more than 100 law schools and universities throughout the United States.