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What does enforcing the law at the border and within really mean?

By Marselha Gonçalves Margerin, Advocacy Director for the Americas at Amnesty International USA

Congress has less than 48 hours to pass the 2018 (FY18) budget by Friday, March 23. If lawmakers don’t pass the 12 spending bills packaged in the hold-all omnibus bill, it could lead to a third government shutdown in three months, or a sixth continuing resolution (CR) that would provide a stop gap funding for federal agencies and operations.

Some observers are optimistic that there will not be a shutdown as the omnibus spending bill dropped this Wednesday evening. Some members will have an issue in voting for a 2,232 page, 1,3 trillion spending bill without much time to read it. Congressional leadership have been negotiating many areas of contention the past weeks. Two of those issues were the President’s request of $23 billion dollars for a southwest border wall, including border security, and a solution to immigrants leaving in the U.S for decades facing deportation, such as for loss of immigration status under the Deferred Action for Childhood Arrivals (DACA) or Temporary Protective Status (TPS).

Amnesty International was concerned that negotiators were going to peg a solution for immigrant families that have made this country home with funding for a southwest border wall, threatening current protections for people seeking refuge and the livelihood of Native Americans and communities living along the border.

Even if much smaller than the original 23 billion presidential requested, the spending deal includes $1.6 billion for border security, and $641 million for new fencing, including levees. There is also report language that would not allow any of that money to be used toward detention beds for undocumented immigrants or to hire new deportation agents. Amnesty international has for long advocated for alternatives to detention of immigrants.

Even if much smaller than the original request, authorizing spending for southwest wall system is still concerning. Congress should not approve any border wall funding absent the free, prior, and informed consent of affected Native American Nations as it would violate the United Nations Declaration on the Rights of Indigenous Peoples. As a southwest border wall would cut through tribal land, the U.S. government must obtain the free, prior, and informed consent of affected Nations, as per Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples. The National Congress of American Indians and the Tohono O’odham Legislative Council, both passed resolutions opposing the construction of the wall without tribal consent.

Secondly, further construction of a border wall/fencing could prevent asylum seekers from entering the U.S., including Central American children and families who have survived torture or other persecution. Under U.S. and international law, the U.S. government must provide a fair and accessible asylum process, to ensure that people are not returned to situations where they would be persecuted. For that to happen, the U.S. government must ensure the existence of sufficiently located, secure, regulated border crossing points for asylum seekers. These protections are not loopholes!

Last week, the President traveled to California to campaign for his border wall with the message that his administration is working to enforcing the law at the border and within the country. This message is at minimum disingenuous, and his administration and its agencies such as Customs and Border Patrol (CBP) and Immigration Customs Enforcement (ICE) are not always following the rules current in the books.

Several organizations have reported, filed claims, and lawsuits denouncing federal agencies not current following the laws and protocols in place to protect asylum seekers. For instance, Amnesty International have documented cases of asylum seeking families being separated at the U.S border by CBP, such as baby Mateo and his father Jose, as well as people fleeing persecution being turned back, and being unlawfully detained by ICE agents such as 15-year-old Astrid her dad Arturo.

Disguised as fair “immigration solutions”, President Trump and some powerful Members of Congress have been pushing for physical barriers and legislative changes, that are actually, discriminatory, criminalize asylum seekers, violates U.S human rights obligations, and would destroy the U.S asylum protection system as it stands. Their displayed cynicism has baffled many.

As of Wednesday night, there aren’t any reports of any policy riders tie funding for the wall to a permanent solution for immigrants that lost their status with suspension of DACA or TPS, or any solution for them at all. The spending bill still provides for 90 miles of “wall systems” construction along the southwest border, and despite raising legally issues it will likely pass in Congress. After that, we will continue our call for oversight.

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