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.

Egypt Policy – Latin America Style

By Fulton Armstrong

U.S. Department of State Headquarters | Wikimedia Commons

U.S. Department of State Headquarters | Wikimedia Commons

We who follow U.S. policy in Latin America shouldn’t be surprised to see Washington’s policy toward Egypt drift from support for democracy to support for the status quo ante.  President Obama’s 2009 speech in Cairo reaching out to Muslims – calling for an end to the “cycle of suspicion and discord” – came just six weeks after he told the Summit of the Americas that he wanted “an equal partnership” with the hemisphere and sought “a new beginning with Cuba.”  When 30-year President Hosni Mubarak stepped down in 2011, the Administration eagerly linked Egypt to the “Arab Spring” and, despite concerns about the Muslim Brotherhood roots of Egypt’s first democratically elected president, tried to make the relationship with Mohamad Morsi work.  Over time, however, Morsi – successor to an undemocratic regime in an undemocratic country with no democratic traditions and no democratic institutions – was accused of being undemocratic.  The estrangement grew so deep that the Obama Administration still cannot bring itself to call the July 3 coup against Morsi a coup, and Secretary of State Kerry saw fit to refer to the military takeover as “restoring democracy” even as the Army was firing on unarmed crowds.

To Latin America watchers, this chronology is reminiscent of U.S. policy in our own hemisphere.  The case of Honduran President Mel Zelaya is clearest.  The Honduran military removed Zelaya– in his pajamas – from his home and country in June 2009 for proposing a referendum that, the putschists claimed, violated the Honduran constitution.  The Obama Administration’s nominee to be Assistant Secretary of State at the time, Arturo Valenzuela, testified that the action was, in his opinion, a coup, but the State Department never categorized it as such and, despite rhetoric committing to restore Zelaya, the Administration let the interim regime consolidate power.  Amidst a state of emergency, media closures, and other irregularities, the State Department also gave its blessing to elections held several months later.  Zelaya’s rhetoric before the coup was caustic, and he squandered political capital in needless confrontations, but he never threatened Honduran “democracy” or violated human rights as the interim regime did.  Nor did he preside over a steady deterioration of security, civil rights, and the economy as the current government has.  Yet, ironically, the Obama Administration has never set the history of the coup straight – just as the Bush Administration never rectified its disastrous support for the 2002 coup against Chávez in Venezuela.

The excesses of some leaders, like Zelaya and Chávez, make supporting or turning a blind eye to a coup very tempting.  But Washington has also shelved its moral outrage when much less provocative presidents – democratically elected but progressive-leaning – have been removed from power, if not with a gun at their head.  The “constitutional coup” against President Lugo in Paraguay last year is the most recent example.  The gap between U.S. rhetoric about democracy, rule of law, and due process on the one hand and its tangible actions on the other has a number of causes. 

  • American “exceptionalism” – the sense that U.S. success gives it a right to judge others and intervene even when national interests are not at stake – sometimes leads Washington to over-extend and make rash decisions.
  • Eagerness to act quickly – to appear decisive – often makes policymakers confuse the symptoms of problems, which seem amenable to quick solutions, and the essence of the problems themselves.  Policies address the short-term while neglecting the strategic.
  • Washington lobbies – the pro-Israel lobby in the case of any matter in the Middle East and the Cuban-American lobby in Latin America – are able to dominate U.S. perceptions of events, pushing administrations into a corner. 
  • Administrations embarrass themselves when they throw around words like “Arab Spring” and “democracy.”  When the inevitable bumps in the road occur, they act betrayed rather than admit they got carried away by wishful thinking. 
  • Double-standards –the expectation that progressives succeeding authoritarians will be perfectly democratic and flawlessly inclusive – make it difficult for Washington to avoid prematurely throwing a potential ally overboard. 
  • Another factor, and potentially the most important, is that the U.S. government builds deeper relationships with elites and the security services that do their bidding than with any other forces.  During the Bush Administration’s “War on Terror,” the U.S. Government entrusted Egypt with extremely sensitive operations, including the interrogation (and alleged torture) of suspected terrorists, and Washington relies on Latin American security services to prosecute the “war on drugs.” 

When U.S. interagency committees discuss how to respond to crises, the departments and agencies with the deepest ties in the country under discussion claim more influence over events there than anyone else – and win most policy debates.  The problem is that their ties are mostly to political and economic elites – or the military and intelligence services that back them – which are rarely agents of change.  Washington winds up allied with forces that suppress the new voices essential for the “springs” and “democracies” that it says it wants.