Is zero tolerance legal?

Ever Reyes Mejia of Honduras carries his son to a vehicle after being reunited and released by ICE in Grand Rapids, Mich. They were separated in May.

Separating families at the southern border was the harsh outcome of a stringent policy. Wanting to deter families fleeing violence in their home countries from seeking asylum in the United States, the Trump administration elected to traumatize innocent children in order to punish their parents and send a foreboding message to other refugee families.

President Trump’s executive order, which ends family separations but authorizes family detentions, may or may not resolve the issue — it will face court challenges. Still, while the harshness of family separations has halted temporarily, the stringent policy remains.

Mr. Trump’s “zero tolerance” immigration policy is simple: All migrants crossing the southern border unauthorized are being charged with illegal entry and remanded for criminal prosecution. This policy does not distinguish families fleeing violence to seek refuge from persons migrating to seek employment or criminals engaging in human trafficking. Disregard for that distinction differentiates Mr. Trump’s immigration policy from those of former Presidents Obama and Bush.

One need not be a liberal or a Democrat to question Mr. Trump’s policy. One need only be a law-respecting citizen. Although implemented in the name of enforcing the law, “zero tolerance” is dubious as to its own legality.

Speaking on National Public Radio on June 23, Erika Pinheiro, an immigration lawyer, stated: “It’s actually not breaking the law [to cross the border unauthorized] if you are seeking asylum…I believe that these prosecutions of asylum seekers are illegal. They certainly violate international law and, I would argue, federal law as well.”

Ms. Pinheiro cited United States Code, Title 8, Section 1158, which pertains to asylum. The first paragraph states: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival…), irrespective of such alien’s status, may apply for asylum…” Under federal law, asylum seekers are not restricted to ports of entry; refugees are permitted to request asylum anywhere along the border. It is not a federal crime to cross the border unauthorized to request asylum.

Compounding this is the alleged fact, reported by the Dallas Morning News on June 6, and corroborated by eye witnesses at the border, that U.S. border guards at several ports of entry are routinely turning away asylum seekers before they can reach the checkpoint on the U.S. side to request asylum. Prevented from accessing ports of entry, some refugees are crossing the border unauthorized to request asylum—and then are being arrested and prosecuted for illegal entry. This amounts to a double denial of refugee rights.

The international law pertaining to this policy is the Convention Relating to the Status of Refugees (1951). The United States is one of 26 original parties to this binding agreement.

Separating families goes against one of the fundamental principles of the Convention. Recognizing that “the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee,” the Convention affirms that “the rights granted to a refugee are extended to members of his family.” Accordingly, the Convention recommends “Governments to take the necessary measures for the protection of the refugee’s family especially with a view to…Ensuring that the unity of the refugee’s family is maintained…”

Prosecuting asylum seekers who cross unauthorized for illegal entry clearly violates the express terms of the Convention. Article 31, which pertains to “refugees unlawfully in the country of refuge,” states: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened…enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

Under federal law and international law, an asylum seeker’s unauthorized crossing is not itself a prosecutable act. Refugees have the right to cross the border at any point, not only at ports of entry, and present themselves to authorities to request asylum. Crossing a border to seek asylum is not contrary to law—but prosecuting asylum seekers as criminals is contrary to law.

The criminal prosecution of all migrants crossing the border unauthorized, without regard for the rights of refugees to seek asylum, is arguably illegal. The Trump administration’s “zero tolerance” enforcement of immigration law thus appears to be contrary to law.

Darrin W. Snyder Belousek teaches philosophy at Ohio Northern University and lives in Lima, Ohio.

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