Lessons Learned from Last Century’s Climate Change Migration

By Elizabeth Keyes*

Then and Now

Left: Migrant Workers in California, 1935/ Dorothea Lange/ U.S. Library of Congress/ Wikimedia Commons (modified)// Right: Central American migrants find quarter in southern Mexico/ Peter Haden/ Wikimedia Commons (modified)

Central Americans seeking asylum in the United States are not the first victims of government policies that discourage migration, send law enforcement to turn them away at a border, ban them from receiving public benefits, and pass laws seeking their immediate repatriation: the Dust Bowl migrants, almost 100 years ago, faced the same fate. Their story is more complex than that of John Steinbeck’s Joad family turning to labor in California’s “factories in the field.”

  • Drought came to Oklahoma and other Dust Bowl states after decades of agricultural practices that prioritized heavy production at the expense of land management and conservation. Corporate farmers favored practices maximizing short-term yield over long-term sustainability. The New Deal bought up farmland, displacing tenant farmers. Relief at the peak of the Dust Bowl in 1934 was mismanaged, and it did not help people stay.
  • Affected residents headed to California, which during a previous economic boom had sought out “migrant” labor from elsewhere in the United States. Many had a relative or friend already in California who could provide a migration pathway, just as happens with migration in 2020. Those with friends or family in the cities fared relatively well, but those who ended up in the labor camps of California’s valleys fared extremely poorly.

As the state’s boom ended in the Great Depression, California made efforts to discourage the migrants, erecting billboards along Route 66 warning would-be migrants that California was no longer an ideal destination. The state criminalized the act of helping indigents migrate, and the Los Angeles Police Department set up “bum blockades” to refuse them entry.

  • California’s responses looked a lot like current efforts to stop migrants seeking to enter along the U.S. border with Mexico: criminalization and walls. Internally displaced persons in the 1930s faced the same kinds of xenophobia that the migrants from outside the United States do today, defining “Okies” as a problematic “other” as if from a foreign country. Although they were, indeed, “fellow Americans” and driven from the land by environmental disaster, it took almost a decade for the U.S. Supreme Court – in Edwards v. California – to clarify that states could not bar migration from other states, and to affirm an ethic of sharing hardships across state lines.
  • The Dust Bowl migrants entered a labor market with strong racial and class inequities. As the United States deported roughly a million Mexican and Mexican-American farmworkers between 1929 and 1936 (with an estimated 60 percent of those being U.S. citizens wrongfully deported), the new migrants took over those jobs.

State and international borders differ legally, of course, in critical ways, but the experience of Dust Bowl migrants nonetheless sheds light on the possibilities for Central American and Mexican migrants today. Climate change is again increasing the drivers of environmental displacement, both internal and international, both slow-onset and acute. Just as a focus on environmental justice and sustainable agriculture would have reduced the need for migration out of the Plains in the 1930s, work done now to mitigate and adapt to climate change would help Central American and Mexican farmers stay in place. And in the communities receiving migrants, we see that California adapted and accommodated them once the Supreme Court refused to endorse California’s deterrent strategies. The Court recognized in the strongest terms that California was enduring great upheaval but determined that it could not use its state border to limit that upheaval.

The same Court also routinely upheld the federal government’s right to use the national border to inoculate the country “from difficulties common to all.” International immigration is legally, if not dynamically, morally or philosophically, different from internal migration.

  • Nonetheless, the Edwards decision provides a wonderful exercise in “what if” thinking. Because of the decision, those suffering in Oklahoma and Kansas had a place to go and could build new lives in California, changing the state but not ending it. Indeed, the state has the largest economy of all 50 states and by one measure is the “14th happiest” in the nation. California is an example of state resilience to migration, even dramatic levels of migration.
  • Perhaps the pain of the Dust Bowl – the forces that sent people migrating and the realities they faced in their new homes – offer us important lessons for international migrations caused by climate. There is no international-style Edwards approach, and refugee law offers no good answers. But the full, complicated Dust Bowl history encourages us to move beyond fear and xenophobia to face the challenges forthrightly, knowing that we do have a remarkable capacity for adaptation.

April 15, 2020

* Elizabeth Keyes teaches law and directs the Immigrant Rights Clinic at the University of Baltimore School of Law.

 

 

 

 

Challenges to “Safe Country” Strategy in Central America Mounting

By Fulton Armstrong

San Ysidro

Processing at the San Ysidro Port of Entry/ U.S. Customs and Border Protection/ Flickr/ U.S. Government Works

Challenges to the U.S. government’s “Asylum Cooperation Agreements” (ACAs) with Central American countries – under which asylum seekers approaching the U.S. border are sent to camps in the Northern Triangle – are mounting fast, but the administration of President Donald Trump does not appear likely to budge significantly from its current approach. Under the threat of loss of $143 million in aid to the three Central American countries, Guatemala signed its agreement under former President Jimmy Morales last August; a similar accord with Honduras is to “come online any day,” according to U.S. officials; and El Salvador is also deep in negotiations. (Aid has been restored.) The ACAs stipulate that asylum seekers apply for asylum in the “first safe country” they enter after fleeing their own. As a result, the United States has sent about 800 persons of various nationalities to Guatemala.

  • Immigration and human rights advocates have condemned the agreements. They report that Guatemala – where most asylum seekers have been sent so far – lacks the ability to process them. Human Rights Watch recently reported, moreover, that individuals repatriated to El Salvador since 2013 – as envisioned by the ACAs – have been assassinated at an alarming rate. The group has confirmed 138 cases of individuals killed after deportation and another 70 beaten, sexually assaulted, extorted, or tortured.
  • The chairs of the U.S. House Committee on Foreign Affairs and relevant subcommittees (all Democrats) have called the ACAs “illegal, dangerous, and antithetical to U.S. values.” In a letter to Secretary of State Pompeo, they said that U.S. law requires that asylum seekers have “access to a full and fair procedure for determining a claim to asylum” – which the Guatemalan facilities lack. The Congressmen assert, moreover, that U.S. law requires adherence to international law on non-refoulement, which mandates that asylum seekers cannot be sent to a country in which they will face further persecution.
  • The workers’ union representing 700 U.S. asylum and refugee officers has declared that the agreements and the administration’s implementation of them are a “violation” of international treaty obligations. These are the career specialists on the front line charged with carrying out the policies. The Guatemalan government has raised its own concerns, citing its “very limited capacity” to process asylum-seekers sent there. Newly inaugurated President Alejandro Giammattei has never appeared comfortable with the ACA and has asked Washington for “clarifications” of his country’s obligations under it.

U.S. reaction so far has been to deny anything is wrong. Senior officials say that very few asylum seekers deported to Guatemala are applying for asylum there, with the vast majority instead choosing to return to their home countries. Citing experts, the U.S. congressmen say that less than 4 percent have “been able to seek protection through Guatemala’s overburdened system.” Others report that victims of violence in their home countries face similar prejudices in Guatemala.

  • Apparently to encourage potential asylum seekers to apply for U.S. visas, the administration on March 5 announced it is increasing H2‑B visas for non-agricultural workers this year, with 10,000 reserved for applicants from the Northern Triangle. But if H2‑B visas are issued along the same guidelines as other visas, U.S. consular officers will be required to deny them to applicants they have reason to suspect will try to remain in the United States – as all ACA cases have tried.

The ACAs are a key element of the Trump administration’s efforts to move the “wall” blocking asylum seekers as far off the U.S. border as possible, shifting the burden to the same Central American countries whose poverty, violence, and corruption are driving citizens to flee. However compelling the Foreign Affairs Committee’s arguments that the administration is violating U.S. law and values, the letter’s impact has been blunted by widespread perceptions that the novel coronavirus (COVID-19) is further proof that the United States needs to keep outsiders from entering the country. The Administration is also not swayed by the fact that the U.S. State Department’s own repeated warnings that U.S. citizens limit travel to Northern Triangle countries – because of widespread “violent crime … rape, and narcotics and human trafficking – contradict the assertion that the ACA partners are “safe countries.”

  • Guatemala’s call for “clarification” of implementation guidelines and talks on the final details of Honduras and El Salvador’s arrangements give the administration a chance to make cosmetic adjustments and, perhaps, promise more resources to the designated “safe countries.” But it has given no sign of reconsidering its overall approach. The Trump administration remains as committed as ever to addressing the migration problem by closing the U.S.’ door rather than addressing the underlying conditions in the region driving people to risk their lives to get to the United States. Central American analysts are already deeply concerned that the economic impact of the COVID‑19 pandemic (including 1 percent growth or less), coupled with USAID’s own budget cuts, spell reduced aid and a worsening of the vicious cycle of poverty that drives emigration and empowers illicit actors.

March 17, 2020

Mexico: Has AMLO Compromised on Human Dignity?

By Alexandra Délano*

Mexican Foreign Secretary Marcelo Ebrard speaks during a meeting in 2018, during which U.S. Secretary Mike Pompeo was present

Mexican Foreign Secretary- designate Marcelo Ebrard participates in a bilateral meeting with U.S. Secretary of State Michael R. Pompeo in Mexico City on October 19, 2018. State Department photo/ Wikimedia Commons

Mexico has always negotiated with the United States from a position of weakness – it depends on its northern neighbor economically and politically more than the other way around – but the recent negotiations, compromising its commitment to human dignity in exchange for avoiding tariffs, may be among the worst outcomes. Tariffs on Mexican products would surely be costly for Washington, as business leaders and Republican legislators have stated recently, but the much greater economic threat is to Mexico. As a result, Mexico has consistently sought to keep the issue of migration separate from trade and other priorities – a delinking that both countries have accepted for the sake of advancing economic integration.

  • Trump has destabilized that tacit agreement by asserting that maintaining the status quo in commercial relations will depend on new steps by Mexico to support expansion of barriers on its northern border, to better control its southern border, and to stop the flow of migrants from Central America. In addition to imposing the tariffs, Trump threatened to abandon the newly negotiated North American Trade Agreement (“USMCA”) and even to close the U.S.-Mexico border.
  • President Andrés Manuel López Obrador (AMLO) has opted for a strategy of minimizing confrontation with Trump. This has implied concessions such as accepting the return of persons awaiting asylum hearings in U.S. courts. Even though this policy, called the Migrant Protection Protocols (or Quédate en México), is not in an official agreement, and even though it does not go to the extreme of establishing Mexico as a “safe third country” – which would obligate migrants to claim asylum in Mexico instead of having the option of continuing their journey to the United States – it is an attempt to appease Trump and maintain the fragile balance in the relationship.
  • AMLO has taken other steps to placate Trump. For example, Mexico and the UN’s Economic Commission for Latin America and the Caribbean (ECLAC or CEPAL) recently announced a development plan for Central America that, although limited in scope and without apparent funding, is an important step towards addressing root causes of migration in the region.

AMLO’s government negotiated to increase its control of the southern border and to continue to host asylum-seekers awaiting a court hearing in the United States. It did so in the absence of an integrated migration strategy, and without a commitment to invest resources, at a time when the budget of the Mexican Commission for Refugee Assistance (COMAR) was just cut 20 percent. The Instituto Nacional de Migración (INM) is also ill-positioned to assume a greater role without addressing its need for the resources and measures necessary to root out corruption and reduce its over-reliance on detention and deportation. Officials from these organizations were not even included in the negotiations – further reflecting the lack of vision and interagency coordination on the migration challenges. Not surprisingly, the INM Commissioner resigned days after the agreement was announced.

  • Mexico’s policies also appear to neglect the need to strengthen multilateral mechanisms to compensate for its weakness in the face of U.S. pressure. Mexico has traditionally been one of the most active promoters of multilateral agreements on cooperation on migration issues, including the Global Compact on Migration approved last year, but it appears unable to build on these accomplishments to either counterbalance Trump’s pressures or guide an internal policy on what to do. It has also failed to build support among G20 allies, including Canada – its second most important trading partner and a player in the extractive activities implicated in driving emigration and internal displacement in Central America and Mexico.

Mexico’s migration policy at this point is very far from the ideals laid out by López Obrador. His primary concern has been to pursue the impossible goal of containing Trump without harming other interests. Above nationalist posturing – claims that Mexico will never negotiate away its dignity – is the need to protect the dignity of persons. A migration policy that prioritizes migration control and that is based on the mood swings of the United States’ government does not meet this basic criterion. It leaves Mexico in the same weak, isolated position from which it cannot negotiate agreements on labor mobility, humanitarian protection, and economic development. Mexico seems to have made a strategic error in response to Trump’s most recent tantrum – one likely to reoccur under even more challenging conditions as the 2020 election nears.

June 25, 2019

* Alexandra Délano is chair of the Global Studies Department at the New School in New York City. This article is adapted from her essay in El País on June 5, Lo que está en juego en las negociaciones con Estados Unidos: la dignidad humana.

Ecuador: Moreno Reverses Another Correa Policy

By John Polga-Hecimovich*

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President Lenín Moreno / Flickr / Archivo Medios Públicos EP / Creative Commons

Ecuadorian President Lenín Moreno’s announcement last week that he had withdrawn diplomatic immunity for Wikileaks co-founder Julian Assange was long in coming and consistent with his efforts to reverse the excesses of his predecessor, ex-President Rafael Correa. In a three-minute-fifteen-second speech via Twitter, Moreno listed the reasons for his decision: Assange’s disrespectful and aggressive conduct, Wikileaks statements against Ecuador and, above all, Assange’s transgression of “international conventions.” Predictably, Correa, who originally offered the asylum protection, accused Moreno of being “the greatest traitor in Ecuadorian and Latin American history” who had committed a crime “that humanity will never forget.” Wikileaks accused Moreno of trading Assange to the United States for debt relief. Rhetoric and accusations aside, Assange had long been on shaky ground with the Moreno administration, and recent leaks of the president’s personal information made the decision seemingly inevitable.

  • Correa offered Assange asylum in 2012 to thumb his nose at the United States and contest claims that he did not protect freedom of the press. After Wikileaks leaked hundreds of Democratic Party campaign emails in 2016, he restricted Assange’s internet access at the embassy in London but, for ideological consistency, continued to support his infamous houseguest. Moreno possessed no such ties when he took office in May 2017 and called Assange “an inherited problem.” Assange’s asylum impeded Moreno’s ability to seek greater security and commercial cooperation with the United States.
  • The Wikileaks founder did not seem to understand the significance of this change. Not only was he messy, demanding, and abusive toward embassy staff; he reportedly violated his asylum conditions and, according to Moreno, tried to use the embassy as a “center for spying” – prompting Ecuador last October to impose a protocol regulating his visits, communications, and other matters. The tipping point for the Ecuadorian government was in February, when an anonymous source sent a trove of emails, phone communications, and expense receipts to Ecuadorian journalists, supposedly linking the president and his family to a series of corrupt and criminal dealings, including money laundering and offshore accounts, leading to a corruption investigation by Ecuador’s attorney general. A website also published leaked personal material unrelated to corruption, including photos of Moreno and his family lifted directly from his phone.

Moreno’s decision is unlikely to significantly affect his political capital. Although polls show his approval rating continues to decline as he pursues fiscal austerity policies, public opinion on this issue is likely to split along existing pro-Correa and anti-Correa lines. Further, given that personal information was already leaked, Moreno does not seem to fear potential reprisals from Wikileaks or others for his action. Nor does he appear to harbor additional political ambitions: he has all but ruled out running in the 2021 elections, and his once-dominant Alianza País (AP) party performed poorly in the March 24 regional elections, managing to win a paltry two of 23 governorships and only 28 of the 221 mayoralties. If anything, Moreno should be more worried about the attorney general’s investigation than the fallout from booting Assange.

Little by little in his two years in office Moreno has neutralized Correa’s political power and reversed his predecessor’s policies – often provoking the ex-president (see previous posts here and here). In the last six weeks alone, Moreno announced he would launch an international anti-corruption commission; hosted and expressed his support for Venezuelan opposition leader Juan Guaidó, saying that Venezuela and Ecuador “are both on the way out of the abyss in which we were placed: this poorly named 21st century socialism”; and signed a $4.2 billion loan from the IMF – all actions that would have been unthinkable from 2007 to 2017. Ultimately, giving Julian Assange asylum was politically costly and brought no benefits to a government that’s too weak to waste political capital on an international troublemaker. Recent events may have triggered his ouster from the embassy, but the writing has been on the wall for some time now.

* John Polga-Hecimovich is an Assistant Professor of Political Science at the U.S. Naval Academy. The views expressed in this article are solely those of the author and do not represent the views of or endorsement by the Naval Academy, the Department of the Navy, the Department of Defense, or the U.S. government.

U.S. Immigration: Call for Wall Ignores Changing Migrant Profile

by Dennis Stinchcomb

Graph of southwest border apprehensions, FY 2012-2019

Southwest border apprehensions, FY 2012-2019 / Note: FY 2019 data is through November 2018. Figures may not total 100% due to rounding. / Data source: U.S. Customs and Border Protection

As a record number of Central American families and unaccompanied children flock to the U.S.-Mexico border, the Trump administration’s demand for a $5.7 billion wall ignores changing migrant demographics and leaves largely unaddressed an asylum system buckling under unprecedented strain.  While undocumented immigration at the U.S.-Mexico border remains at historic lows, over 48,000 individuals comprising family units (parents traveling with children) were apprehended at the U.S. southwest border between October and November 2018 – a 308 percent increase over the same two months in 2017.  Such a staggering rise comes on the heels of what was already a record-setting year.  Between October 2017 and September 2018, border officials tallied the highest level of family crossings on record; the over 107,000 individuals detained by border officials dwarfed the roughly 40,000 apprehensions of unaccompanied children that prompted the Obama administration to declare a “crisis” in summer 2014.

A closer look at recent immigration trends underscores changing realities at the border:

  • Central American families and children represent an ever-growing share of migrants. Because overall undocumented immigration at the border has dropped and families and children have surged, the latter now account for 40 percent of all unauthorized migrants apprehended, up from 10 percent in 2012.  (Prior to 2012, family apprehensions were not publicly reported.)
  • Guatemalans now account for over half of all Central American family and child migrants. Though Guatemala is more populous than neighboring El Salvador and Honduras, proportional disparities in migrant flows from the three Northern Triangle countries have widened in recent years.  Guatemalan families apprehended at the border doubled between 2017 and 2018, and the number of unaccompanied Guatemalan minors increased by over 50 percent.  An increasing share of these migrants are coming from indigenous communities where poverty and malnutrition are rampant, so border officials face compounding challenges including linguistic barriers and health needs – factors that may have contributed to the recent deaths of two Guatemalan children while in Border Patrol custody.
  • Family and child migration from El Salvador has plummeted to its lowest level since 2013. The abrupt decline in Salvadoran migration to the United States has led many experts to point to the chilling effects of the Trump administration’s decision to terminate Temporary Protected Status (TPS) for nearly 200,000 Salvadorans currently residing in the U.S.  The “Trump effect” following his early 2017 executive orders, however, was short-lived, and other events, such as possible controversy over elections next month, could renew migratory pressures and further exacerbate conditions at the border.
  • The dramatic increase in migrant flows from Central America has fueled an historic surge in asylum claims. At the border, credible-fear claims – the preliminary step in soliciting asylum – continue to climb precipitously, up from 9,000 in 2010 to 79,000 in 2017.

The U.S. Government’s proposed solutions to the burgeoning humanitarian crisis do not reflect the evolving profile of migrants at the U.S.-Mexico border.  President Trump’s border wall – a hallmark promise of his 2016 campaign – appears aimed at the familiar Mexican adult migrant of the early 2000s or the mythical “bad hombre” spawned by his own nativist tendencies.  His Administration’s recent attempts to deter migrants or bar their access to asylum, either by separating families or rolling back protections for victims of domestic violence, have not stemmed the flood of arrivals.  A new “caravan” of migrants is set to depart Honduras this week.  Nor will a wall extinguish migrants’ legal right to request asylum.  The President’s most recent budget request for modest funds for hiring immigration judges and providing border infrastructure to support “vulnerable populations” is being held up by the political impasse in Washington over his greatly disproportionate spending on a wall, Border Patrol agents, and detention facilities.  Compromise between the President and Congressional Democrats remains elusive three weeks into a confrontation that has shut down much of the U.S. Government.  While Democrats have expressed willingness to beef up border security in exchange for a significant immigration win, such as legalization of the Dreamers or renewal of TPS, anything short of meaningful reform to the U.S. asylum system will do little to resolve the backup at the border.

Jan 15, 2019

U.S. Immigration Policy: New Obstacles to Asylum

By Jayesh Rathod*

U.S. Attorney General Jeff Sessions

U.S. Attorney General Jeff Sessions. / Glenn Fawcett / U.S. Customs and Border Patrol / Flickr / Creative Commons

The Trump administration’s decision to reverse established U.S. policy to grant asylum to certain victims of domestic violence increases the importance of – and challenges to – experts called on to demonstrate the credible threat applicants face if denied asylum and deported.  U.S. Attorney General Jeff Sessions on June 11 issued the opinion, which rescinded precedent that had paved the way for survivors of such violence to receive asylum.  More generally, the case – known as Matter of A-B- – creates additional legal roadblocks for asylum applicants who fear harm at the hands of private (non-state) actors, such as gangs and intimate partners.

  • Federal regulations permit the Attorney General to refer immigration cases to himself for decision, in order to revisit a decision of the Board of Immigration Appeals (BIA) and issue a new opinion that creates binding nationwide precedent. Sessions has made frequent use of this special procedure, certifying four cases to himself since the beginning of the year.  Each of these cases is poised to limit the rights and protections afforded to asylum seekers and others facing removal proceedings.  For example, Sessions vacated the BIA’s decision in Matter of E-F-H-L-, which had held that asylum applicants are entitled to a full merits hearing, including the opportunity to present oral testimony. The vacatur opens the door to summary denials by Immigration Judges.

In Matter of A-B-, Sessions explicitly overruled the BIA’s 2014 decision in Matter of A-R-C-G-, which provided a legal road map for asylum-seekers fleeing domestic and gang violence.  Under applicable case law, an applicant – such as a domestic violence survivor or target of gang violence – who fears persecution by a private actor may qualify for asylum, provided they can prove that their home country government is “unable or unwilling” to control the private actor.

  • Courts had previously expressed distinct views on how to interpret this standard, yet most embraced a plain-language reading of “unable or unwilling.” In Matter of A-B-, however, Sessions – in language that many legal scholars judge to be meandering and slightly inconsistent – suggests applicants must meet a higher standard and show “that the government condoned the private actions,” that those actions “can be attributed to the government,” or that the government “demonstrated a complete helplessness to protect the victims.”  Sessions opines that “[n]o country provides its citizens with complete security from private criminal activity,” implying that deficiencies in law enforcement efforts will not necessarily translate into a successful asylum claim.

The unclear language in Matter of A-B- has left some wondering about the precise legal standard that is now in place.  What is certain, however, is that Matter of A-B- presents a smorgasbord of reasons for skeptical immigration judges to deny asylum claims from the Northern Triangle of Central America.  While a CLALS-hosted workshop underscored that country conditions evidence has always been critical to these cases, adjudicators will now pay even closer attention to country experts, and will demand more evidence regarding efforts by home country governments to control private violence, and of the relationship between those governments and private actors.

  • The new requirements stack the deck against asylum-seekers. The governments in the Northern Triangle of Central America – with Washington’s strong financial and political support – have long argued they’re making efforts to curb gang violence.  Before Matter of A-B-, the “unable or unwilling” standard allowed asylum claims to succeed while permitting these governments to save face under the theory that they were trying, albeit imperfectly, to control violent private actors.  By demanding even more unfavorable evidence regarding these home country governments, Matter of A-B- sets up a likely conflict between the legal standard for asylum and the preferred messaging of those governments and the Trump administration.  Facing an array of entrenched interests, it will be difficult for country experts to show that governments commit or condone the violence against asylum-seekers or that authorities are “completely helpless” to protect victims.

July 10, 2018

* Jayesh Rathod is a professor at the Washington College of Law and founding director of the school’s Immigrant Justice Clinic.

U.S.-Latin America: “Zero Tolerance” Makes Zero Progress

By Ernesto Castañeda *

Children and adults stand in a line

Central American migrant children and their parents. / Pride Immigration Law Firm PLLC / Wikimedia

U.S. President Donald Trump’s family separation policies, despite his June 20 executive action ending them, will have long-term negative consequences and will do nothing to stem the flow of migrants into the United States.

  • Hundreds of families remain separated. Families are detained indefinitely for applying for asylum or crossing into the United States.  Political outrage in the United States may be new, but these policies are not.  Millions of families have been separated across U.S. borders for many years.  After growing up without their parents, children who did not originally accompany migrating parents often attempt to reunify with them in the United States, resulting in the increase of unaccompanied minors that we have seen since 2014 and the surge in violence in Central America.
  • The Trump Administration’s policies fail to address the underlying causes of migration – violence, impunity, corruption, and poverty in sending countries and high U.S. demand for low-cost workers – which show no sign of abating. Many Mexicans and Central Americans are fleeing kidnappings, extortions, and death threats as they explain during credible-threat interviews that give them valid claims for asylum.  U.S.-backed militarized responses to drug trafficking have produced much of the violence and corruption in Mexico and Central America, generating asylum-seekers.  Beyond the traditional economic and social reasons, many recent immigrants are escaping violence, as they did during the Mexican Revolution and the political violence in Central America in the 1980s.

Family separation and the detention of unaccompanied minors in shelters are not new practices either.  What was new in recent months was the separation of families that come to the United States seeking asylum.

  • These forced separations cause the children lifelong trauma. The American Psychiatric Association recently stated that “the evidence is clear that this level of trauma also results in serious medical and health consequences for these children and their caregivers.”  Separation inflicts trauma on adults too; parents suffer from being away from their children due to their decision to migrate.

The logic behind “zero tolerance” is to discourage migration by making conditions as miserable as possible for intending migrants – building psychological walls as well as the physical wall that Trump has pledged to build along the border with Mexico.  By ignoring the underlying causes of these movements of people, this approach is not only cruel but unlikely to be successful.  The concern is also misplaced, despite the increasing visibility of refugees and asylum-seekers in the media, as border apprehensions show a steep downward trend.

  •  The U.S. Congress has so far rejected solutions to the issue of family separation, such as creating larger guest worker programs, strengthening asylum courts, passing the DREAM Act, and demilitarizing responses to drug trafficking. Until the underlying causes of migration are addressed, Washington will be squandering its money prosecuting and causing lasting trauma for innocent children and parents.  Contrary to Trump’s claim that immigrants hurt U.S. culture, my research shows that immigrants are skillful at integrating into American life.  New pathways for legal immigration are the only way ahead to reduce undocumented migration.

 July 3, 2018

 * Ernesto Castañeda is an Assistant Professor of Sociology at American University and author of A Place to Call Home: Immigrant Exclusion and Urban Belonging in New York, Paris, and Barcelona (Stanford, 2018).

Deciding Asylum: Challenges Remain As Claims Soar

By Dennis Stinchcomb and Eric Hershberg

asylum-blog-graph

Graphic credit: Nadwa Mossaad / Figure 3, “Refugees and Asylees 2015” / Annual Flow Report, November 2016 / Office of Immigration Statistics, Department of Homeland Security

The exodus of children and women from the three countries of Central America’s Northern Triangle – El Salvador, Honduras, and Guatemala – is accelerating, but information gaps and institutional flaws are obstructing asylees’ access to legal protections and hindering equitable decision-making on their claims in the United States.  The United Nations has recorded a nearly five-fold increase in Northern Triangle citizens seeking asylum in the United States since 2008, a trend driven largely but not exclusively by a spike in child applicants.

  • Legal scholars agree that high-quality, verifiable data on forms of persecution experienced by migrants in their home countries better equip attorneys to establish legitimate asylum claims and inform the life-transforming decisions by U.S. immigration judges and asylum officers.  Accumulating evidence also indicates that deeper systemic challenges to transparent, unbiased processing and adjudication of asylum claims remain, with grave consequences for the wellbeing of Central American migrants with just claims for protection under international and U.S. law.

In a December hearing before the Inter-American Commission for Human Rights (IACHR), advocates presented immigration court data from U.S. jurisdictions dubbed “asylum-free zones” – large swaths of the map where low asylum approval rates prevail.  In Atlanta, Georgia, for example, U.S. government data show that 98 percent of asylum claims were denied in Fiscal Year 2015; in Charlotte, North Carolina, 87 percent were rejected – far above the national average of 48 percent.  The month before, the highly respected U.S. Government Accountability Office (GAO) issued a scathing report, citing variations in application outcomes across immigration courts and judges.  (See full report for details.)  Attorneys and advocates refer to this phenomenon as “refugee roulette,” an arbitrary adjudication process further complicated by the fact that many asylees’ fate is determined by Customs and Border Protection (CBP) officers who function as gatekeepers to the asylum system.  Border Patrol is an increasingly militarized cadre of frontline security officers whose members took the remarkable and unprecedented decision to publicly endorse the presidential candidacy of Donald Trump.

Accurate information on the conditions asylees face in their native countries is fundamental to getting fair treatment in the United States.  The barriers to due process and disparities in asylum outcomes have long been sources of concern, and the systemic flaws – and politicization of CBP processes – raise troubling questions about screener objectivity and the degree to which prevailing U.S. screening procedures conform to international norms.  That asylum claims made by many Central Americans are first considered by officers of institutions whose primary responsibility is to deport undocumented persons, rather than to protect refugees, signals a glaring misallocation of responsibilities.  The U.S. failure to accurately and efficiently adjudicate claims at all levels of the discretionary chain – from frontline officers to immigration judges – also undermines efforts to promote fair treatment of intending migrants elsewhere in the hemisphere.  Mexico’s overburdened refugee agency COMAR, for example, continues to struggle to provide requisite protections, even while reporting a 9 percent increase in applications each month since the beginning of 2015.  Meanwhile, the UN reports steady increases in applications in Belize, Nicaragua, Costa Rica, and Panama.  Citizens of the Northern Triangle states who have legitimate grounds for seeking protection as refugees stand the most to lose, but the consequences of institutional failure in the U.S. and neighboring countries’ asylum systems reverberate beyond individuals and families.  With virtually no government programs to reintegrate deported migrants, growing numbers of displaced refugees returned to Northern Triangle countries ill-equipped to receive and protect them will further complicate efforts to address root causes of migration throughout the region.

January 19, 2017

A workshop on Country Conditions in Central America & Asylum Decision-Making, hosted by CLALS and the Washington College of Law, with support from the National Science Foundation, examined how social science research on conditions in El Salvador, Guatemala, and Honduras can assist in bridging the gap between complex forms of persecution in the region and the strict requirements of refugee law.

This material is based upon work supported by the National Science Foundation under Grant No. 1642539. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of the National Science Foundation.

Central American Minors: Headed Home?

By Dennis Stinchcomb and Eric Hershberg

Two young girls at the U.S. Customs and Border Protection Nogales Placement Center. Photo Credit: coolload / Flickr / Creative Commons

Last year, two young girls at the U.S. Customs and Border Protection Nogales Placement Center during the height of its operation. Photo Credit: coolload / Flickr / Creative Commons

Legislative safeguards have protected from deportation most of the 68,000 unaccompanied children (UACs), almost all of them from the Northern Triangle of Central America, who were apprehended at the southern border of the U.S. last year – but the challenges are far from over.  This temporary reprieve comes despite warnings by the Obama administration at the height of the crisis – and U.S. embassy-supported education campaigns in El Salvador, Guatemala, and Honduras since then – that youth considering flight to the U.S. will be returned home.  Provisions of the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 have aided these Central America kids to legally remain in the U.S. by making them ineligible for expedited removal or voluntary departure until their cases are decided by an immigration court judge.  Attempts by the Department of Justice to fast track initial hearings have yet to result in expedited case closures, as judges typically issue continuances to children securing legal counsel and soliciting forms of deportation relief.  While it is still too early to predict case outcomes, several trends are evident:

  • Available data suggest that large numbers of UACs are benefiting from relief codified in U.S. immigration law, including asylum, Special Immigrant Juvenile Status (SIJS), and non-immigrant visas for victims of trafficking and other qualifying crimes. According to data from U.S. Citizenship and Immigration Services, approval rates for asylum applications submitted by minors have hovered around 80-90 percent for the past year.  (The bulk of applications of the most recent wave of arrivals have not yet been decided.)
  • More than 7,000 child migrants have been ordered deported between October 2013 and January 2015 for failing to appear in court, but their attorneys and advocacy groups have blamed an overburdened and resource-starved court system, pointing to documented instances in which clients were never notified of their hearing date or notices arrived late or were sent to the wrong address. In other cases children have been ordered to appear in court hundreds or thousands of miles away from where they have been placed in sponsor care.  With sufficient evidence, children who have received deportation orders in absentia may file motions to reopen their cases.
  • Access to legal representation continues to impact case outcomes. In fiscal years 2012-14, 73 percent of UACs with attorneys were permitted to remain in the country, compared to just 15 percent of children without representation.  According to federal data obtained by Syracuse University, as of October 31, 2014, less than one-third of UACs in pending cases had secured an attorney.

While the fate of these Central American kids hangs in the balance, so too do the legal protections that guarantee their day in court and their access to deportation relief.  An emboldened Republican-controlled Congress has resuscitated efforts to amend the TVPRA provisions protecting these children from expeditious return to their home countries.  Similar bills still under debate by the House Judiciary Committee propose tighter restrictions on the most commonly solicited forms of relief – asylum and Special Immigrant Juvenile Status.  Asylum seekers, for example, would face shorter filling deadlines and be required to wait for hearings in a “safe” third country.  A proposed revision to the hotly contested SIJS statute allowing abused, neglected, or abandoned children to reunite with a second parent in the U.S. would have serious repercussions for Central American UACs, many of whom are in the care of parent sponsors.  Meanwhile, a steady flow of new arrivals – 12,500 UACs and 11,000 family units since last October – are added to backlogged court dockets and increase the likelihood of a due process crisis.  Observers in the region and in Washington are acknowledging gingerly the possibility of a new wave of youth migration during the coming months, as conditions fueling the exodus from Central America remain acute.  The politics of such a renewed surge are complex, and may shape both the immigration policy debate in the U.S. and the prospects for Congressional approval of the administration’s request for $1 billion in development assistance for the Alliance for Prosperity in the Northern Triangle.

March 26, 2015

Ecuador’s Difficult Choice on Assange

Photo: Julian Assange by Ben Bryan (bbwbryant) | Flickr | Creative Commons

Many observers have portrayed President Rafael Correa’s decision to grant asylum to Wikileaks founder Julian Assange as an act of defiance – a gratuitous slap at the United States – and, because of Correa’s mixed record of respect for a free press, as a sign of hypocrisy.  How can a President who has prosecuted newspapers for revealing damaging information about his government, according to Correa’s accusers, now stand up as the defender of Assange’s right to publish hundreds of thousands of sensitive U.S. Government documents?

The lack of clarity on British and Swedish intentions made the decision difficult.  American officials have minced no words about their hopes to prosecute Assange, although none has stated what the charges would be.  Even U.S. Vice President Joe Biden has referred to him as a “high-tech terrorist.”  Former Republican presidential nominees Sarah Palin and Mike Huckabee have called for his execution.  (A former senior Canadian official said, “I think Assange should be assassinated.”)  The Swedish government, which seeks only to question Assange about allegations of sexual abuses (important offenses in Swedish law), has refused to conduct the interrogations in London or by video, or  to provide reassurances that he will not be extradited to the United States.  British officials at one point even threatened to enter the Ecuadoran Embassy in London, a flagrant violation of well-established principles of international law.

Correa’s ancillary agendas notwithstanding, the asylum decision would have been difficult for almost any country.  There is no evidence that Assange would not get a fair trial in the United States or that he would face the sort of abuse and torture that Bradley Manning – the alleged American source of the Wikileaks documents – has faced.  But the American silence on the charges Assange might face, the rhetoric tarring him as a terrorist and the lack of U.S. accountability for past abuses – the Obama Administration last week announced yet another decision to forego prosecution of U.S. officials involved in alleged torture – makes the absence of a pledge regarding extradition to the United States politically sensitive.  Ironically, the U.S., British and Swedish position risks thrusting them into the same ironic contradiction as Correa finds himself:  claiming to protect human rights, they may open the door to prosecution of a man who published leaked information – and who by any reasonable standard is an indiscriminate whistle blower but hardly an agent of espionage.  If their pursuit of Assange were to result in his exposure to U.S. prosecution related to the Wikileaks matter, these democracies would potentially risk being parties to a serious violation of fundamental principles of free expression.