Deciding Asylum: Challenges Remain As Claims Soar

By Dennis Stinchcomb and Eric Hershberg

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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.

Child Migrants: Deepening Challenges

By CLALS Staff

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A surge in the number of unaccompanied children fleeing criminality, family problems, and violence in Honduras, Guatemala, El Salvador and Mexico underscores the personal tragedy of undocumented immigrants – they escape old threats only to face new ones – but the issue so far has sparked only the usual partisan acrimony in Washington.  According to U.S. government sources, the number of child migrants reaching the United States has increased 92 percent over the past year.  Some 47,000 have arrived since last October, and a draft document by the Department of Homeland Security speculated the figure could reach 90,000 by the end of the fiscal year.  (Only 5,800 children arrived alone each year 10 years ago.)  Mexican children still outnumber others, but the current surge is coming from the northern-tier countries of Central America.  Polls conducted by the UN High Commission for Refugees indicate that about half of these children are driven by criminal insecurity; 21 percent by abuse and other problems in the home; and the rest by other forms of violence.  The influx of these refugee migrants is not a strictly U.S. phenomenon: Mexico, Nicaragua, Costa Rica and Panama have seen a 435 percent increase in child arrivals from the northern tier since 2012 as well.  The UNHCR has made an urgent plea for assistance.

President Obama last Monday declared the problem was an “urgent humanitarian crisis,” and he directed the delivery of aid to house and provide care to the children, who remain in government custody while relatives in the United States are located or other solutions are planned.  The White House also announced an initiative to assign legal advisors to those under 16 who are facing deportation but are not in government custody.  Republican critics reacted forcefully.  Texas Senator Ted Cruz said the crisis was a “direct consequence of the President’s illegal actions,” including allegedly lax enforcement of immigration law.  The Chairman of the Judiciary Committee in the House of Representatives called it an “administration-made disaster.”

Shifts in immigration numbers traditionally have been a function of “push” factors (poverty, violence and other problems) in sending countries and of “pull” factors in the United States – particularly the perception that safely entering the country and finding work is easy.  The Obama Administration’s aggressive deportation policies – physically removing about two million undocumented migrants – arguably have reduced the “pull” over the past six years, and it seems premature to conclude that the Administration’s recent rhetorical shift has shined a bright green light as far as Honduran hamlets.  That the influx is occurring in countries other than the U.S. provides further evidence that local push factors (as the UNHRC posits), and not Obama Administration policies, are the most credible cause of the surge, in spite of the fact that criminality and violence in Central America’s northern triangle have not shown a commensurate increase during this period.  Regardless, predictable demagoguery around this growing crisis probably will further complicate the Administration’s efforts to carry out those few progressive steps it has launched by Presidential order, including programs to normalize the status of “Dreamers” – undocumented migrants’ children eager to overcome the stigma and obstacles to citizenship.  The approach of mid-term elections in the United States promises that this humanitarian crisis will sustain more name-calling and political paralysis in Washington.