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Solutions for legal challenges facing asylum seekers
Tuesday, September 01, 2015

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(Washington, D.C.) September 1, 2015 — Migration from the Northern Triangle of Central America — El Salvador, Guatemala and Honduras — has risen steadily as violence has increased in the region. Persecution at the hands of armed groups, including gangs, 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. 

Victims have not been able to seek safety and protection from their own governments and, as a result, have taken the dangerous journey from their home country to the U.S. in search of safety. We have seen scores of unaccompanied children and families with young children risking their lives in the hopes of a more hopeful future.

Jesuit Refugee Service/USA and U.S.-based Jesuit law schools have been engaged in efforts to respond to the number of children and families from Central America seeking protection, and are jointly committed to collaboratively expanding efforts to address this critical issue. 

"This initiative is rooted in the Catholic and Jesuit principle of welcoming the stranger, and I can think of no more fundamental lesson to teach our law students."

Professor Daria Fisher Page from Georgetown University Law Center made this statement as she reflected on a recently launched partnership between Jesuit Refugee Service/USA and 13 U.S.-based Jesuit law schools. The partnership aims to address the legal challenges faced by families and children from Central America seeking protection in the United States. Addressing the needs of people seeking protection and refuge in the U.S. is a complex and multi-layered issue. This partnership creates a platform to set forth the particular challenges identified by legal practitioners at Jesuit law schools in the U.S. who are working to assist asylum seekers and other vulnerable migrants from Central America.

Helping to spearhead this partnership, William M. Treanor, Dean of the Georgetown University Law Center, noted it was a privilege to be involved in an issue "of such fundamental importance for all of us with our great social justice mission and concern for making a difference and opening doors." Dean Treanor made his remarks during a forum co-hosted by JRS/USA and the Center in July.

In recent years, an increasing number of Central Americans have been migrating north to the United States, reaching peak numbers in the summer of 2014. Of particular concern has been the increase in the number of unaccompanied and separated migrant children from Honduras, El Salvador and Guatemala. 

Jesuit law schools serve asylum seekers and other vulnerable migrants from Central America in various ways, including through research, training and direct representation. Most offer direct legal representation through pro bono services provided by trained professors or by law students working under faculty supervision. In 2014, Jesuit law schools represented 291 asylum seekers and migrants from Central America and anticipate serving almost 300 in 2015.  

In a survey conducted by JRS/USA, representatives from each of the participating Jesuit law schools reported that their clients represent a wide array of individuals, including single women and men, families with children, unaccompanied or separated children, and parents already in the U.S. whose children have now come to be reunited. 

Clients served by Jesuit law schools cite violence, persecution, extortion and/or recruitment at the hands of gangs as one of the reasons for fleeing their home countries. Others endured horrific abuse at the hands of parents or other family members, including frequent physical and emotional abuse, abandonment and neglect.  

Beatrice is a Guatemalan woman now in her 20s who lost her mother when she was seven, and went to live with her grandmother. As a young girl, the gang MS-13 tattooed her back, bullied and threatened her in an attempt to coerce her to sell drugs for them. She married at 14, had a son, and the gangs stopped threatening her. But after three years of marriage, her husband left her and the gang began to harass her and her son again. She fled to the U.S. with her son, who is now 14; they are living with an uncle as she awaits a verdict on her asylum claim.

After crossing the border and in the U.S. government’s custody, asylum seekers in search of protection don’t fully grasp that to properly request asylum, they are expected to relate their often-traumatic experiences as soon as they are detained.

During the July forum, Legislative Associate at the American Immigration Lawyers Association Alyson Sincavage reflected the mindset of asylum seekers when she noted, "How can you feel safe when you have to explain to someone you’ve never met, with a uniform and a weapon, in a cold room with people buzzing in and out; how can you feel safe when you have to divulge to them secrets you may be ashamed of? It’s a very hostile, scary environment when arriving in this country."

The asylum seekers also find themselves in a bewildering process of navigating the legal system. Finding legal representation is a critical need. "Without financial resources, English language skills, or much knowledge of the American justice system, these individuals have great difficulty finding representation," noted Seattle University School of Law in the survey.

According to data compiled by the Transactional Records Access Clearinghouse at Syracuse University, only 46% of the unaccompanied children going before Immigration Court are currently represented by an attorney and more than 81,000 juveniles are still without legal representation.  

"Children shorter than this table are representing themselves before an immigration judge," said Jeanne Atkinson, Executive Director of the Catholic Legal Immigration Network, Inc. (CLINIC), during the July forum.

The Jesuit law schools face challenges keeping up with demand in their communities as well. The Catholic Legal Assistance Ministry at Saint Louis University noted the increase in numbers of removal cases has “made us have to stop intake a few times in the last year and also limit the other types of cases we take."

"We are stretched so thin, it's hard to decide: whose case is the strongest," said Emily Robinson, a clinical attorney and the co-director of the Loyola Immigrant Justice Clinic at Loyola Law School Los Angeles. The clinic provides free immigration legal services to largely Latino — including Central Americans — migrants on the Eastside of Los Angeles. They partner with Dolores Mission Parish and Homeboy Industries to host weekly community intake sessions, offering consistent access to free immigration legal services to this community. Both partners provide a wide range of invaluable social services to this community.

In the survey conducted by JRS/USA, the law schools identified a series of challenges in representing their clients, including:

Procedural challenges in managing a mandated expedited docket for migrants from Central America.

•  Legal challenges posed by limitations in the acceptance of gang-related violence claims.

• Logistical challenges related to consistent and reliable access to clients and courts.

Challenges accessing counseling and support services for clients.

Complete survey results were compiled in the report A Fair Chance for Due Process: Challenges in Legal Protection for Central American Asylum Seekers and Other Vulnerable Migrants, which is available as a downloadable PDF by clicking here.

During July meetings arranged by JRS/USA, representatives from the law schools were able to share information from A Fair Chance for Due Process and first-hand knowledge of the challenges being faced by legal practitioners. Compelling testimony on behalf of the clients they are serving was shared during meetings with stakeholders at the White House, Department of Justice, the House and Senate Committees on the Judiciary, and the Department of Homeland Security.

Manuel is a 17 year old who fled his home country of Honduras after experiencing abuse at home and being threatened by local armed groups. Though poor, his family owned some land on which they grew food. Manuel was forced to drop out of school in sixth grade to work the land full time, his father sometimes beating him with a leather belt. He witnessed the murders of his cousin and brother at the hands of armed groups who wanted the land, and he was also threatened. Manuel didn’t receive any protection from his family or local authorities, so he decided to seek safety in the U.S. He is now living with a foster family and doing well in school. 

JRS/USA and U.S.-based Jesuit law schools are committed to collaboratively expanding efforts to address this critical issue. This partnership serves as a call to action for both Jesuit law schools and the larger community to continue, as well as increase, investments in serving this vulnerable population. The recommendations here and in A Fair Chance for Due Process are set forth in an effort to ensure that anyone who comes to our borders seeking safety is provided a fair and equitable process to articulate their claims for protection and that their dignity and well-being is respected throughout the entire legal process.  

While these challenges, and related recommendations, do not address all of the issues related to this topic, they are shared in an effort to provide testimony to what these migrants are currently facing as they navigate the legal system upon their arrival in the U.S.

"We need to ask ourselves as a country: who are we and who do we want to be? And then we need to act that way," said CLINIC's Jeanne Atkinson.

Recommendations for Action

• Ensure Legal Representation for Minors — The only way to ensure fair and timely adjudication of humanitarian claims for minors in the U.S. is to provide full access to legal representation. Congress must introduce and pass legislation that ensures every unaccompanied minor receives legal representation.

Increase Resources for Legal Representation — There must be a substantial increase in resources to provide greater access to legal representation for unaccompanied minors and asylum applicants.

Stop Expedited Processing for Children & Families — The U.S. government must reverse its policy on expedited processing for unaccompanied minors and families from Central America.

• Recognize Gang-Based Asylum Claims — The U.S. government must begin to recognize gang violence and persecution as grounds for asylum.

• Track Jurisprudence on Gang-Based Asylum Cases — Compiling and tracking decisions on gang-based claims is critical in demonstrating that there is a growing body of precedent in this area.

• Minimize Movement of Clients and Increase Access to Transportation Services — Minimizing the movement of those being held in detention will help avoid interruption of access to legal services, and increased access to transportation services will assist those navigating the legal process.

Provide Access to Counseling Services — The trauma endured by those seeking protection in the U.S. poses a serious problem and may preclude them from being able to fully articulate their claim for protection. The courts must consider trauma when making their determinations and investments must be made to increase access to counseling services for this vulnerable population.

• Reform the U.S. Detention System — The U.S. government must consider alternative measures to detention including a network of supervised release, case management, and community support programs, which will ensure court appearances and due process.

• Provide for Additional Avenues of Relief — The U.S. government must pursue Comprehensive Immigration Reform, so that families in the U.S. can sponsor their children legally.

Take Action: to send a letter to your member of Congress on this issue, please click here

The Jesuit law schools taking part in this project are: Boston College, Creighton University, Fordham University, Georgetown Law, Gonzaga University, Loyola University Chicago (in close collaboration with the Center for the Human Rights of Children housed at Loyola University Chicago), Loyola Law School Los Angeles, Loyola University New Orleans, Saint Louis University (in close collaboration with the Catholic Legal Assistance Ministry housed at Saint Louis University), Santa Clara University, Seattle University, University of Detroit Mercy, and the University of San Francisco.