In the United States, not all refugees are created equal.
The 63,000 unaccompanied children and 63,000 adults with children who have been detained on the southern US border since October are learning this the hard way. Fleeing widespread violence in their home countries, thousands of the children are housed in crowded detention centers, often without adequate food, sleeping conditions or medical care. President Obama has said publicly that most will be sent back to their home countries.
The thousands of Mexicans and Central Americans who apply for asylum in the US are granted it at rates lower than those for almost any other country in the world. How they must envy arriving Cubans, for whom the Cuban American Adjustment Act ensures they will be able to stay in the United States, without even having to apply for asylum.
The disparity is a stark example of a wider trend: In the United States, the ostensibly impartial refugee and asylum process has long been shaped to reflect foreign and domestic political interests. And in multiple ways, Central Americans get the short end of the stick.
Cold War Politics
“Historically and currently, the United States does not recognize Central American asylum claims,” said Elizabeth Kennedy, a Fulbright scholar working with returned child migrants in El Salvador.
Not long ago, the asylum process was political by design, and without much controversy. Reviewing the modern history of asylum in a 2007 article in the Georgetown Immigration Law Journal, David Swanwick explained that during the Cold War era, US asylum policy almost completely denied entry to applicants who were not fleeing a Communist or Middle Eastern country.
Swanwick writes that during the Cold War, “U.S. immigration officials pursued [foreign policy objectives] by granting asylum to individuals fleeing U.S. enemies, thus showing those enemies to be persecutors, and similarly by refusing to grant asylum to individuals fleeing U.S. allies, in order to avoid making those allies look bad.” As one US State Department official said in 1958, “each refugee from the Soviet orbit represents a failure of the Communist system.”
Policy was nominally changed in 1968 with the ratification of the 1967 United Nations Protocol Relating to the Status of Refugees, but in practice foreign policy continued to dominate the US asylum system into well into the 1980s.
In that decade, the United States backed the governments of El Salvador and Guatemala in their brutal campaigns against left-wing guerrilla insurgencies. An estimated one million Salvadorans and Guatemalans fled to the United States to escape the violence, according to an article by Susan Gzesh at the Migration Policy Institute.
The detained arrivals were placed in crowded detention centers and discouraged from applying for asylum. The Reagan administration sought to portray these immigrants as “economic migrants,” and delivered letters to immigration judges pressuring them to deny asylum to the Salvadorans and Guatemalans who did apply.
“Approval rates for Salvadoran and Guatemalan asylum cases were under three percent in 1984. In the same year, the approval rate for Iranians was 60 percent, 40 percent for Afghans fleeing the Soviet invasion, and 32 percent for Poles,” Gzesh wrote.
A 1987 class-action lawsuit on behalf of Salvadoran and Guatemalan asylum seekers marked a turning point for asylum evaluation criteria. The settlement of the case banned foreign policy considerations from asylum decisions, and allowed all of the members of the class to reapply for asylum. The suit, coupled with the end of the Cold War and heightened public debate about the asylum process, led to an increased emphasis on humanitarianism into the 1990s.
Capable of Persecution
But despite the shift in emphasis and language, there are still wide disparities in asylum grant rates based on country of origin.
According to figures available on the Department of Justice website, from fiscal years 2009 to 2013, roughly one percent of Mexicans’ asylum requests were granted, about five percent of requests from residents of El Salvador and Honduras, six percent from Guatemalans, 37 percent from Venezuelans, 38 percent from Russians, 47 percent from Chinese, 57 percent from Somalis, and 80 percent from Ethiopians.
“Each case in immigration court, to include asylum cases, has its own set of facts and variables that affect its outcome,” Kathryn Mattingly, a Department of Justice spokeswoman, said in an email comment.
“Immigration judges adjudicate cases on a case-by-case basis, according to U.S. immigration law, regulations and precedent decisions,” she said. “Immigration judges consider all evidence and arguments presented by both parties and decide each case based on that information.”
Between-country disparities aren’t inherently wrong. If human rights are being more egregiously violated in China than Honduras, for instance, it is natural that Chinese asylum seekers would be more likely to be granted refuge in the United States.
“The first thing we can think of is to send our children to the United States,” a mother of two from the violence-ravaged Honduran city of San Pedro Sula told the New York Times. “That’s the idea, to leave.”
The stories of arriving children—like that of AdriÃ¡n, who grew up on the streets of Guatemala City and fled after gang members demanding money peppered his small clothing stand with bullets—indicate widespread persecution in the nations they are fleeing.
But such violence may not be a legal foundation for asylum in the United States. “Who is capable of persecution [under US asylum law]? Historically, that had to be a state actor or very powerful non-state actor with direct political purpose,” Kennedy said from El Salvador.
“The problem here is that the main persecutors are gangs, cartels, and other organized criminal actors,” she said.
In US asylum hearings, judges will typically try to make the case that Central American applicants are victims of random violence or targets of local criminal groups, and therefore don’t qualify for asylum based on US law, according to Kennedy.
Most Central American asylum seekers stake their claim on being persecuted on their status as a member of a “particular social group,” one of the categories of persecution that makes someone eligible for asylum protection under US law. Some articulations of particular social groups include children who are forcibly recruited into gangs, women who are forced to be the “girlfriends” of gang members, or people fleeing police violence, according to Ashley Huebner, managing attorney of the asylum and immigrant children protection projects at the National Immigrant Justice Center in Chicago.
“These types of claims have grown increasingly difficult as case law has come down primarily from the Department of Justice that has restricted the ability of these individuals to seek asylum,” Huebner said.
Huebner and others argue that underlying the stinginess toward Central Americans is a fear of “opening the floodgates”—that is, creating the incentive for an unmanageable or undesirable number of Central Americans to use asylum as a backdoor route to legal status in the United States. She says that between the lines of recent judicial decisions is an effort to put up barriers specifically for people seeking asylum from Central America.
“The four precedential decisions that have been issued by the [Board of Immigration Appeals] that specifically address [particular social Group claims] were four cases involving individuals from Central America who were fleeing gang violence. The decisions are very clearly written in a results-driven way,” she said.
The United Nations Refugee Agency, in its “Children on the Run” report, found that 58 percent of the 404 children they interviewed at the US border were forced migrants who needed international protection.
The Obama administration has argued that most of the recent Central American arrivals don’t qualify for asylum. “It’s unlikely that most of these kids will qualify for humanitarian relief,” White House spokesman Josh Earnest said in July. “It means they will not have a legal basis for remaining in this country and will be returned.”
The foreign policy considerations that birthed American asylum, while no longer enshrined in law, still shine through. A 2009 study, for instance, found that “For each one percentage point increase in US trade to a country, asylum seekers from that country have between approximately 0.74 and 1.18 percentage points less chance of receiving affirmative asylum status from officers and judges, respectively.” Asylum seekers from countries under US economic sanction regimes also have a moderately greater chance of being accepted, though paradoxically, so do asylum seekers from countries receiving US military aid.
Swanwick, writing in 2007, found that asylum seekers from an ally country in the US war on terror had a lower admittance rate than those from countries deemed enemies.
But if the foreign policy criteria for asylum have been formally abolished, why do the disparities persist?
“Basically, judges are people just like we are,” said Christopher Fariss, assistant professor of political science at Penn State University, and one of the authors of the 2009 study on disparities in asylum rates.
“It might not even be a conscious consideration that the judge is making, but if they are coming from a place that we don’t have a good relationship with, then maybe they give that person the benefit of the doubt,” he said.
Biased judgments may also be exacerbated by a shortage of resources devoted to immigrant processing.
“The number of cases that each immigration judge has to see per year is very, very high,” Fariss said. “We all take shortcuts when we’re overloaded with work, and so I could see—though I haven’t seen the data—I could see judges being more influenced by cognitive shortcuts like their impression of the country the person came from, given an overloaded docket.”
A Way Forward
An unsuccessful asylum petition can have deadly consequences. Kennedy, the Fulbright scholar based in El Salvador, said she encounters about one newspaper story each month in El Salvador, Guatemala, and Honduras about a US deportee who has been murdered.
”It might be higher,” she said, since many families are reluctant to publicly acknowledge that a member of their family has been deported.
Perhaps a better model for US asylum policy, Kennedy says, is the 1984 Cartagena declaration, published in the midst of the Central American civil wars at a summit of migration experts from across the Americas. The declaration defines refugees more broadly and mandates a broader set of responsibilities toward them from receiving governments.
According to the declaration, governments should commit “To ensure that any repatriation of refugees is voluntary, and is declared to be so on an individual basis, and is carried out with the co-operation of UNHCR.”
The Declaration is one way to reverse an asylum policy that falls beneath the level of generosity wealthy countries like the United States are capable of.
“The reality of refugee and asylum policy in our world today is that the poorest nations are receiving the majority of asylum seekers and refugees,” Kennedy said. “Wealthy nations have been very restrictive in who they admit and who they allow to get asylum, and that is a great injustice, because often times their policies are contributing to the things that create refugees.”
That’s the deeper solution to asylum problems, attacking forced migration at the source. In the Central American case, a principal culprit is the US drug war, according to Kennedy, which fuels violence in countries like Honduras, El Salvador and Mexico in order to meet US demand for recreational drugs.
“What would prevent people from producing drugs and working to supply them is going to be the same as what would prevent people from joining gangs and organized crime, and that’s genuine economic and social development,” Kennedy said.
“The United States does not have a good track record of investing in that.”