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.

El Salvador: Memory, the persistent discomfort

By Héctor Silva Ávalos

Mural that was removed from the Metropolitan Cathedral under Archbishop Escobar Alas / Photo credit: J. Stephen Conn / Foter / CC BY-NC

Mural that was removed from the Metropolitan Cathedral under Archbishop Escobar Alas / Photo credit: J. Stephen Conn / Foter / CC BY-NC

The sudden closure of the Legal Aid Service – Tutela Legal – of the Archbishop of San Salvador appears to be a massive blow to efforts to hold human rights violators and war criminals from the civil war accountable for their deeds.  Without previous notice or warrant, workers arrived at their offices on September 30 to find new locks on the doors and private guards blocking the entrance.  That same day some of the workers claimed to have discovered evidence indicating that Monsignor José Luis Escobar Alas, the Archbishop, had long before decided to close Tutela.  The office was opened in 1982 by Mons. Arturo Rivera Damas to fulfill a project designed by his predecessor, Mons. Óscar Arnulfo Romero, the Archbishop killed two years earlier during mass by a death squad and who is now under consideration for sainthood by the Vatican.  It holds one of the most detailed archives on the repression, crimes and human rights violations committed during the Salvadoran war, mainly by state-sponsored agents.

Mons. Escobar Alas has surprised observers in the past.  In late 2011, he ordered the removal of a mural by a popular Salvadoran artist from the Metropolitan Cathedral without any explanation to the artist or to the church’s large congregation.  The mural commemorated the earliest attempts at a negotiated settlement to the war.  Facing an outcry, Escobar Alas claimed the mural was Church property and that the Church was entitled to do with it as it pleased.  The same tone was evident after the Tutela closing as protests came not just from a good number of Catholics but from the Ombudsman’s office, the President of the Republic and 258 US and Salvadoran scholars who ran an ad in a major newspaper.  The Archbishop and his spokesmen provided at least three different versions of the event, saying alternately that Tutela was closed because it had already served the purpose for which it was created in the war years; it was closed to give its spaces to an ad hoc commission (with an unclear mandate and authorities); and that the Church had encountered financial wrongdoings in Tutela so grave that it had to close.

The closure happened at a time of important progress in human rights accountability.  At the center of it all was access to Tutela’s archives, some 50,000 files about the infamous 1980s – potentially crucial evidence in ongoing or upcoming judicial processes that Salvadoran elites have long tried to keep under wraps.  For the first time in a decade, last month the Attorney General’s office made public its intention to open a special unit committed to review war massacres such as the one in El Mozote, where some 1,000 peasants were killed by a U.S.-trained elite battalion.  Also, for the first time since the early post-war period, an independent Constitutional Chamber of the Supreme Court of Justice agreed to hold a hearing on the admissibility of a case under the Amnesty Law, the legal provision that has prevented many cases from being brought to justice.  And for the first time, there is a real chance for a Spanish court to address the murder of six Jesuit priests and their two aides after one of the accused in that massacre, a colonel, was convicted and imprisoned in a U.S. jail pending extradition to Madrid.  In all of these legal cases, the files held by Tutela Legal would provide crucial documentation to prosecutors.  The only credible explanation for the closing of the service is that pressure was brought to bear on the Archbishop by interests that wish to block access to this important body of evidence in the event that they are unable to prevent trials from opening. 

The ad hoc commission that the Archbishop said will be formed will include members with credibility – including Father José María Tojeira, former Jesuit envoy for Central America, and Mons. Jesús Delgado, Archbishop Romero´s biographer – and may hold some promise.  But the vagueness about its authority and technical questions, including the legal admissibility of Tutela files as the chain of custody is broken, raise serious doubts.  Whatever happens, the many Salvadorans who believe in the healing power of memory – and accountability – will need to remain constantly vigilant.  The same memory has been a persistent discomfort to some Salvadoran elites, who have long thwarted such efforts.