The Trump administration has frequently argued that the increase in the number of families and children fleeing violence in their countries of origin and seeking asylum at the U.S.-Mexico border is a result of “loopholes” in U.S. immigration laws. This is a distortion of the reasons why an increased numbers of families and children are seeking protection in the United States, and is not an accurate characterization of the U.S. asylum process.
There has indeed been a sharp rise in asylum seekers from Central America’s Northern Triangle region (Honduras, Guatemala, and El Salvador). U.S. Citizenship and Immigration Services (USCIS) reports that more individuals from the Northern Triangle region sought affirmative asylum in the United States between 2013 to 2015 than in the previous 15 years combined.
WOLA has been tracking violence and migration in Central America for nearly 15 years. Based on this experience, here are seven facts that are fundamental to understanding the rising number of asylum requests by Central American migrants.
1.) The number of asylum requests by Central Americans is rising because Northern Triangle countries are experiencing record levels of violence.
- While the total number of migrants apprehended at the U.S.-Mexico border is near its lowest level since the early 1970s, the number of apprehended unaccompanied children and families is again on the rise after a dramatic drop in the months following Trump’s inauguration. This is a vulnerable population who, for the most part, are deliberately seeking out U.S. border security authorities and asking for protection. Affirmative requests for asylum of individuals from Guatemala, El Salvador, and Honduras have increased by 25 percent in fiscal year 2017 compared to 2016.
- These people are fleeing for a reason. As White House Chief of Staff John Kelley once put it, the mass migration of children from Central America to the U.S.-Mexico border primarily consists of “[parents that] are trying to save their children.” The countries of El Salvador, Guatemala, and Honduras are facing unparalleled levels of violent crime, with El Salvador and Honduras ranking among the top five most violent countries in the world.
2.) Central Americans who cite fear of generalized violence in their asylum applications are not making a baseless claim—courts have found that, under the very terms of U.S. asylum law, applicants fleeing gang violence and other threats qualify for protection.
- U.S. asylum law applies to those who have a well-founded fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Those fleeing generalized crime and violence in their home country do not easily fit into these categories. Nevertheless, at times U.S. immigration judges have interpreted this law so as to grant asylum to Central American migrants who can demonstrate “a well-founded fear of persecution” within the standards described above, or who qualify for protection under the UN Convention Against Torture.
- Due to the way that Central American gangs operate, in many cases women and children are targeted by these criminal groups precisely because they are women and children, which U.S. courts have repeatedly interpreted as them being persecuted due to “membership in a particular social group.”
- Children and young adults are particularly vulnerable to death threats, as local gangs often try to forcibly recruit them, extort them, or in the case of girls, pressure them into relationships with gang members (see this short video series featuring Central American children who fled their home countries because of threats to their lives). Women and underage youths are attractive recruits for gangs because they can draw less attention from authorities when carrying out tasks such as smuggling drugs and weapons, or collecting extortion payments. Others may face persecution from gangs on account of their sexuality or gender, their religion, their resistance to gang activity, (e.g., refusing to pay extortion fees), or because one of their family members has ties to a gang. All of this can form the grounds for an asylum petition, as applicants are not fleeing “generalized” crime and violence in their home country.
- Children and families who feel threatened flee their communities, often heading for the safety of the United States, because they have little confidence that corrupt police forces or other institutions can protect them. UNHCR interviews with Central American women seeking protection in the United States found that “the women consistently stated that police and other state law enforcement authorities were not able to provide sufficient protection from the violence.”
3.) Favorable outcomes for asylum applications from Central America largely depend on the immigration judge hearing the case and access to legal assistance.
- Although many Central American families are fleeing similar situations, there’s a vast difference in how their cases are decided depending on the judge and the location of the court, according to an analysis of asylum decisions made by U.S. immigration judges. Whereas judges in New York grant asylum in more than 75 percent of the cases, in Atlanta almost 90 percent of asylum requests are denied. These disparities suggest that whether or not asylum is granted has less to do with the merits of a person’s case, and more to do with individual judge and where the case is heard.
- A successful asylum application also largely depends on access to legal counsel. A 2015 study by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) showed that without legal representation, only 1.5 percent of women with children who had passed their credible fear interviews were given asylum in the United States. A recent study by TRAC also showed a concerning increase in the number of denials of asylum claims as well as in the number of asylum seekers handling their cases without legal representation. As the administration pushes to expand detention for asylum seekers, their access to legal counsel will be further limited.
4.) U.S. agencies have not collected strong evidence showing that the U.S. asylum system is “currently subject to rampant abuse and fraud,” as stated by Attorney General Jeff Sessions in remarks to Congress on Oct. 12, 2017.
- Federal agencies have not collected data on the extent of possible asylum fraud, according to a 2015 report by the United States Government Accountability Office. That same report found that U.S. Citizenship and Immigration Services and the Executive Office for Immigration Review have the tools they need to investigate fraud cases, although they lack a system for regularly assessing “fraud risks across the asylum process.”
- A former immigration judge also recently challenged Session’s claim, noting all of the tools at the disposal of judges and DHS trial attorneys to determine evidence of potential fraud.
5.) Passing the “credible fear” test is not an “easy ticket to illegal entry in the United States,” as stated by Attorney General Sessions on Oct. 12, 2017.
- Asylum seekers must pass what’s known as a “credible fear” interview conducted by U.S. Citizenship and Immigration Services asylum officers in order to determine whether the applicant qualifies for an asylum hearing. Far from being an “easy ticket” to life in the United States, the “credible fear” test is just the first step in a series of obstacles faced by asylum seekers. In fact, the bar for passing the “credible fear” assessment is arguably already quite high when its original intent was to demand a low threshold of evidence from applicants.
- Interpreting an asylum applicant’s failure to show up in immigration court as admission of a fraudulent claim is problematic for other reasons. Reports have shown that applicants can fail to show up for a wide range of reasons including that they never received notice of their appointment in the mail or it was sent to the wrong address, that they received inadequate information from U.S. officials when they were released at the border after processing, and lack of access to legal counsel. Furthermore, several studies have found that, contrary to Sessions’ assertions, many Central American asylum applications are rooted in legitimate claims. According to the United Nations High Commissioner for Refugees’ (UNHCR) analysis of the screenings conducted by U.S. asylum officers, over 80 percent of women from El Salvador, Guatemala, Honduras, and Mexico who were screened on arrival at the U.S. border “were found to have a significant possibility of establishing eligibility for asylum or protection under the Convention against Torture.”
6.) There is no evidence that criminal groups like the MS-13 are taking advantage of the U.S. asylum or immigration system to place gang leaders in the United States.
- Of all unaccompanied minors apprehended at the southwest border since 2011, 0.02 percent were either suspected or confirmed to have ties to gangs in their home country, according to U.S. Border Patrol Acting Chief Carla Provost. That’s 56 minors out of 250,000.
- The MS-13’s membership makes up less than one percent of all criminally active gang members in the United States and Puerto Rico, and there is no indication that the number of MS-13 members in the United States has increased in the past few years.
- While there have been cases showing that the MS-13 leadership in El Salvador has been in contact with “cliques” in the United States, there is no evidence that criminal groups like the MS-13 are taking advantage of the flow of unaccompanied minors to place gang leaders in the United States. To reiterate: no federal agency or academic institution has analyzed or provided data showing that the surge of Central American migrants includes a significant number of youths tied to gangs.
- Central America’s current struggle with gang violence can be traced, in part, back to U.S. policy. Between 1996 and 2002, the United States returned thousands of convicted criminals to politically and economically fragile countries in Central America. Gang members deported from Los Angeles took advantage of these conditions, and leveraged their more professional and unified structure to ramp up recruitment, consolidate small local youth gangs into more violent and more organized groups, and expand into the street gangs that control neighborhoods throughout Central America today.
7.) U.S. immigration officials have, over the years, failed to recognize circumstances in which large numbers of people are legitimately seeking political asylum, and thus have contributed to humanitarian tragedies.
- From turning back German Jewish refugees in the late 1930s, to denying asylum status to Haitians fleeing the Duvalier dictatorship, to opposing the asylum claims of Salvadorans fleeing political violence in the 1980s, successive administrations have repeatedly underestimated the seriousness of human rights abuses, with political calculations overtaking humanitarian concerns. During El Salvador’s and Guatemala’s civil wars, now widely recognized to have been characterized by widespread human rights abuses and where the repressive governments’ were backed by the United States, the United States rejected almost all asylum claims from these countries. In 1984, only three percent of the asylum cases from these countries were granted, in contrast to much higher numbers of approvals for citizens of countries whose governments were considered hostile to the United States (such as Iranians and Afghans fleeing the Soviet invasion); an outcome which had more to do with political decisions rather than assessing the merits of the claims themselves.
- In recent years, there are multiple, documented cases of Central Americans deported from the United States who have been killed as a result of gang violence, although we have no idea of what the actual scale could be. As was discussed previously, the vast differences in asylum decisions made by U.S. immigration judges also often have more to do with the judge than with the case itself. This is highlighted in an October 2017 Reuters report, in which two women from Honduras tell similar stories about fear for their lives and the lives of their children, and yet one is granted relief in the U.S. and the other was ordered deported. Such cases illustrate the arbitrary nature of these decisions which can be the difference between life and death for the people involved.
- The growing backlog of cases forces judges to make rapid decision with little resources. Compounding this situation is the Trump administration’s decision in July 2017 to cancel the annual week-long training course to prepare judges for ongoing changes in case law, ethics and other areas. As one immigration judge told Quartz, her job was like “doing death-penalty cases in a traffic-court setting.”
