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.

As Mexico “Absorbs” Central American Refugees, Record Numbers Reach the U.S.

By Dennis Stinchcomb

uac-family-unit-apprehensions_aula-01

The meeting of world leaders that President Obama convened on Tuesday to rally support for refugee resettlement and inclusion across the globe was good diplomacy but contradicts Washington’s policies even in the Americas.  At a meeting on the margins of the UN General Assembly, Obama thanked Mexico for “absorbing a great number of refugees from Central America,” yet the data make clear that Mexico is hardly absorbing refugees.  During the first seven months of 2016, as WOLA has reported, Mexico granted asylum to just under 1,150 Central Americans but deported over 80,000 others.  Meanwhile, far greater numbers of Central Americans have reached the U.S., principally women with children (whom U.S. Customs and Border Protection labels “family units”) and minors traveling without a guardian (“unaccompanied children”).  With one month remaining in Fiscal Year 2016, apprehensions of Central American women with children total over 61,000 – up 79 percent from FY15 – and are on pace to surpass the FY14 record.  Likewise, apprehensions of unaccompanied children have already exceeded the FY15 total, and September numbers will likely push the current tally of 42,000 just shy of the FY14 record.

This renewed influx comes despite the Obama administration’s multi-pronged strategy to deter unauthorized migration from the Northern Triangle countries of El Salvador, Guatemala and Honduras:

  • U.S. support for Mexico’s Southern Border Program has resulted in unprecedented numbers of both detentions and deportations of Central Americans in Mexico, yet the dramatic increases in arrivals to the U.S. and shifting points of entry – including an upswing in seaborne trafficking – suggests that the exodus from the Northern Triangle continues and that human smugglers have adapted to stepped-up enforcement measures by forging new routes through Mexico.
  • Ongoing raids by U.S. Immigration Control and Enforcement (ICE) authorities, which under the banner of Operation Border Guardian aim to roundup unaccompanied youth who had been ordered deported from the U.S. and have recently turned 18, have not stemmed the tide of new arrivals fleeing untenable circumstances in their countries of origin.
  • Despite a July 2016 expansion of the CAM Program for in-country processing of youth applications for refugee status and for others in Central America asserting that they are at risk of harm, the pool of beneficiaries remains miniscule. Whereas the program had received 9,500 applicants by mid-year, only around 270 had been resettled in the U.S. With a six- to eight-month processing period and room for only 200 applicants at a time at shelters that have been set up in Costa Rica, desperate Central Americans continue to turn to more efficient human smugglers.
  • Public messaging campaigns launched in the region with U.S. government funding, to warn Central Americans of the dangers involved in irregular migration and to dispel misperceptions regarding U.S. immigration policies, also appear fruitless, as outlined in a recent American Immigration Council report).

President Obama’s efforts to galvanize international action in response to forced displacement worldwide highlight his own administration’s shortcomings in addressing refugee flows closer to home.  Expedited hiring of border patrol agents and an increase in the number of beds at contract detention facilities, among other domestic measures, have enabled the administration to process large volumes of Central American migrants while avoiding the appearance of a “border crisis” akin to 2014.  Meanwhile, an emphasis on curtailing outflows from Central America (without regard to the justification of people’s decision to flee), detention (rather than absorption) in Mexico, and deportation in both Mexico and the U.S. has not been matched with analogous investments to address the needs of Central American migrants already in the U.S. who may have legitimate claims for asylum or other forms of protection.  Central American families and unaccompanied children, for example, now account for over one-fourth (26 percent) of the 512,000-case backlog in immigration courts, yet only 53 percent of families and 56 percent of unaccompanied minors have access to attorneys.  In failing to guarantee legal representation for these vulnerable populations the administration is sidestepping the same moral obligation to thoroughly vet and provide safe, inclusive communities for refugees that President Obama challenges other governments to fulfill.  Perhaps funding that is supporting Mexico’s strategy of detention and deportation could be better allocated to programs that ensure proper adjudication of asylum claims – in both Mexico and the U.S. – and to genuinely seek to absorb individuals and families who, through due process, are judged to qualify as refugees.

September 22, 2016

Tim Kaine: Boon for Latin America Policy?

By Tom Long*

Tim Kaine

Photo Credit: Disney | ABC Television Group / Flickr / Creative Commons

U.S. Presidential candidate Hillary Clinton’s vice-presidential nominee, Virginia Senator Tim Kaine, may help her politically in the November election, and his potential influence on U.S. policy toward Latin America could be extremely important over the long haul.  Though Kaine’s Latin American experience likely was a secondary consideration in his selection, it is consistent with the role of the office of the vice president that has emerged during the Obama Administration as a center for serious policy initiatives in the Americas.

  • Kaine spent nine months in El Progreso, Honduras, as a young man working at a high school founded by Jesuit missionaries; he learned Spanish there and frequently mentions the period as formative. His approach to the region and immigration seems anchored in a focus on human dignity and belies an understanding of the difficult circumstances many there face.  El Progreso is close to San Pedro Sula, which has been a center of the country’s staggering violence and emigration.  In the Richmond Times-Dispatch, Kaine wrote that when unaccompanied minors arrived to the U.S. border in unprecedented numbers, “I felt as if I knew them.”
  • As a member of the Senate Foreign Relations Committee, Kaine has developed a rare policy focus on Honduras. He has pressed the U.S. and Honduran governments on issues of human rights in the wake of the 2009 coup.  In 2013, Kaine urged Secretary of State John Kerry for stronger U.S. support for elections.  Just two weeks ago, he called on Honduran President Hernández for greater effort on justice in the killing of environmental activist Berta Cáceres.
  • Kaine has placed immigration policy at the confluence of foreign and domestic policy. He has pressed President Obama to halt “deportation raids targeting families and unaccompanied minors who have fled the rampant violence in Central America’s Northern Triangle.”
  • Kaine’s political rhetoric often reflects his Jesuit background, and his Catholicism-inspired references to social justice – and his warm welcome for Pope Francis – are likely to earn him an empathetic ear among many throughout Latin America.

Vice-presidential leadership for the Americas offers an important opportunity – and one that Tim Kaine, if elected, is likely to use wisely.  He has complained that Washington usually pays attention to Latin America only in moments of crisis, and has argued the region should get similar priority as China, Russia, or the Middle East.  He would build on efforts initiated by Vice President Joe Biden, who has chaired a “High Level Economic Dialogue” with Mexico and pushed for the $750 million “Alliance for Prosperity” in Central America.  Kaine would be an asset in relationships that often fuse international and domestic policy, slicing across the domains of myriad departments and agencies.  While Kaine’s personal interest and positive relationships don’t guarantee policy successes on migration, drug policy, citizen security, and development assistance as vice president, his language skills and reputation for treating colleagues with respect all but guarantee a warm reception from leaders of countries long aggrieved by U.S. highhandedness. 

August 2, 2016

*Tom Long is a Lecturer in International Relations at the University of Reading (UK) and an Affiliated Professor at the Centro de Investigación y Docencia Económicas in Mexico City.  He is the author of Latin America Confronts the United States: Asymmetry and Influence, published last year by Cambridge University Press.

Will Washington’s Attention to Latin America Last?

By Fulton Armstrong

Photo Credit: Prensa Presidencial Venezuela

Vice President Biden meets with Venezuelan President Maduro / Photo Credit: Prensa Presidencial Venezuela

U.S. President Obama, Vice President Biden, and Secretary of State Kerry gave Latin America increased priority in 2014, including at least two efforts to open channels to countries previously off their calling lists.  Issues combining domestic politics and foreign policy– such as immigration, Cuba, and drug policy – saw noteworthy breakthroughs.

  • President Obama’s highest profile action was his announcement in December that the United States and Cuba would normalize relations. He said he would travel to Panama in April for the Summit of the Americas – the venue of his pledge to seek a “new beginning” with Cuba in 2009 and his isolation over the Cuba issue in 2012.  Last May, his trip to Mexico and Costa Rica, where he met with Central American presidents, signaled a shift on counternarcotics strategy – downplaying militarized efforts – in response to the region’s concerns about surging violence.  His November announcement of executive measures on immigration, offering temporary legal status to millions of undocumented migrants, also steeped him in Latin America policy.
  • Vice President Biden greatly expanded his Latin America portfolio, at times as stand-in for Obama but also putting a deep imprint on policy. On an extended trip in June, he met with heads of state during the World Cup and attended a summit in Central America.  In November he participated in a followup meeting with the Honduran, Salvadoran, and Guatemalan Presidents hosted by the Inter-American Development Bank, where he announced U.S. measures to prevent another crisis involving migrant children as was seen last summer.  He met with and telephoned Latin American Presidents more than a dozen times over the year and, on the margins of Brazilian President Rousseff’s reinauguration last week, even met with Venezuelan President Maduro, with whom he agreed that it was time to restore ties.
  • Secretary Kerry traveled to the region several times – to Mexico, Panama, Peru, and Colombia – and met with Latin American Presidents and foreign ministers in Washington. Some critics judged his broad policy speeches as unexciting, but he clearly has confidence in his Latin America team, and sources say his support for the President’s initiative on Cuba was strong.

We Latin America watchers in Washington tend to complain that our region doesn’t get enough attention, but it’s clear that the Administration’s level of engagement in 2014 was deeper and more sustained than in years past.  Senior advisors at the National Security Council, Vice President’s office, and State Department – Ricardo Zúñiga, Juan González, and Assistant Secretary Roberta Jacobson, respectively – got their bosses’ to act despite the many competing demands in other regions occupying the front pages of U.S. newspapers.  Several ongoing processes promise continued senior-level attention in at least the first half of the new year.  The normalization process with Cuba could entail a visit there by Secretary Kerry, and preparations for the Summit of the Americas in Panama in April afford opportunities to give momentum to U.S. engagement – in addition to rebuilding U.S. credibility in the Summit process lost at the Summit in Cartagena in 2012.  Continued political crisis in Venezuela, nose-diving oil prices, progress in the Colombian peace talks, and the ever-evolving drug threat suggest 2015 will also be a challenging year.  For now at least, Washington’s senior team is engaged.

January 7, 2015

Executive Under-Reach: Migrants on the Margins of Reform

By Eric Hershberg and Dennis Stinchcomb

UAC SPONSOR PLACEMENT updated post-report-01

Graphic courtesy of the Center for Latin American & Latino Studies (CLALS)

President Obama’s long-awaited executive action on immigration has finally happened – with the anticipated political fireworks – and will benefit more than one third of the country’s undocumented persons. It is premature to offer predictions regarding how the dynamic will play out between a White House wounded by electoral losses last month and an emboldened Congressional opposition.  We can, however, take stock of who the administration’s measures have and have not affected.  Between 4 and 5 million people, a majority of them originally from Mexico, will be able to apply for work permits and secure protection from deportation for three years if they have been in the U.S. for five years or longer and have children who are either U.S. citizens or authorized residents.

The executive action is no modest change in policy, but it contains little good news for large numbers of undocumented persons and no good news for those his administration has already deported.  For the 250,000 U.S. citizen children whose parents have been deported over the past six years, it provides no comfort; there is no provision for the parents to return to raise their kids here.  Nor did the President’s measures offer more permanent relief to the roughly 280,000 Central Americans who have resided in the U.S. with Temporary Protected Status (TPS) following natural disasters in the region during the late 1990s and early 2000s.  Beneficiaries of those provisions will continue to pay roughly $500 every 12-18 months to renew their status. Other populations who have been here for well over a decade as stable members of the community also remain unaffected by the reforms.  No matter how long they have been here nor how good they have been – law-abiding, tax paying, churchgoing or generally nice – they will not be eligible for relief if they do not have children.  The administration’s action was strictly cast as a family-focused initiative, and family, in this instance, means children with authorization to be in the U.S.  Spouses do not count.  An important new population of migrants was also left out of the reform: the unaccompanied children, largely from violence-torn countries of Central America’s Northern Triangle, whose surge across the border received great media attention during the summer of 2014. Indeed, the president’s speech to the nation made no mention of that humanitarian crisis and made clear that those who come across now should expect to be deported.

The 68,000 children who trudged across the border during this fiscal year remain in limbo.  According to data from the Department of Health and Human Services’ Office of Refugee Resettlement, over 55,000 have been placed with immediate or extended-family sponsors in the U.S while their removal cases are pending in immigration court.  Metropolitan areas with long-established Central American communities have witnessed the largest influx of unaccompanied children.  The Baltimore-Washington metropolitan area alone, for example, received approximately 6,500 unaccompanied minors during the past fiscal year.  Once placed in sponsor care, these kids’ prospects for remaining in the U.S. – and their well-being while awaiting a court decision – are largely dependent upon local-level policies.  While the Obama administration has taken limited steps in recent months to provide legal counsel for these minors, funding for direct legal representation and a range of other educational, health, and social services is increasingly coming from those state and local governments that traditionally support immigrant-friendly humanitarian programs. This support is crucial, as demonstrated by a Syracuse University study that found that 85 percent of unaccompanied children appearing in court without an attorney are ordered to leave the U.S.; with an attorney, however, a child’s odds of remaining in the U.S. increase from 15 to 73 percent.   In cities such as New York, local funds are also being channeled through advocacy networks to support access to services beyond the courtroom, from mental health screenings, to vaccinations, to assistance with school enrollment.  Other local communities may not follow suit, particularly in the wake of the newly announced executive action, which in the short-term will strain the already taxed resources of local governments and advocacy groups.

December 11, 2014

Executive Action, Central American Presidents and the Fate of the Unaccompanied Minors

By Eric Hershberg

Image courtesy of Center for Latin American and Latino Studies

Image courtesy of Center for Latin American and Latino Studies

Speculation abounds in Washington as to the content of the long-awaited Executive Actions that the Obama administration has promised to decree amidst the failure of Congress to enact comprehensive immigration reform.  Having resisted pressure from Latino constituents and immigrant rights advocates to act before the mid-term election, in a vain effort to protect vulnerable Democratic incumbent Senators who lost their bids for re-election anyway, the administration now seems poised to announce new measures as early as the end of this week.  Press accounts based on leaks from within the Executive Branch speculate that as many as five or six million undocumented migrants may see their vulnerability to deportation diminish as a result of the impending policy changes.  Barack Obama’s Republican antagonists are fulminating about the consequences if he makes good on his promise, with some pondering ways to shut down the government or impeach the President, and others, fearful that a particularly intemperate response could damage the Republican brand, particularly given the need to attract at least a third of the Latino vote to the candidacy of whomever is chosen as the 2016 GOP presidential candidate, allude to the likelihood of court challenges to what they deem an extreme instance of Executive overreach.

One unanticipated but welcome measure that has been announced publically is that children deemed vulnerable to the violence in the three Northern Triangle countries of Central America will be able to apply to be reunited with parents residing legally in the U.S.  This policy shift, announced during the visit to Washington last week by Presidents Otto Pérez Molina, Salvador Sánchez Ceren and Juan Orlando Hernández, is among the administration’s responses to the surge of unaccompanied minors and families across the U.S.-Mexico border over the past year or so: 68,000 unaccompanied children were detained at the border during Fiscal Year 2014.  For their part, together with Vice President Joseph Biden at the Inter-American Development Bank, on November 14 the three Central American Presidents pledged to launch an Alliance for Prosperity in the Northern Triangle, with the objective of overcoming the conditions of economic misery, social vulnerability and institutional deficiencies that propelled the wave of migration of recent years and that have the potential to motivate a renewed flow of arrivals.  Biden offered an enthusiastic endorsement, but aside from reminding those in attendance that the administration had requested $3.7 billion from the Congress in response to last summer’s “crisis,” he did not offer specific commitments of resources, which of course are unlikely to be forthcoming from the strong Republican majorities in both chambers of Congress.  Nor did the Presidents make tangible commitments to build states capable of protecting the basic rights to life chances and security that are so remarkably absent for many of their countries’ inhabitants.

Assessing the likelihood of continued surges in migration requires understanding the factors that propelled the flow of people across the border in recent years.  A newly released study* by the Center for Latin American and Latino Studies, funded by the Ford Foundation, provides essential data and analysis on the drivers of migration from El Salvador, Guatemala and Honduras and on the fate of children and families who have arrived in the U.S. from those countries over the past year.  A core message of the report is that the absence of fundamental pre-conditions for living their lives with dignity – education, jobs, and most of all protection from violence – compels people to migrate rather than seek to better their lot in their communities of origin.  In the long run, only dramatic reforms undertaken by Central American states will build the institutions needed to address the basic needs of their populations and to provide the minimal levels of security needed for them to live their lives in dignity at home.  Perhaps little that was agreed upon during the Presidents’ visit to Washington gives cause for great optimism, but it is our hope that the CLALS study points the way toward solutions to the region’s crisis and toward ensuring the protection of those who endured the perilous journey to the U.S. border and now find themselves in limbo in the U.S.

 *To download a free copy of the full report, click here.

November 19, 2014