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WASHINGTON, D.C. (December 17, 2020) - The National Immigrant Justice Center (NIJC) filed a complaint with the Department of Homeland Security (DHS) Office of Civil Rights and Civil Liberties and Office of Inspector General on behalf of three people who came to the United States to seek asylum but were blocked from protection when the U.S. government referred them for criminal prosecution for entering the country without authorization. The complaint describes the ways in which migration-related prosecutions systemically undermine asylum rights along the southwest border.

“NIJC is calling on the Biden administration to investigate the abuses detailed in the complaint and how racist laws used to prosecute people for unauthorized entry and reentry violate the United States’ national and international legal obligations to provide asylum protection to migrants seeking refuge,” said Mary Meg McCarthy, NIJC’s executive director. “For nearly 20 years, the U.S. government has prosecuted migration-related offenses in greater numbers than any other type of federal offense in the United States, systematically violating the civil rights of migrants, including blocking asylum seekers from access to protection and keeping families apart.”

“The complainants’ declarations illustrate systemic rights abuses, including DHS officers’ failure to ask obligatory questions related to fear-based claims,” said Dorien Ediger-Seto, NIJC senior attorney. “Their stories also show how the Trump administration’s asylum-restricting policies have fueled migration-related prosecutions and how being referred for prosecution restricts migrants’ ability to pursue their claims for protection.”

The complainants, identified publicly with pseudonyms to protect their safety, are:

  • Oliver, who was turned away at a U.S. port of entry when he tried to seek asylum. He crossed between ports and was prosecuted for unauthorized entry, even after attempting to tell border patrol agents he feared returning to Honduras. He was detained for months in U.S. Marshals and then Immigration and Customs Enforcement (ICE) custody.
  • Alexis, a transgender woman from Guatemala, who also was forced to enter the United States between ports of entry and was then prosecuted and deported without a credible fear interview or an opportunity to see an immigration judge. While in Customs and Border Protection (CBP) and U.S. Marshals’ custody, she reported being mocked for her gender presentation and made to feel unsafe.
  • James, who was apprehended at the border and, instead of referring him for a credible fear interview, border patrol agents referred him for prosecution for unauthorized entry. He was not able to communicate with his family or an attorney for weeks after he was arrested at a courthouse by DHS agents following a court appearance where his migration-related criminal charges were dropped.

NIJC released a report in July 2020 detailing routine violations of international and domestic law stemming from the U.S. government’s prosecution of unauthorized entry and reentry. In its report, NIJC highlights violations of asylum protections, the permanent separation of family members, abuses of basic due process safeguards provided to individuals facing criminal charges, and persistent dehumanizing and racist treatment of migrants by federal officials, including immigration officers.

In the complaint, NIJC asks the DHS inspector general and civil rights offices to investigate the cases of Oliver, Alexis, and James and the violation of their rights under U.S. asylum law.