A youngster looks out the door window from the room he is in at the Brownsville, Texas, port of entry. (Eduardo Perez — Customs and Border Protection)
(Washington, D.C.) July 20, 2014 — Migration from the Northern Triangle of Central America — El Salvador, Guatemala and Honduras — has risen steadily as violence has increased. Youth gang violence has intensified in the last decade, and as drug trafficking routes have shifted to Central America, violence associated with the drug trade has risen as well. Honduras has the highest homicide rate in world; since 2005, murders of women and girls have increased 346% while murders of men and boys are up 292%. In both Guatemala and Honduras, rates of impunity are over 90%.
Child advocates, especially from Honduras and El Salvador, report accounts of children and teenagers subject to assaults and intimidation from gangs, and of children being forcibly recruited by gangs who have "join or die" polices. In a survey conducted by UNHCR of 404 Central American children detained at the border in 2013, UNHCR found that 58% of the children might be in need of international protection.
Children and youth in Central America are vulnerable to violence from vigilante groups, sometimes including off-duty police officers, who enter neighborhoods known for gang activity and carry out extrajudicial executions of those they suspect of gang activity. Although the situation is slightly different in each country, corruption within the government, law enforcement complicity in criminal activity, and penetration of the political sector by organized crime erode citizen security and destroy citizens' trust in their own government.
In addition to reasons linked to violence and corruption, many children, young people and families are also migrating as a result of poverty and lack of opportunity. In the UNHCR study mentioned above, more than 80% of children cited poverty or deprivation as a factor that contributed to their decision to leave. According to a 2012 World Bank study, younger workers confront serious barriers to legal employment. The study found that 30% of urban youth in Central America are neither working nor in school. Lack of opportunity also compounds the problems of crime and violence, as many young people in poor neighborhoods see few alternatives to gang membership.
Jesuit Refugee Service/USA is particularly concerned about three groups: unaccompanied children traveling without a parent or legal guardian, asylum-seekers, and women traveling with very young children.
Unaccompanied children from non-contiguous countries do have some protections in the U.S. However, to understand the current situation and why those protections are being threatened, one must remember that the system for unaccompanied children was designed to handle about 8,000 children per year, the annual average until recently. This year, however, the U.S. government has already taken into custody more than 52,000 unaccompanied children, and estimates that the final number for the year may exceed 90,000.
As soon as a child is taken into custody, deportation proceedings are immediately initiated. Simultaneously, at least for now, if a family member or other responsible sponsor can be located, the child can be released to their custody while he/she awaits the assigned court date, often more than two years away. If a sponsor cannot be located, children remain in government custody or are placed in foster care.
While the U.S. has increased immigration enforcement resources enormously over the last decade, the legal system that processes cases has been underfunded, resulting in a serious backlog of 366,000 cases and an average wait time of more than 570 days.
Opponents of immigration reform in the U.S. have argued that releasing these children while they await their court date rewards irregular migration by reuniting families, albeit temporarily. They also predict that large numbers of these children will not show up for their court date and accuse the government of not exercising appropriate supervision over them.
In response to this critique, the Administration has asked Congress to make a legislative change to allow for the expedited deportation of unaccompanied children (something that is currently prohibited by protections in an anti-trafficking law). The Administration is also exploring detaining, rather than releasing, these children. We do not support either of these changes.
Conversely, the Administration has recognized that no child should face an immigration judge alone, and has therefore taken steps to increase children's access to legal advice. Currently, unaccompanied children navigating deportation proceedings are not provided with legal representation by the government.
While it is technically possible for them to pursue some form of immigration relief in order to not be deported back to their country or origin (asylum, special juvenile immigration visa, etc.), most children will need legal assistance to effectively do so. To this end, NGOs have undertaken a herculean effort to provide pro bono legal support to as many children as possible, and the Administration recently announced a new program to provide stipends for legal screenings and support for unaccompanied children.
The numbers of asylum-seekers from Central America has also increased over the last few years, as many of the root causes expelling children from these countries affect adults as well. The number of people entering the first stage of the asylum process has increased by more than 250% from 2012 to more than 36,000 claims in 2013. Unfortunately, some have interpreted the increase in the number of asylum claims as proof of abuse. However, the U.S. is not the only country seeing such an increase. In fact, from 2008-2013, Mexico, Panama, Nicaragua, Costa Rica and Belize jointly documented a 712% increase in the number of asylum applications from El Salvador, Honduras and Guatemala.
In fact, far from being overly generous, the asylum system is not favorable to most Central American claims. The asylum system in the U.S. recognizes only the 1951 Refugee Convention, and not expanded definitions like that of the Cartagena Declaration. Asylum-seekers from Central America who have been persecuted by organized crime or gangs do not easily fit into a system designed to respond to persecution by state actors.
The two largest hurdles involve the identity of the victim and of the persecutor. Currently, the U.S. asylum system excludes cases in which the persecutor’s primary motivation is determined to be economic, which is how most judges have interpreted persecution by gangs and organized crime. Unfortunately, this fails to acknowledge that some of the most effective non-state persecutors in Central America increasingly penetrate the political arena and often wield more power than state entities. Secondly, U.S. asylum law only recognizes persecution as the result of race, religion, nationality, political opinion or membership in a particular social group. U.S. law has defined "particular social group" in increasingly narrow ways, requiring that a social group be "socially visible," for example. This has also increased the likelihood that Central American cases will fail.
Other concerns include the continued detention of asylum-seekers and a technical, but important, change in the way that the first step of the asylum process—the Credible Fear Interview—is conducted to make it more difficult to pass.
Families and Detention Conditions
In addition to increased numbers of asylum seekers and unaccompanied children, the U.S. has also been receiving a large number of families, especially women with young children. Virtually all Central American migrants are either apprehended by or turn themselves in to Customs and Border Protection (CBP), within the Department of Homeland Security. CBP operates very rudimentary holding facilities that were never supposed to individuals for more than 72 hours.
In practice however, migrants — including children — are languishing in CBP custody for up to two weeks before they are processed and transferred. This is concerning because there are no standards that govern conditions in CBP facilities.
In fact, in light of documented cases of migrants being denied adequate food, water and medical care and experiencing verbal, physical and sexual abuse, it is clear that enforceable standards are needed, and that external observers must have access to the facilities in order to monitor compliance.
After repeated requests, Fr. Sean Carroll of the Kino Border Initiative was finally given a tour of a Nogales CBP facility where as many as 1200 children are being held; however, Fr. Carroll was denied permission to speak with the children and could not ascertain their psychological well-being. Fr. Carroll has subsequently attempted several times to again visit the center, but his requests continue to be denied.
While children are transferred from CBP facilities to the Department of Health and Human Services for release, the U.S. government has been releasing families, especially those with young children, until their court date.
Since closing the T. Don Hutto Detention Center in Texas in 2009 amidst accusations of inhumane conditions and mistreatment, the U.S. has not detained families in jail-like settings. Until recently, the only remaining family detention center in the U.S. was a small shelter-like facility in Pennsylvania. However, responding to the criticisms detailed above, the Administration has recently reinstituted a discredited policy of detaining families and opened a family detention center at a law enforcement training center in Artesia, New Mexico.
JRS/USA and Church World Service have been asked to provide chaplains to ensure that the as many as 700 people detained in the Artesia Family Detention Center have access to religious services.
Unfortunately, many of the detainees’ other needs are not being met as no one is currently providing either Know Your Rights presentations or conducting Legal Orientation Programs (LOP) inside the facility. In addition to respecting basic rights, providing correct information through strong LOP can help prevent the development of any inaccurate rumors about current policy and practice (something that many parts of the U.S. government are concerned is catalyzing additional migration from Central America).
Beyond its obligation to treat all migrants humanely, the U.S. has a further obligation to provide protection for unaccompanied children, asylum-seekers and families who are fleeing violence in their countries of origin. Despite strong signals that it intends to do so, the U.S. must not roll back existing protections simply because more people may need them than anticipated.
We must be very clear with all U.S. government officials that this is a mixed migration which includes people in need of international protection. Therefore, the U.S. must protect migrants’ due process rights and ensure that all migrants receive Know Your Rights and Legal Orientation Programs.
Children, especially, should have legal representation or at least an individualized legal screening, and the criteria used in the asylum system must be adapted to respond to evolving forms of persecution in the Hemisphere. Children, asylum-seekers, and families should only be detained in rare circumstances, and detention conditions must be humane and monitored by external observers.
The U.S. government must hold on to humanitarian principles of protection and compassion because the implications of its decisions are global. The U.S. cannot continue asking countries like Jordan, Turkey and Lebanon to keep their borders open in the face of large numbers of people seeking protection from violence in Syria if it is unwilling to compassionately review the asylum and protection claims of desperate people who arrive at its own border.