U.S. Immigration: Lacking Lawyers, Newcomers Join the Undocumented

By Dennis Stinchcomb

Immigration court backlog

Pending cases from the Northern Triangle in U.S. immigration courts. These cases now account for over 53% of the total backlog. / Note: FY 2018 data is through July 31. / Data source: TRAC, “Immigration Court Backlog Tool,” http://trac.syr.edu/phptools/immigration/court_backlog/.

As Central Americans swell the backlog of cases in U.S. immigration courts, the tens of thousands of them who do not have lawyers are joining the ranks of the country’s undocumented population.

  • The immigration court system lacks the resources to keep pace with the influx of unaccompanied children and families from the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras. The backlog of cases has more than doubled since 2013 – from 350,000 to over 764,000 as of August – with cases involving people from these three countries now accounting for more than half of them.  The wait for a hearing is now several years, and pro bono or low-cost attorneys are overburdened.
  • Many thousands of other newcomers – lacking information and the ability to overcome linguistic and cultural barriers and fear – are not looking for legal assistance, and they remain unaware that representation is critical to their chances of legally staying in the United States. Migrants without an attorney are far less likely to appear in court, and many – nearly 40 percent (or 103,000) of all Central Americans whose cases were filed in 2013-17 and have been decided– are ordered deported “in absentia” just for failing to appear at a scheduled hearing.  Immigrants with an outstanding removal order who are apprehended are subject to expedited deportation without judicial review, meaning that – again, without a lawyer – they will be returned to their home countries without ever having the legal merit of their claims evaluated.

Nonprofit community-based organizations across the country are mobilizing resources – often in collaboration with local governments and pro bono partners – to address these people’s legal needs, but a report* by CLALS reveals that access to counsel varies widely.

  • Access remains inadequate even in large receiving destinations like the Washington, DC, metropolitan area, where robust legal service infrastructures have developed in response to decades of immigration. In less traditional destinations, like North and South Carolina, only around a quarter of juveniles are represented in immigration proceedings.  In addition to geographical disparities, newcomers face differing odds of securing an attorney depending on their nationality.  Less than half of Central American minors nationwide have an attorney.  Based on a review of decided cases initiated in 2013-17, Salvadoran juveniles were more than twice as likely to be represented than their Guatemalan and Honduran counterparts, probably a reflection of the extent their communities are organized.

President Trump is justified in claiming that the immigration courts are inefficient – cases take an average of almost two years – but his proposal (tweeted on June 24) is to restore “Law and Order” and to “immediately, with no Judges or Court Cases, bring [migrants] back from where they came.”  His deeper dissatisfaction appears to be with a legal process that requires the impartial application of U.S. law – which for the majority of Central Americans fortunate enough to have an attorney results in a grant of legal status.  While this outcome may be unacceptable to the president, many localities across the United States have recognized the social and economic costs of destabilizing families and communities, and of depriving immigrant community members of due process.  Trump may hope that denying due process will dissuade individuals from entering or remaining in the United States, but the crisis in the U.S. immigration adjudication system is likely to remain serious, and tens or even hundreds of thousands more newcomers are likely to join the millions of immigrants already living in the shadows.

October 16, 2018

*The full report, “Newcomer Central American Immigrants’ Access to Legal Services,” is available for download here.  No registration is necessary.  The report is the first in a series generated as part of the project by CLALS in collaboration with the University of Houston, “The Impact of Central American Child and Family Migration on U.S. Communities,” led by Eric Hershberg and Jodi Berger Cardoso.

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.

Mexico: Deepening Credibility Crisis

By Fulton Armstrong

Buitrago GIEI

Expert Angela Buitrago during the presentation of the initial GIEI report last October. Photo Credit: Comisión Interamericana de Derechos Humanos / Flickr / Creative Commons

Last week’s report on the disappearance of 43 Mexican students from the tiny village of Ayotzinapa left many questions unanswered about events on the bloody night of September 26-27, 2014, but it left no doubts about the depth of the corruption at the local and national level swirling around the youths’ tragic deaths.  The Mexican government – recipient of more than $2 billion in U.S. security assistance in the last eight years – not only produced a bogus report last year, based on tortured and otherwise impugnable sources, to divert attention from the tragedy; it also actively impeded the work of the Interdisciplinary Group of Independent Experts (GIEI), operating under the aegis of the Inter-American Commission on Human Rights, that produced the new report.  GIEI members documented the witness-tampering, obstructionism, and overall lack of cooperation of the administration of President Enrique Peña Nieto.  As the public presentation of the report wrapped up, the massacre victims’ families and supporters – some holding signs demanding to know ¿Dónde están?” – made clear their fear that the government will again sweep the case under the carpet and chanted to the experts, ¡No se vayan!”

Many details of the kidnapping, torture, and execution of the 43 youths, who were studying to be teachers, probably will never be known because much of the evidence has been tainted or destroyed.  The GIEI, however, pieced together a largely verifiable explanation of events in which local police, Federal Police, and the Army went on a bloody rampage after the students commandeered buses, as they had on other occasions with the tolerance of their owners, to transport classmates to a protest the following day.  The authorities tracked the students’ movements, set up roadblocks, systematically terrorized them, and summarily executed those who escaped and tried to tell of the atrocities.  The cover-up started immediately, culminating four months later in a report by the Office of the Attorney General (PGR) – one of Washington’s closest partners in curbing narcotics-related crime and violence – falsely claiming the students were mixed up in struggles among narcotraffickers.  The GIEI demonstrates that there is no way a serious PGR investigation did not know otherwise.

  • International and domestic reaction to the report has been strong, but Peña Nieto’s reaction has been low-key. (He also made headlines last week in proposing the decriminalization of marijuana.)  In several Tweets, the President thanked the GIEI; promised that the PGR will “analyze the complete report to improve its investigation of the tragic events”; and pledged that the PGR “will continue working so that there is justice.”  The U.S. Department of State issued a statement saying that “we trust the Mexican authorities will carefully consider the report’s recommendations.”

Peña Nieto cannot escape personal responsibility for the scandalous cover-up and obstructionism – he promised a full accounting long ago – but the GIEI report indicts much more than the presidency.  From the rural police and Army officers on the scene to the highest levels of law enforcement and the military command in Mexico City, the violence against the students has been neither admitted, condemned, nor punished, reinforcing Mexico’s longstanding culture of impunity.  The PGR’s report was tainted by deliberate falsehoods as well as the vicious forms of torture employed to exact false testimony from “witnesses.”  (Other torture stories, including an incident in which the Minister of Defense apologized for Army and Police torture of a woman in prison, are increasing in frequency.)  The U.S. Department of State’s human rights report, released two weeks ago, criticizes Mexico for its “impunity for human rights abuses,” but Washington also needs to ask whether the $2.1 billion of “Mérida Initiative” assistance it has provided to “help Mexico train and equip its law enforcement agencies, promote a culture of lawfulness, [and] implement key justice reforms” has been a good investment.  The U.S. Senate has finally confirmed the new U.S. Ambassador to Mexico, one of the architects of State Department’s implementation of the Mérida Initiative, and it stands to reason that she will demand some accountability.

May 2, 2016

U.S.-Mexico: Border Liaison Groups—the Bread and Butter of Cooperation

By Carolyn Gallaher and David Shirk

"Little Road, Big Intersection" Photo credit: “Caveman Chuck” Coker / Foter / CC BY-ND

“Little Road, Big Intersection” Photo credit: “Caveman Chuck” Coker / Foter / CC BY-ND

Drug traffickers often find ingenious ways to get their product across the U.S.-Mexico border, but cooperation among Border Liaison Officers can often stop them.  In Mexicali, one trafficker used a pneumatic cannon attached to his truck bed to shoot packages of marijuana across the border for pickup.  After some surveillance, Border Patrol caught the truck in action.  Agents took down the license plate number and called an officer in the Mexicali police department, who looked up the number, tracked down the truck’s owner, and made an arrest.  Border Patrol agents knew who to call in Mexicali because they belong to the same border liaison group.  Although they receive little public attention, border liaison groups are a crucial part of the cooperative infrastructure between the two nations.  They allow cooperation to continue during, and in spite of, political transitions, diplomatic imbroglios, and other shifts in bilateral relations.

Border liaison groups are semi-formal organizations in which officers cooperate on policing cross-border crimes such as auto theft, low-level drug crimes, and smuggling.  They are usually organized and maintained by law enforcement officials.  The San Diego Police Department, for example, used to have a full team of officers whose full-time job was to liaison with officers in Mexico.  Membership in border liaison groups is not compulsory, however, and there are no restrictions on which agencies for which a member must work.  Groups usually include a mix of local, state, and federal officials. And meetings are typically held in informal places like restaurants, barbeques at members’ homes, or at organized events, such as boxing matches and softball games.

Border liaison groups facilitate cooperation in a number of ways.  In a structural sense, they help individuals navigate the other side’s bureaucracy – i.e. identifying which agency is in charge of a particular issue, and who in the agency you should call.  They are also fundamental for establishing trust.  In a context where corruption is an ever-present concern, border liaison groups give members a chance to get to know one another, and to discern potential partners’ trustworthiness.  A member of the Baja state’s preventive police force (known by its Spanish acronym PEP) told us, for example, that officers often use the “gut test.”  You only work with someone your gut says is “ok.”  (A California law enforcement officer told us it was similar to the “gut check” he used when meeting his teenage daughters’ suitors.)  Officers also use more tangible tests.  It is not uncommon to share a piece of information and track what happens with it.  If the information is used appropriately, the agent initiating the test may decide to share more substantial information.

One of the biggest threats facing border liaison groups is funding.  Budget cuts in California, for example, have led several law enforcement agencies to reduce liaison positions, or they have grafted liaison duties onto established jobs.  Another problem is replicating these groups in non-border areas.  The Cook County Special Investigations Unit in Chicago, for example, told us “we are the border,” noting that perpetrators and victims of crime in the city are often Mexican.  Without contacts on the other side, however, the unit can only communicate through official conduits in Washington (e.g., the FBI or Immigration and Customs Enforcement, ICE) – a cumbersome process that most officers avoid.  Indeed, the sorts of information border liaison group members share – drivers’ license numbers, last known addresses, known associates – are too time-sensitive for formal channels to be of use.  The recent arrests of high-level kingpins in the Zetas and Gulf cartel tend to get widespread media attention, but the daily work by law enforcement officers is often just as important. 

Carolyn Gallaher is a professor in the School and International Service at American University.  David Shirk is a professor in the Political Science Department at the University of San Diego.

This project was supported by Award No. 2011-IJ-CX-0001, awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect those of the Department of Justice.