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Commentary Immigration Justice

Criminalizing migration is part of an effort to end asylum

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By Jordyn Rozensky

Margo is a survivor. For years, as her mental health was adversely impacted, she survived persecution and torture. For making her best efforts toward survival, the U.S. government charged Margo with a felony.

Jordyn Rozensky

Over an extended period of time, she was extorted and threatened by a local gang in Honduras. Going to the police was not an option. When she tried, the police informed her tormentors and the violence intensified. Her support system, aware of the threats on her life and the PTSD she was experiencing, told her to leave. She wouldn’t survive if she stayed. 

This wasn’t Margo’s first attempt to seek safety in the United States. In 2014, she entered the United States, but was quickly deported. (Her lawyer has asked that Margo be identified by a pseudonym.)

In 2018, Margo crossed the border near El Paso. Despite a federal law requiring Customs and Border Protection to ask migrants if they fear returning to political violence before turning them back to their home countries, they never asked Margo those questions. Instead, the Department of Justice charged her with a felony for unauthorized reentry. She pled guilty to a misdemeanor charge for entry and was incarcerated for 97 days. 

Even after Margo completed her criminal sentence, she wasn’t free. Instead, she was transferred to Immigration and Customs Enforcement custody for civil immigration proceedings. While her case moved forward, ICE held her in a cell with ex-members of the same gang that had threatened her life. 

Margo’s attorney believes the government’s decision to criminally prosecute her extended her time in detention by at least half a year. While in the West Texas Detention Facility, Margo’s mental health deteriorated. Her ability to present her case suffered. More than 100 people around her tested positive for COVID-19. She was detained for one year, seven months, and eight days.

Margo’s case isn’t isolated. In my role at the National Immigrant Justice Center, my colleagues and I meet people like Margo nearly every day. In the past year, as part of a larger look at the criminalization of migration, the National Immigration Justice Center interviewed more than 50 individuals prosecuted by the government for unauthorized entry or reentry. 

Margo fled Honduras to seek asylum in the United States and was detained for more than a year and a half. (Photo courtesy of National Immigrant Justice Center)

The U.S. government is bound by both domestic and international legal obligations to protect people fleeing persecution and torture. Yet the Department of Homeland Security routinely prosecutes asylum seekers and other individuals who enter the country without authorization.

Approximately 10 percent of the federal prison population – and around 60 percent of all criminal prosecutions in federal courts – is due to the Trump administration’s routine prosecution of individuals who enter or re-enter the United States without authorization. An average of 11,100 people are in federal prisons on any given day serving time for migration-related convictions, while approximately 13,600 individuals are held in pre-trial detention

The criminal prosecution of unauthorized entry and reentry have increased by nearly 50 percent from 2017 to 2019, leading to an extreme increase in the time individuals, like Margo, spend incarcerated.

This criminalization has devastating and long-lasting effects. Our research found that the U.S. government’s prosecution of unauthorized entry and reentry consistently results in permanent separation of family members, violation of basic due process protections, persistent dehumanizing and racist treatment of migrants by federal officers and routine violation of U.S. asylum law.

What happens when borders and policies ignore humanity? What happens when the government cuts off people’s pathways to safety? What happens when it is the U.S. government that fails to do it the “right way?” 

Margo’s criminal conviction was part of the Trump administration’s xenophobic attempts to stop asylum seekers from coming to the United States. In July 2018, DHS instructed asylum officers to use unauthorized entry convictions as a negative point on asylum applications. In December 2019, the administration proposed barring any individual convicted of unauthorized entry from even requesting asylum. 

I’d like to point to Margo’s case as a rallying call – an extreme situation that shakes you to your core and pushes you to speak out. But, alas, Margo’s case isn’t extraordinary at all. In fact, nearly 90 percent of the people NIJC interviewed said that CBP never asked about their fears of returning to the countries they fled.

Alexis, a transgender individual, was mocked instead of listened to, and Oliver was forced to make his own masks out of a t-shirt while COVID-19 spread through his detention center. Since publishing our research, we’ve continued to hear from other asylum seekers who expressed a fear of returning and simply weren’t heard. They, like Margo, all faced criminal prosecution on migration-related charges. 

The National Immigrant Justice Center has, along with other organizations and stakeholders, called on Congress to support the New Way Forward Act, which would repeal the laws used to prosecute migrants for unauthorized entry and reentry that lead to the prolonged incarceration of people like Margo.

Margo’s story might just be one of thousands, but let it inspire you to action.

Jordyn Rozensky is an El Paso-based communications strategist for the National Immigrant Justice Center, a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation, and public education.

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