Background and Introduction
An exorbitant number of citizens from El Salvador, Guatemala, and Honduras are fleeing their countries as gangs control their communities through corruption, extortion, and drug trafficking. These three countries continue to be ranked amongst the most violent in the world, where about ninety-five percent of crimes go unpunished in some areas and annual extortion fees range from $61 million to $390 million (Labrador & Renwick, 2018). Children can no longer freely attend school or have a safe childhood because they are forcefully recruited into gangs or forced to become sexually exploited by gang members. This pressing issue and the desperate pleas from those affected are what prompted interest on this topic.
This paper examines the stark challenges asylum seekers face, especially those pertaining to the Northern Triangle: El Salvador, Honduras, and Guatemala. An exploration of how Central American claims have been treated historically provides insight on past discrimination, the political climate that impeded individuals from being classified asylum seekers, the attempts to redress the discrimination, and the beginning of an era that refuses to extend asylum status. Reviewing the negative treatment and how it has funneled down to the present day makes it easier to understand the current deterrence and discrimination in place. An analysis of various areas of the government shows the subtle ways policies, reform in case law, statutes, and lack of legal representation have been implemented to work against asylum seekers. In addition, a brief section will explain the current U.S. government’s response to asylum seekers and how a dark, dim future awaits asylum claims. Finally, an argument is made to modernize the United States jurisprudence, so it aligns with the true commitment made by the 1951 Refugee Convention. Different approaches are suggested including removing recent restrictions in case law for particular social groups, expanding the political opinion to include gang-based asylum claims, and adopting a humanitarian approach with appointing legal representation and multidisciplinary professionals to asylum claims.
Overview of how Central American Claims have been Treated Historically
Looking at the history of how Central Americans have been treated in the immigration system can be divided into three time periods: the first in the 1980s, when Central Americans were labeled as economic immigrants; the second, in the 1990s when the civil wars in El Salvador and Guatemala ended; and lastly, in the 2000s when Central Americans fled gang violence.
The Political Climate in the 1980s that Labeled some Central Americans Economic Immigrants
In 1980, the Refugee Act expanded the definition of refugee to not only individuals fleeing communist countries, but also to individuals fleeing non-communist countries. During this same period, individuals from El Salvador and Guatemala were fleeing civil wars and became targets of repression. Many human rights advocates were concerned about the violations occurring in Central America and sought aid for the victims by helping them apply for asylum. The Reagan administration, however, believed that Salvadorans and Guatemalans were economic immigrants rather than refugees. They were primarily labeled economic immigrants because of the drastic deterioration of conditions in El Salvador and Guatemala. U.S. officials were concerned that a large influx of immigration could result if the asylum law was interpreted to also include Salvadorans, Guatemalans, and Hondurans. Despite the U.S. being one of the 148 countries to ratify the 1951 Refugee Convention, a key international document that expects countries to cooperate to ensure the rights of refugees are protected and to abide by fundamental principles most notably non-discriminatory, non-penalizing, and non-refoulement this did not change the sentiment or behavior of U.S. officials towards Salvadoran and Guatemalan asylum seekers.
In 1984, during a U.S. congressional hearing on the status of Salvadorans and Guatemalans, Assistant Secretary of State Elliot Abrams described these immigrants as being different from other undocumented immigrants because El Salvador was a country with a history of large-scale illegal immigration to the United States. The fundamental principle of non-penalization in the 1951 Convention protected refugees from being penalized for their illegal entry or stay and for countries to understand that seeking asylum may require refugees to violate immigration laws. This fundamental principle in the 1951 Convention did not stop U.S. officials from spreading their rhetoric and beliefs about Central American asylum seekers.
Moreover, in that same congressional hearing Immigration and Naturalization Service (INS) Commissioner Alan Nelson asserted that if Central Americans were granted asylum then that would open the floodgates for the world’s poor and of course, everyone would have a better life in U.S. These types of attitudes from U.S. officials influenced government agencies’ decision making and ultimately the outcome of asylum claims. For example, the U.S. State Department was required to make recommendations on asylum applications and typically advised INS district directors to deny Salvadoran and Guatemalan asylum cases. In fact, during the early 1980s, asylum applications filed by Salvadorans and Guatemalans were denied at rates of 97 and 98 percent, respectively (Coutin, 2011, p. 576).
In 1988, advocates continually saw high denial rates, which prompted a law suit to be filed by the Center for Constitutional Rights on behalf of eight religious organizations against the U.S. Attorney General and the head of the INS alleging a systematic bias in denial of Salvadoran and Guatemalan asylum claims. The lawsuit was ultimately settled (known as the 1991 ABC settlement) and many of the refugees who were originally denied asylum had the opportunity to seek legal asylum and the INS agreed to re-adjudicate claims for refugee status which had been denied after 1980.
The Band-Aid over the Bias and Discrimination Wound of the 1990s
The second period in which Central Americans have been denied refugee eligibility was in the 1990s, when civil wars in El Salvador and Guatemala came to an end. The legal mechanisms available to Central Americans during this time period included Temporary Protective Status (TPS) and the 1991 ABC Settlement. Unfortunately, the thousands of ABC asylum applications and the complexity of the settlement created an administrative backlog and delays that resulted in adjudications beginning until 1997. A permanent solution was implemented in 1997 with the alliance of immigrant-rights advocates, U.S. and Central American officials, and Nicaraguan, Guatemalan, and Salvadoran immigrants and their supporters, who were able to unite and secure passage of the Nicaraguan Adjustment and Central American Relief Act (NACARA).
These groups came together because the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) contained provisions that would negatively affect not only Salvadorans and Guatemalans that qualified under ABC asylum status, but also Nicaraguans who had been allowed to remain in the United States without a permanent status even if they were denied asylum. Although Nicaraguans are Central Americans, they were not previously discriminated because they were fleeing a leftist Sandinista government, as oppose to Salvadorans and Guatemalans who were fleeing right-wing governments. It could be assumed that if it were not for the 1996 IIRIRA provisions also negatively affecting Nicaraguans perhaps NACARA would not have also been extended to Salvadorans and Guatemalans.
The implementation of NACARA provided extraordinary benefits to Central American asylum seekers but it did not entirely resolve or address the disparate treatment of different groups of Central Americans. The effects of the 1980s denial of asylum impacted Salvadorans and Guatemalans who after several years became NACARA beneficiaries and ultimately did not become legal permanent residents (LPR) of the United States until the early 2000s. Unfortunately, many learned too late that LPR status still subjects them to deportation and those who were convicted of crimes were stripped of their legal permanent residency. The 1996 IIRIRA tightened immigration laws and was less forgiving to immigrants who committed crimes. If Central American immigrants and their families had been granted asylum during the 1980s, when they first fled their countries of origin, or even in the 1990s when the ABC settlement was reached, then it is possible they would not have been LPRs and would become vulnerable to deportation under the 1996 laws.
The 2000s Halt and Blind Eye to Central American Asylum Claims
The third period when Central Americans fell outside the category of refugee was during the 2000s when gang violence and recruitment rose in that region. The fear of granting asylum to these immigrants stems from the continued belief that the floodgates will be unleashed. The gangs in Central America, particularly those in El Salvador, Honduras, and Guatemala, have de facto control over their governments and the entire nations, causing great fear among the citizens. The United Nations High Commissioner for Refugees (UNHCR) is the only international, intergovernmental United Nations organization entrusted by the UN General Assembly to provide international protection to refugees. In order for UNHCR to complete its mission in providing international protection and direct assistance to refugees throughout the world it needs the support, cooperation and participation of nations around the globe like the United States.
UNHCR has been documenting the increasing numbers of individuals fleeing gang violence in Central America, specifically El Salvador, Guatemala, and Honduras, while focusing on the stresses that these individuals need international protection. The number of people fleeing the Northern Triangle, including adults and unaccompanied children, has reached levels not seen since the region was wracked by armed conflicts in the 1980s. Out of all the countries in the region, the U.S. has the highest number of new asylum applications by individuals from the Northern Triangle. Moreover, Mexico, Panama, Nicaragua, Costa Rica, and Belize combined have also received a 435% increase in the number of asylum applications from the Northern Triangle. The UNHCR issues reports on the conditions for the Northern Triangle countries, detailing guidelines for international protection and shedding light on the particular groups of individuals who are targeted. Unfortunately, UNHCR’s pleas or reports do not automatically grant international protection to the individuals who are identified and seek protection abroad. It is ultimately up to the country where the asylum seeker is asking for protection to decide whether or not to grant asylum. Like the two-previous time periods, the U.S. has continued to use different methods to avoid granting asylum to Central Americans from the Northern Triangle.
Deterrence and Discrimination toward Central American Asylum Seekers
Within the United States there have been different areas within the government, including administrative, trial and appellate processes, and legislative, that have made it difficult for individuals from the Northern Triangle to be granted asylum. An analysis in these three areas will reveal the administrative tactics to dissuade asylum seekers, the disparity in rates of granted asylum among immigration courts, the undermined appellate process, and lastly the laws punishing good Samaritans for aiding asylum seekers.
Administrative Dissuasion through Policies
Administrative opposition has been present since the 1980s, when Central Americans from the Northern Triangle were labeled economic immigrants and were actively denied asylum. In 2014, when there was a surge of women and children fleeing the Northern Triangle to the U.S., the Department of Homeland Security (DHS) used the case Matter of D-J- to implement the policy no bond, high bond in order to deter others from coming to the U.S to seek protection. The Assistant Director of Enforcement and Removal Operations, Phillip Miller, at the time of the policy confirmed the administration’s reasoning for implementing the no bond or high bond policy was to significantly reduce the unlawful mass migration of Guatemalans, Hondurans, and Salvadorans. Moreover, Gillian Christensen, the spokeswoman for Immigration Custom Enforcement (ICE) also asserted that the administration believed if immigrants were released on bond, they would not return for deportation proceedings and that it was ultimately best for the immigrants to be detained. This form of deterrence favored punishment over administrative processing.
In addition, the Department of Homeland Security (DHS) promptly expanded its practice of family detention in lockdown facilities. Prior to the summer of 2014, families arriving at the U.S. border seeking asylum were allowed to be released to live in the community while waiting for their immigration hearing. From June 2014 to February 2015, nearly all individuals who received a favorable determination in their credible fear interview or reasonable fear interview (interviews conducted by immigration officials to determine whether the immigrant has a possibility of succeeding on the merits of their asylum claim) were kept in detention rather than being released under a bond or other non-monetary condition like a supervision program.
In December 2014, advocates brought a class-action law-suit, challenging the practice of categorically detaining asylum-seeking families for deterring future migrants. A district court judge issued a preliminary injunction forbidding DHS from using deterrence as a reason for detaining families or as a factor in custody determinations. The court also asserted that immigration detention is a civil procedure and must be justified by a legitimate government interest other than punishment, and that divesting families of their liberty as a deterrence for other migrants was impermissible. Although, DHS announced it would engage in individualized custody determinations rather than across-the-board deterrence it still continued implementing its policy of no bond or high bond along with the development of more family detention facilities. All together these are some of the ways various administrations have manipulated their powers to make it difficult for Central American asylum seekers. The typical approach from the U.S. is not how to help a humanitarian crisis at their door step, but rather how to deter and make it more difficult for the vulnerable victims.
The Trial and Appellate Process for Asylum Cases
The trial and appellate process for asylum claims has also posed a significant obstacle for asylum seekers fleeing from the increased gang violence in the Northern Triangle. The immigration courts through the biases and personal factors of immigration judges have made it challenging through the disparity in grant rates for asylum claims. The Board of Immigration Appeals (BIA) has also contributed through its reform in case law and adding two requirements to a long-established precedent for particular social groups. In addition, the BIA appellate review is minimized by different reforms and power struggles. Lastly, the federal circuit court of appeals likewise have a disparity in remand rates depending on the region.
Immigration Courts Disparity in Grant Rates
Through disparity in grant rates due to biases and other personal factors immigration judges have made it challenging for adjudicating asylum claims. A large amount of disparity in grant rates is seen between immigration courts and between immigration judges within the same court. For instance, the national average for Chinese asylum claims during 2000 and 2004 was forty-seven percent (Gupta, 2016, p. 40). During that time period those asylum claims had a seven percent chance of success before the Atlanta Immigration Court (Gupta, 2016, p. 40). During that same time period Chinese asylum seekers had a seventy-six percent chance of success in the Orlando Immigration Court (Gupta, 2016, p. 40). This shows how the geographic location where an asylum seeker files their claim has an impact on its success, but even in courts where there are higher success rates there may be disparities among judges in the same court. For example, in the New York Immigration Court the grant rate fluctuated depending on the judge: one judge granted six percent, another seven percent, and three other judges granted at eighty percent, eighty-nine percent, and ninety-one percent of their cases, respectively (Gupta, 2016, p. 40). These are troubling disparities because although the judges are applying the same asylum laws to each case their biases can influence their decisions and go unchecked.
There are several factors that relate with a judge’s personal experience and background that can influence the adjudication of successful asylum claims. One factor includes gender where female immigration judges’ grant rate is forty-four percent higher than that of male judges (Gupta, 2016, p. 41). A second factor that impacts a lower grant rate is immigration judges who previously worked in government positions specifically for the DHS or its predecessor the Immigration and Naturalization Service (Gupta, 2016, p. 41). On the other hand, immigration judges who worked as immigration lawyers in a private practice, had experience as a law professor, or served on the staff of a nonprofit organization have higher grant rates (Gupta, 2016, p. 41). A third factor can be an immigration judge’s lack of understanding of the cultural, ethnic, and linguistic backgrounds of asylum seekers. (Gupta, 2016, p. 42). These significant misunderstandings could jeopardize a case for something as simple as the judge believing the applicant is not credible because he refuses to make eye contact but in reality, this is a sign of respect in the applicant’s culture. A fourth factor is the lack of independence of immigration judges because they operate under the Department of Justice (DOJ).
The BIA which reviews immigration court appeals also operates under the DOJ, and attorneys from that same department represent the government in appeals from BIA decisions to the federal circuit courts. Immigration judges also have the obligation to develop the record in pro se cases, including conducting the direct examination and cross-examination of witnesses. With these many roles and the lack of any real independence immigration judges are left without guidelines on appropriate behavior and it leaves the door open for implicit biases to go unchecked and contribute to discrimination in cases. Finally, the other factor that could lead to bias is the heavy caseloads in the immigration docket. On average per year an immigration judge handles about 1,300 cases which far exceeds the caseloads of other judges (Gupta, 2016, p. 43). Immigration judges are not able to dedicate the desired time that complex immigration and asylum cases need. For instance, the former president of the National Association of Immigration Judges perfectly described how high stakes these cases were and the amount of time taken to adjudicate them: “I adjudicate what in effect can be death penalty cases (when I may have to deport someone to a country so violent and/or poverty stricken that they may die) in a setting that most closely resembles traffic court in volume of cases and lack of resources.” All these factors contribute to a disparity in grant rates, making the adjudication of asylum claims uncertain.
The Board of Immigration Appeals Reform in Particular Social Groups and the Attorney General’s Role
The BIA and the federal circuit courts have resisted to connect most gang-based claims with one of the five U.N. convention protected grounds (race, religion, nationality, membership in a particular social group, or political opinion). Many asylum advocates have desperately tried to articulate and argue particular social group (PSG) claims for asylum seekers but throughout the years the courts have refined the requirements. The original standard for a PSG originated from Matter of Acosta decided in 1985, where the applicant showed his membership in a particular social group by immutable characteristics shared by all group members. In 2006, the BIA’s decision in Matter of C-A- added two additional requirements to Acosta’s immutable characteristic standards: social distinction (formerly visibility) and particularity. These two new requirements diverted from the BIA’s long-standing Acosta precedent and made it challenging for gang-related claims to formulate cognizable particular social groups.
The BIA has emphasized that the cases involving gangs should not be a blanket rejection, but rather fact specific case-by-case analysis. Even with this standard in place to review each case individually the case law is unfavorable for individuals fleeing gang persecution in the Northern Triangle. It has left advocates with very little hope and thus having to rely on their creativity in articulating as many PSG claims for their clients. The recent development in adding two new requirements to an already established precedent can be seen as a way to limit relief for asylum seekers and not open “the floodgates,” as referenced by many government actors, especially to a large group of asylum seekers like those from the Northern Triangle.
There have also been reforms and power struggles in the BIA that have caused a lack of meaningful appellate review. For example, former Attorney General John Ashcroft incentivized BIA members to write short, summary affirmances or affirmances without opinion when evaluating immigration judge decisions. This resulted in what used to be three-member BIA decisions to primarily be replaced with one-member summary affirmances. An Attorney General also has the power to review BIA decisions by certifying them to himself or accepting the decision by referral. If the Attorney General reviews a case from the BIA, the decision made by the BIA is no longer final, reviewable by a federal court, or relied on as precedent because the decision of the Attorney General becomes final and is the precedent for future cases.
There is no issue with having the Attorney General oversee the BIA to maintain control and ensure consistency. The issues arise when there are no procedural safeguards in place to keep tabs on the Attorney General. For instance, Jeffrey Sessions, former Attorney General, implemented various immigration policies through his powers that had detrimental consequences for asylum seekers. One significant change he made was to eliminate a requirement that allowed asylum seekers to get a full hearing before an immigration judge. Now immigration judges can reject asylum applications without a full hearing if they believe the application is fraudulent or not likely to succeed. Critics believe this new change does not make the system more efficient by taking people’s due process rights because it will only create more litigation. The former Attorney General also referred himself three immigration cases in 2018, a drastic rate that has stunned experts and advocates. This is an exercise of power seldom used; in fact, between 1999 and 2009 an Attorney General referred BIA decisions about 1.7 cases annually (Trice, 2010, p. 1771). Those decisions by the former Attorney General are alarming because he publicly voiced his anti-immigrant rhetoric.
Federal Circuit Courts of Appeals Disparity
In addition to the BIA making it challenging for asylum seekers and their advocates, the federal circuit court of appeals has also been another obstacle. There are disparities in the remand rates for asylum claims in the circuit courts depending on the region. For example, the Fourth, Fifth, and Eleventh Circuits, which are located in the South and deemed more conservative, have remand rates under 5%, whereas the Seventh Circuit, located in the Midwest, has a remand rate of 31% (Ramji-Nogales, 2007, p. 375). It is unfair for there to be disparate treatment of asylum claims depending on where an asylum seeker files their application, despite the judges applying the same national asylum law.
Legislative Opposition to Samaritan Aid
The laws in the United States also make it difficult for good Samaritans to help those fleeing for their lives and arriving at the southern border of the U.S. after enduring a torturous journey to find safety. For some it is natural to want to provide humanitarian assistance to people who are suffering and in despair. Unfortunately, laws in the U.S. criminalizes acts such as giving a ride to someone without a valid visa and prohibits concealment and harboring of unauthorized aliens. Harboring is not statutorily defined and has led the federal courts to interpret it expansively. Samaritans may be prosecuted for providing meals, offering a place to stay, or transporting an unauthorized immigrant to a hospital for medical attention regardless if the efforts are for humanitarian reasons.
An example of this prohibition occurred in the 1980s when a Quaker rancher in Arizona founded the American Sanctuary Movement and provided humanitarian aid to Central Americans from the Northern Triangle seeking refuge in the United States. The sanctuary workers believed they had a moral obligation to help, especially since the U.S. was denying asylum to the majority of individuals from the Northern Triangle. In the eyes of the sanctuary workers they believed the Central Americans were entitled to protection under the 1949 Geneva Convention despite the U.S. denying them asylum and labeling them mere economic migrants.
The federal government responded to this movement by creating “Operation Sojourner” where investigators were deployed to act as church volunteers infiltrating the American Sanctuary Movement. The investigators gathered evidence over ten months and the Department of Justice used the evidence to prosecute sixteen sanctuary workers. Ultimately, the sanctuary workers were found guilty of violating the anti-smuggling statute for providing food, shelter, and comfort to unauthorized migrants (the despaired Central Americans from the Northern Triangle fleeing civil wars). Legislation of this type leaves good Samaritans with their hands tied and with little hope that the government will be able to respond in a humane way when asylum seekers come to the U.S. southern border. Unfortunately, the same sentiment among government actors in the 1980s towards Central Americans from the Northern Triangle is still felt today.
Current Response to Central American Asylum Seekers
The sentiment throughout the years toward Central Americans from the Northern Triangle has continued to be the same regardless of political parties; the fear of opening the floodgates and jeopardizing the existing social order. With the Trump administration there has been more vocal hostility through the conveyance of social media, executive orders, and memos towards refugees, asylum seekers, and immigrants in general. For the 2018 fiscal year, the current administration will drop the admission of refugees around the world from the 2017 mark of 110,000 to 45,000. This includes only 1,500 refugees from Latin America and the Caribbean. This reduction has been a historic low since 1986 when the cap was 67,000. Even though the cap is now 45,000 it could be possible that at the end of the fiscal year that fewer refugees are admitted, as occurred after the 9/11 attacks, when the cap in 2002 was 70,000 but only 27,131 refugees were allowed into the country. A decrease in refugees being admitted was seen in January 2018 when only 1,385 refugees were admitted in contrast to the 6,777 that were admitted in January 2017, and 4,376 in January 2016.
Moreover, the administration has emphasized ensuring that parole and asylum provisions of the federal immigration laws are not illegally exploited. In a memo issued April 6, 2018, President Trump has ordered the end of the practice “catch and release,” which refers to releasing undocumented immigrants into the country while they await immigration hearings. The memo also directed other enhancement to immigration enforcement, which included allocating resources to establish more facilities to detain aliens (also including military facilities), sending asylum officers to immigration detention facilities to determine credible or reasonable fear, and returning removable aliens to their home countries within 60 days, among other provisions. Many of the memo’s provisions were previously stated in the controversial Executive Order 13767 from January 2017.
This April 2018 memo, however, was released in response to the migrant caravan of over 1,000 Central Americans traveling to the U.S. border to seek asylum. The caravan is organized by “Pueblos sin Fronteras” (People without Borders) with the hope that a large group of individuals enduring the treacherous journey to the U.S. border would be more prone to lure off the criminal gangs and cartels that target migrants. Via Twitter and public remarks, President Trump threatened to send military troops to guard the border and warned Mexico to do something about the caravan or face the repercussions in the negotiation of the North American Free Trade Agreement (NAFTA). The caravan was eventually halted, but the response from President Trump sheds light on the prospects Central Americans from the Northern Triangle face in trying to seek asylum. There are 33 countries in Latin America and the Caribbean and for the 2018 fiscal year the cap for refugees from those countries is 1,500. The chances for asylum to be granted to individuals from the Northern Triangle are very slim.
Modernizing United States Jurisprudence
The following explores possible solutions to revamp and
modernize U.S. jurisprudence, so it complies with international law when adjudicating Central American asylum claims, specifically those from the Northern Triangle. The first section covers the 1951 Refugee Convention and how many fundamental principles are not truly being followed by the U.S. The second proposes eliminating two recent requirements for the protected ground of particular social groups. The third suggests characterizing gang-based claims to fall under a political opinion so this opens another avenue in the protected grounds. Finally, the last section proposes providing federal funds to appoint attorneys for asylum seekers and to also incorporate multidisciplinary professionals to strengthen asylum claims.
Abiding by the 1951 Refugee Convention
To find a solution for Central American asylum seekers, specifically those from the Northern Triangle, it is crucial for the United States to truly abide by the 1951 Convention Relating to the Status of Refugees (“The Convention”). The United States made a commitment when it signed the 1967 Protocol and ultimately bounded itself to the obligations of the Convention to protect refugees. The Convention upholds itself upon a number of fundamental principles, most importantly non-discrimination, non-penalization, and non-refoulement. Unfortunately, these principles have not fully been abided by the U.S. and there has been documented discrimination of asylum seekers from Central Americans in the Northern Triangle, most notably in the 1980s when the denial rate was about 97-98% and ultimately led to the ABC settlement (Coutin, 2011, 676). Penalization of individuals seeking asylum is also present through policies like no bond/high bond, detention as a deterrence, and now a significant reduction in the number of refugees allowed from Latin America and the Caribbean for the 2018 fiscal year. The principle of non-refoulment provides that no one should be expelled or returned against his or her will to a territory where he or she fears threats to life or freedom. This principle is not closely followed because individuals who face threats to their life and liberty from gangs are being deported to the country they fled and this does not shock the conscious of the U.S. courts or policy makers.
The Convention is an international instrument that was drafted to give rights and protection to vulnerable individuals. The U.S. needs to reevaluate the true meaning of its commitment to the Convention and how it could change its rhetoric and sentiment towards asylum seekers from the Northern Triangle. A closer examination into its current policies towards asylum seekers and the gravity of the country conditions in the Northern Triangle is needed. It is unfortunate that because of political ideologies, fear, and bias towards a group of people, who so desperately needs protection from the United States, people are being discouraged from coming to the United States.
Eliminating the Two Recent Requirements in Particular Social Groups
A second way the United States could modernize their jurisprudence would be to assist the Northern Triangle asylum seekers by returning to the 1985 Acosta definition of a particular social group and eliminating the two recent requirements from 2006: social distinction and particularity. These two recent requirements have caused conflicting and confusing circuit court decisions, which advocates have highly criticized as duplicative and illogical reasoning. Although the BIA believed it issued clarifications through the decisions W-G-R and M-E-V-G, the cases continue to inflict requirements that are unreasonable interpretations of statute and inconsistent with prior BIA precedent. The Third and Seventh Circuit courts have not explicitly addressed the BIA’s newest articulations of social distinction and particularity, and whether they require a different outcome, though both circuits have analyzed particular social groups without referencing the two additional requirements. Advocates assisting in asylum claims in these two circuit courts have been advised to argue the two new requirements are inconsistent with what is needed to prove the other grounds for asylum and violate the principle of ejusdem generis (“El Salvador: Documentation,” 2016, p. 13). Some arguments include that particularity is basically the same thing as social distinction, where particularity is an unnecessary requirement as a group must be clearly defined for it be recognized in society (“El Salvador: Documentation,” 2016, p. 15-16). Secondly, the new definition of a particular social group creates difficult obstacles and disadvantages for pro se litigants. Lastly, the two requirements do not align with the object and purpose of the 1951 Refugee Convention and its 1967 Protocol relating to the Status of Refugees. The conflicting decisions and uncertainty from the federal circuit court of appeals jeopardizes the lives of asylum seekers who desperately need protection.
Furthermore, abandoning the two recent requirements will eliminate substantial obstacles for asylum seekers in the Northern Triangle and align more with the original intent of international law’s interpretation of particular social groups. When Congress enacted the 1980 Refugee Act it did so with the intent to mirror the United Nations’ definition of refugee. International law and scholarly commentaries interpreted particular social groups broadly as a catchall for refugee claims that did not fall into the narrow grounds of race, religion, nationality, or political opinion. The removal of these two requirements will not grant automatic asylum. An individual will still need to prove the nexus requirement, provide country conditions and reasonable evidence per the Real ID Act, demonstrate the government from their home country cannot protect them, not be subject to any statutory grounds of denial for asylum, and be subject to the discretion of the immigration judge.
Expanding Political Opinion to Include Gang-based Claims
Another option the United States could undertake to assist the Northern Triangle asylum seekers is validating claims made under the protected ground of political opinion. Currently, the legal precedent does not recognize an individual fleeing gang violence or recruitment as a political opinion. A significant case in 2008 was Matter of S.E.G., where one of the Salvadoran applicants asserted his political opinion was his opposition to the gangs and it was for that reason he was persecuted. The immigration judge and the BIA rejected the claim stating the applicant did not show a political motive in resisting the gang recruitment and there was no nexus between the political ground and the persecution. The BIA is interpreting these types of claims with the legal lenses of political theory of asylum, government v. the people, rather than contemporary political opinion, non-government actors v. the people (Locasio, 2015, p. 47). The United Nations High Commissioner for Refugees (UNHCR) in its reports and guidance notes has advised taking into consideration a political opinion that reflects “the reality of the specific geographical, historical, political, legal, judicial, and socio-cultural context of the country of origin” (Locasio, 2015, p. 48).
Typically, a political opinion is thought of as being manifested through protests, strikes, public meetings, or campaigns but UNHCR has stressed that the situation in the Northern Triangle requires a different analysis. The UNHCR notes that often times objecting to the gang’s activities or the state’s gang-related policies may be compared to an opinion that criticizes methods of those in power, thus resulting in a political opinion within the meaning of the refugee definition. The UNHCR emphasizes considering that in the Northern Triangle the gangs like 18 Street and MS-13 are powerful agents that control society through de facto power and are closely intertwined with the State or individual government officials. With the guidance of UNHCR reports, the United States could take them into consideration to be able to reform the adjudication of Northern Triangle asylum cases.
A comparison can be made with Colombian applicants with political opinion asylum claims against the Revolutionary Armed Forces of Colombia (FARC) and Northern Triangle applicants with political opinion asylum claims against the gangs. Colombia has identified the FARC as a narco-territorist organization with funding between $500 million and $600 million annually (Greenberg, 2016, p. 477). The group’s criminal activities have forced more than five million Colombians from their homes (Greenberg, 2016, p. 477). The Seventh Circuit court in Martinez-Buendia v. Holder, recognized the applicant was being persecuted by the FARC on account of her actual and imputed political opinion. Some factors that persuaded the court were the applicant’s refusal to cooperate with the FARC because of her political views and the fact that the FARC viewed her as a member of a rival group. The FARC and gangs in the Northern Triangle share many things in common with regards to posing a significant threat in their countries, large weapon supply, operating revenues in the millions for the FARC, and in the billions for the gangs. There are compelling reports including from the UNHCR providing evidence and country conditions that demonstrate that the gangs in the Northern Triangle are political actors. Nevertheless, courts have refused to identify the Northern Triangle gangs as criminal organizations. If the courts changed direction similarly to how the Colombians did with FARC claims, it would help change the outcome for asylum seekers from the Northern Triangle.
Another way the courts could view gang-based claims as
a political opinion would be if the gang were officially denounced
as a terrorist group. In October 2012, the U.S. Department of Treasury classified MS-13 as a transnational criminal organization (TSO). Similarly, in 2015 the Salvadoran government classified the MS-13 and 18 Street gangs as terrorist groups. President Trump and his administration vowed to dismantle MS-13 affirming the gang was one of the most violent gangs and could qualify as a terrorist organization. Having the U.S. officially label MS-13 as a terrorist group could have pros and cons for asylum seekers from the Northern Triangle. A significant con in labeling MS-13 as a terrorist group is the possibility of being barred from asylum or other humanitarian protections if an individual has provided material support to the terrorist organization. BIA precedent has concluded that there is no implied duress exception to the material-support bar. This could jeopardize many asylum seekers from the Northern Triangle since one of the principle sources of income for the gangs is through extortion of the citizens. Nevertheless, a different avenue could be pursed to make an exception, pardon, or waiver for payments of extortion. The significant pro with the U.S. labeling MS-13 as a terrorist organization would be recognizing the group as a political actor. This could facilitate the process for individuals from the Northern Triangle claiming asylum on account of their political opinion. It is important to note that individuals will not automatically be granted asylum; they will need to show how they have opposed the gang for an anti-gang political-opinion claim, in addition to all the other statutory requirements.
Humanitarian Approach for Asylum Seekers
In addition to the changes that could be done bureaucratically, other resources could be added to positively improve the process for asylum seekers. For the U.S. to uphold its commitment to the 1951 Refugee Convention in assisting refugee and asylum seekers it is crucial to appoint funds to have attorneys represent this group of immigrants. Currently, asylum seekers depend on non-profit organizations, law school clinical programs, and pro-bono attorneys to represent them because many cannot afford a private attorney. Even with all these diligent attorneys working on behalf of asylum seekers there still exists a shortage in legal representation. Many asylum seekers end up representing themselves pro se; in fact, a national study found that about 63 percent of immigrants in removal proceedings were unrepresented and of those in detention facilities about 86 percent were unrepresented (Ardalan, 2015, 1002). These staggering numbers reveal the critical lack of legal representation and the dire consequences it can pose for asylum seekers since those without representation are five times less likely to win in immigration court than those with representation (Ardalan, 2015, 1003). Discretionary federal funding could be a way to finance a system to have appointed representation for asylum seekers with justification that these are efforts to actively abide by the 1951 Refugee Convention.
Also, adopting a multidisciplinary approach in incorporating language services, social work, mental health services, expert services, and investigative services to collaborate with attorneys would enhance the representation of asylum seekers (Ardalan, 2015, 1032). About eighty percent of asylum seekers suffer from post-traumatic stress disorder (PTSD) and are not always able to accurately articulate their stories in a detailed manner to persuade U.S. adjudicators (Ardalan, 2015, 1020). With the assistance from other professionals, any gaps or inconsistencies that could undermine the credibility of the asylum seeker could be resolved through these professionals. With asylum seekers it is common for there to be trauma, language-barriers, cross-cultural differences, or misunderstandings and having professionals from different disciplines address these concerns would facilitate the process for the attorney representing the asylum seeker and for the adjudicator. This approach of multidisciplinary representation for asylum seekers has been successfully implemented in some law school clinics and non-profit organizations. With federal funds used to appoint attorneys and other professionals from different disciplines to assist asylum seekers would result in effective, high quality representation to determine adjudication. This type of approach would be a positive humane change that would truly demonstrate the commitment to assist asylum seekers who face torture or even death if returned to their country.
The United States has come a long way with its negative treatment of asylum seekers from the Northern Triangle. It is clear through the analysis of the different areas of government and their treatment of asylum claims that there are discrimination and deterrence efforts. The constant sentiment and fear of opening the floodgates are things that need to be pushed aside to truly address this issue in a humanitarian way. As history has shown dismissive behavior does not solve the problem. At a minimum the implementation of appointed legal representation and multidisciplinary professionals to asylum seekers would create a drastic, positive change. This step could be the beginning to a positive direction that could cause a ripple effect to other areas of government. The United States made an international commitment that must be truly upheld to ensure asylum seekers are protected. Now is the time to answer the desperate pleas of individuals from the Northern Triangle.
*Brenda P. Garcia is a student at the MSU College of Law.
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