Should Migrants Fleeing Gang Violence in Central America Be Accorded Refugee Status?

Should Migrants Fleeing Gang Violence in Central America Be Accorded Refugee Status?

Sylvia Longmire

In early June 2014, the newest major surge of migrants seeking safety, opportunity, and family hit the southwest border of the United States. These overwhelming numbers of immigrants entering or attempting to enter the country illegally aren’t unprecedented; the Mariel boatlift brought over 120,000 Cuban nationals to south Florida in the course of just a few months in 1980. But what is setting the current influx apart is the sheer number of unaccompanied children who make up the majority of the tidal wave.

According to US government estimates, over 52,000 unaccompanied alien children (UACs) were apprehended by the US Border Patrol between October 2013 and mid-June 2014. This is more than twice the amount that were apprehended in all of fiscal year 2013, and that number is expected to top 60,000 by the end of this fiscal year.[1] The vast majority of them were from Guatemala, Honduras, and El Salvador—countries that have seen a different kind of surge; specifically, a dramatic escalation in violence perpetrated by maras, or local gangs, and Mexican transnational criminal organizations (TCOs) that have infiltrated this region. During Congressional testimony in June 2014, Chairman of the House Committee on Homeland Security Michael McCaul said US Customs and Border Protection estimated that more than 150,000 UACs could attempt to cross our southwest border illegally in fiscal year 2015.[2]

An enormous debate is raging over the true cause(s) of the immigration surge—misinformation being spread in Central America about the quick release by US authorities of families with children (and more so UACs), or the deteriorating security and economic conditions in these immigrants’ home countries. But one debate that hasn’t been nearly as loud—and could dramatically alter the way we view and legally treat many of these UACs—is whether or not individuals fleeing drug-related violence are simply illegal immigrants, or if they should actually qualify for internationally-recognized refugee status.

The United Nations 1951 Refugee Convention defines a refugee as someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.”[3] Under US law, a refugee is “located outside of the United States, is of special humanitarian concern to the United States, demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group, is not firmly resettled in another country, and is admissible to the United States.”[4]

The words “special humanitarian concern” imply at first glance that the US government has some leeway in applying the definition of refugee. Title 8 of US Code, section 1157 (Annual admission of refugees and admission of emergency situation refugees) states, “Admissions…shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after appropriate consultation.”[5] The President can also raise any caps on the number of refugees admitted into the United States in the case of an emergency or if he has any “grave humanitarian concerns.”

The main question then becomes whether or not some—or all—UACs and their family members from Mexico, Guatemala, Honduras, or El Salvador could qualify for refugee status based on their individual circumstances. The United Nations High Commissioner for Refugees (UNHCR) makes it clear that there is a distinct difference between migrants and refugees. According to the organization, “Migrants, especially economic migrants, choose to move in order to improve the future prospects of themselves and their families.” It continued, “Refugees have to move if they are to save their lives or preserve their freedom.” But where the area grows gray for Central American migrants is in the statement, “They have no protection from their own state—indeed it is often their own government that is threatening to persecute them. If other countries do not let them in, and do not help them once they are in, then they may be condemning them to death.”[6]

There is no question that hundreds of thousands of migrants from Mexico and all points south embark on the deadly journey north to the US border to seek better employment and educational opportunities. The areas they come from are often very poor, and they cannot earn the kind of income that would comfortably support a family. This is why so many illegal immigrants living and working here in the United States send the lion’s share of their earnings back to their home countries in the form of remittances. According to the Pew Research Center, Mexican migrants’ remittances from the United States to their family members back home amounted to $22 billion in 2013. Money sent to all other Spanish-speaking Latin American countries totaled $31.8 billion for the same year.[7]

Clearly these individuals don’t qualify as refugees, but what about those who are truly eligible for and claim asylum? As the violence in Mexico has increased, so has the number of asylum applications filed each year. In 2005, there were 2,670 filed, and that number rose to 2,818 in 2006. By 2010, applications had increased to 3,231, and nearly doubled to 6,133 in fiscal year 2012. However, only 2 percent of requests for Mexico between 2007 and 2011 were granted, compared to 38 percent of requests from Chinese nationals and 89 percent from Armenian applicants.[8] By the end of June 2013, credible fear claims made along the US-Mexico border by all nationalities had reached 14,610 in number (compared to 36,026 nationwide by fiscal year’s end).[9] From October 2010 to the present, US Citizenship and Immigration Services (USCIS) data show that El Salvador, Guatemala, Honduras, and—in smaller numbers—Mexico have tended to be among the top five countries of origin of individuals presenting credible fear claims.[10]

Because of these growing numbers, concern among some US elected officials is that immigrants are abusing the asylum system; specifically, they are being told by coyotes (their human smugglers) or others to claim “credible fear,” which will allow them to stay in the country longer while they go through the often drawn-out determination process and get scheduled for a hearing before an immigration judge. One of the main factors Immigration and Customs Enforcement (ICE) officials and immigration judges will examine in determining whether or not these individuals are true refugees and merit the granting of asylum is the role their home country’s government played in their alleged persecution. And depending on the interpretation, a lack of state protection and government persecution can mean different things.

The governments of Mexico, Honduras, Guatemala, and El Salvador desperately want to rid their countries of TCOs and maras, as well as the violence and illegal drugs that go along with them. They have initiated several different strategies to fight these criminal groups, often with US financial support but with varying levels of success. In fact, their efforts have been met mostly with failure, as even the arrests or killings of major TCO figures almost never results in the interruption of operations at the street level, and almost always results in at least a temporary increase in violence.

However, this fight is usually conducted at the highest levels of government. Endemic corruption at the state and especially the municipal level has allowed TCOs to operate in these countries with impunity in many regions. In the case of Mexico, thirteen mayors in the country were targeted and killed in 2010 alone, and in August 2011, the mayor of Zacualpan in Mexico state was beaten to death, ostensibly because he did not adequately follow TCO orders to facilitate their activities. According to InsightCrime.org, “Because mayors are in charge of determining security policy on a local level—including appointing police chiefs—they are seen as key assets to criminal organizations looking to control police activity in their territory.”[11] This level of government control and intimidation by TCOs has resulted in a situation where many Mexican government officials are completely unable to prevent TCOs from engaging in violent activity, or are fully aware of TCO activities in their cities or towns and choose not to take action because of the financial benefits they receive from TCO members.

Although the previous Mexican administration under President Felipe Calderón denied human rights abuses and kidnapping were being committed by police or the military, the current administration under President Enrique Peña Nieto acknowledges that more than 27,000 people are missing or have disappeared as a result of human rights abuses by Mexican police and/or military.[12] According to Human Rights Watch, at least 30 percent of the missing persons’ cases were committed with the help of the legal authorities.[13] In February 2013, Human Rights Watch released a report finding that Mexico’s security forces have participated in widespread enforced disappearances. The 176-page report, “Mexico’s Disappeared: The Enduring Cost of a Crisis Ignored,” documents nearly 250 “disappearances” during the Calderón’s administration, from December 2006 to December 2012. In 149 of those cases, Human Rights Watch found compelling evidence of enforced disappearances, involving the participation of state agents.[14]

Very similar incidents have been observed repeatedly in Honduras, Guatemala, and El Salvador. Based on this data, it should be apparent that these countries’ governments are unable in many instances to provide their citizens with any meaningful level of protection or security. At the very least, government and police officials at the state and municipal level are facilitating violence and crimes like kidnapping and extortion being committed against innocent bystanders. But perhaps an easier way to determine if Central American migrants fleeing TCO and gang-related violence should qualify as refugees is to look at more clear-cut persecutions and refugee movements elsewhere in the world.

The ongoing civil war in South Sudan is probably the strongest example of government-instigated oppression and violence. Thousands of people have been killed, including many innocents, and the United Nations estimates that there are approximately half a million South Sudanese refugees currently living in neighboring countries as a result of the conflict. While few communist governments remain in the world, the oppression imposed on citizens of countries like China, North Korea, and Cuba with regards to their freedoms and human rights clearly warrants the refugee designation. Tens of thousands of Syrians are currently fleeing to Europe as a result of political violence in their country.

In order to provide the appropriate protections for refugees who hail from these countries, USCIS, by authority of the Secretary of Homeland Security, can assign Temporary Protected Status (TPS) to applicants who have previously arrived in the United States. According to USCIS, the DHS Secretary “may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.” That status may be granted for temporary country conditions that include ongoing armed conflict (to include civil war), a natural disaster or epidemic, or “other extraordinary or temporary conditions.” Being granted TPS doesn’t create a pathway to citizenship, but someone with that status cannot be deported and does have the right to work.[15]

As expected, Somalia, Sudan, South Sudan, and Syria are on the list of TPS-eligible countries. Three Central American countries are on the list as well: El Salvador, Honduras, and Nicaragua. However, only immigrants who arrived in the United States before a certain date—aligning with a period of civil strife in these countries—are eligible, and those dates go back over a decade for each. In other words, anyone who has arrived after 2001 from these countries is ineligible for TPS status. What is interesting is that the nature of the TPS program is to protect refugees from temporary country conditions. The political violence that initiated eligibility for El Salvador and Honduras doesn’t exist in that same form anymore; however, the gang and general criminal violence still exists—and has gotten considerably worse. Yet, the dates before which immigrants from those countries must have arrived to be eligible for TPS have not been updated.

Unfortunately, the meaning of “ongoing armed conflict” for DHS and the UN has not kept up with today’s geopolitical realities, particularly in Central America. The definition for most governing bodies hinges on the archaic notion of conflicts between legitimate state actors, which automatically excludes violence perpetrated by TCOs and gangs. But the criminal insurgency that is occurring in Central America has replaced conventional conflict. Small Wars Journal’s John Sullivan wrote in December 2012, “Criminal insurgency is the mechanism of the confrontation with the state that results when relationships between organized crime and the state fall into disequilibrium… Criminal insurgency is different from conventional terrorism and insurgency because the criminal insurgents’ sole political motive is to gain autonomy and economic control over territory.  They do so by hollowing out the state and creating criminal enclaves to secure freedom to maneuver.”[16]

Furthermore, Sullivan states that criminal insurgencies can exist at several levels. Most relevant for this argument are two levels: battles for control of the “parallel state,” which occur within the parallel state’s governance space, but also spill over to affect the public at large and the police and military forces that seek to contain the violence and curb the erosion of governmental legitimacy and solvency, and combat against the state, in which criminal enterprise directly engages the state itself to secure or sustain its independent range of action. TCOs are active belligerents against the state in this scenario.[17] Based on these definitions and concepts, several countries in Central America are experiencing active criminal insurgencies, and thus “ongoing armed conflicts” that are resulting in what has been called a “humanitarian crisis” by President Barack Obama (and several other US politicians) along our southwest border.

In fact, several elected officials have used the term “refugee” in their press releases and other official statements to refer to recently arrived illegal immigrants. In a hearing before Congress on June 24, 2014, Chairman of the House Committee on Homeland Security Michael McCaul stated, “Today on the Southwest border we are facing an escalating refugee crisis.”[18] Senator Robert Menendez (D-NJ), Chairman of the Senate Foreign Relations Committee, said at a June 19 press conference, “Let’s be clear; this is a humanitarian and refugee crisis.”[19]

Even the UNHCR is taking a closer look at the significantly higher numbers of UACs traveling from Central America to the United States. In March 2014, the agency launched a report titled “Children on the Run,” which was based on UNHCR’s work, together with US authorities, to improve the protection screening of unaccompanied and separated children at the southern border, and on individual interviews with over 400 UACs. During his opening statement at the report’s launch, Commissioner Antonio Gutierrez said, “We found that the large majority of these children may very well have international protection concerns – fleeing armed actors, persecution, violence in their communities and abuse in their homes. Most of them had one thing in common – their conviction that their States were unable to protect them.” He continued, “Our central conclusion from the study is therefore that unaccompanied and separated children from El Salvador, Guatemala, Honduras and Mexico should generally be screened for international protection needs. We must uphold the human rights of the child as laid out in the relevant international and regional instruments – as well as the right to seek asylum and protection under the 1951 [Refugee] Convention and its 1967 Protocol.”[20]

While there is an argument to be made that at least a good portion of Central American migrants, and especially unaccompanied children, qualify for refugee status—approximately 58 percent, according to that same UNHCR report—determining who those people are is time-consuming and labor-intensive, as evidenced by the extremely overcrowded US Border Patrol processing facilities in south Texas and southern Arizona. But the UNHCR also explains that refugees and migrants travel in a similar manner along the same travel routes. The agency claims that while there are true refugees and asylum seekers mixed in with economic migrants in the Americas, “the percentage is small, [and] they are less easy to identify.”[21]

Then, of course, there are the political ramifications to deal with as a result of casting the refugee blanket over most immigrants crossing the border illegally from these countries. Paul Rexton Kan wrote in October 2011, “Allowing Mexicans to claim asylum could poten­tially open a floodgate of migrants to the United States during a time when there is a very contentious na­tional debate over US immigration laws pertaining to illegal immigrants.” He continued, “On the other hand, to deny the claims of asylum seekers and return them to Mexico, where they might very well be killed, strikes at the heart of American values of justice and humanitarian­ism.”[22]

Unfortunately, the debate over what form that humanitarianism should take has the country split in two. Far-right conservatives have eschewed any form of compromise on passing immigration reform legislation, and are calling for the immediate deportation of all illegal immigrants, regardless of age or dangers in their home countries. Worse yet, any moderate conservatives who attempt to show compassion towards unaccompanied immigrant children or support some type of guest worker program are labeled as traitors to the party. Those on the political left are calling for immediate immigration reform in Congress and using the current crisis on the border as an example of what the failure to pass reform can cause. Some on the far left have called for completely open borders, and claim that border security measures are discriminatory. A 2012 report by Amnesty International stated that “communities living along the border—particularly Latinos and individuals perceived to be of Latino origin, and indigenous communities—are disproportionately affected by a range of immigration control measures, resulting in a pattern of human rights violations.”[23]

The truth is that while a significant number of immigrants—especially unaccompanied children—arriving illegally in the United States from Central America meet the definition of refugees and would likely qualify for relief from removal under international conventions and US law, the US government will be very spare in its use of the term “refugee” for fear of sparking an even bigger crisis. DHS is already dealing with damage control on the heels of reports that many immigrants in detention are saying they heard on the radio or from friends in their home countries that the US government was giving permisos, or permits to stay, to children arriving from Central America. DHS took these rumors seriously enough to have Secretary Jeh Johnson issue an “open letter” to Central American parents advising them that there are no permisos, and that they should not consider allowing their children to make such a dangerous trip.[24]

As long as the violence being committed against Central American citizens and their children is perpetrated by non-state actors like TCOs and gangs, the US government will remain hesitant in granting asylum—and thus refugee status—to individuals attempting to enter the United States illegally. Those who have legal assistance from immigration attorneys who know how to navigate the complex asylum application process will meet with the most success, but many will not have this luxury. And if they make the effort to show up for their immigration hearings or if ICE makes the effort to find them if they abscond, they will most likely be removed to their countries of origin, regardless of the true nature of “ongoing armed conflict” in those countries.

End Notes