Who Counts as a Refugee in US Immigration Policy—and Who Doesn’t

By Pablo Lastra, Esq., Asylum Program Coordinator, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

You can read the original article on The Nation.

School children in San Jose Las Flores in the northern Cuchumatanes mountains of Guatemala. (AP Photo/Luis Soto)
School children in San Jose Las Flores in the northern Cuchumatanes mountains of Guatemala. (AP Photo/Luis Soto)

[Some names and identifying details have been changed.]
Giovani is 17, from El Salvador, and came to the United States alone in December, making him one of tens of thousands of Central American minors who have crossed the Rio Grande unaccompanied this year. He is lanky and tall, with a hard stare but a fast smile. Giovani left El Salvador twice, with the help of a coyote, traveling by bus through Mexico. The first time, he was detained by Mexican authorities in a hotel raid, and placed in a facility for two weeks until they were able to reunite him with family back home. The second time, he found himself alone in the Texas scrub, not knowing which way to go, and so he turned himself in to Border Patrol agents. After a brief detention in Texas, he took his first plane ride to Chicago. When the plane landed, he broke from the pack of children on the runway to touch the fresh snow on the ground, the first he had ever seen.
But Giovani’s journey had its origins in 1998, when his mother, Maria, left El Salvador to escape her boyfriend, a violent man who regularly hit her and stopped her from working. Maria is a tired-looking woman in her early 40s. A server at a restaurant, she has spent endless hours on her feet in low-paying jobs.
After realizing that she could not make ends meet in El Salvador, Maria took Giovani, then 18 months, and his brother to their grandmother’s, mortgaged her home, and used the money to get to the United States, which she says was a difficult choice, especially as it meant leaving her children. She describes the fifteen-hour walk through the desert as difficult but bearable, especially compared to where she ended up: Kansas City in the middle of winter. There was snow everywhere, and the desert had only been one link from a hard life to another.
Maria’s trip came at the tail end of a wave of Central American migration to the United States, when civil wars had engulfed the region. In the 1980s and early 1990s, as right-wing governments battled leftist rebels in Guatemala and El Salvador, and a leftist government battled right-wing rebels in Nicaragua, hundreds of thousands were displaced. As many as 1 million Central Americans fled to the United States. Then, as now, some demonized the newcomers as invaders, while others urged that they be recognized as refugees.
During the 1980s, asylum lawyers faced the challenge of convincing immigration judges that violence was actually taking place in Central America. The Reagan administration, fighting the last decade of the Cold War, was doing its best to keep the brutality of US-allied governments out of the news. The State Department, which weighed in on most asylum cases, would deny widely documented massacres. In El Mozote, El Salvador, where government death squads raped and slaughtered as many as 900 people, the State Department reported that nothing had happened. During the height of the genocide in Guatemala, President Reagan told reporters that the dictatorship had gotten a “bum rap” on human rights.
Refugees from the civil wars also faced legal obstacles. Border guards treated arriving refugees as economic migrants and swiftly repatriated them, often to their deaths. Immigration judges, even when convinced that individuals faced real threats upon returning, often denied them asylum on the grounds that they did not fit the technical definition of “refugee,” which requires a person to show he has a well-founded fear of persecution on account of race, religion, national origin, political opinion or membership in a particular social group. Throughout the 1980s, immigration judges regularly ruled that Central Americans targeted by government death squads were not being persecuted because of their political opinions, and therefore they were not eligible for asylum.
Central American migration in the 1980s and 1990s shaped the modern US immigration system. In 1991, a lawsuit forced the Immigration and Naturalization Service to fairly consider granting asylum to more Central American applicants. With the Cold War ending, decision makers became less influenced by whether refugees were coming from a “friendly nation” or a communist state, and judges were becoming better educated about the abuses taking place. As a result, migration from Central America increased significantly—the Central American–born population in the United States grew from 345,000 in 1980 to 3 million today. Overall, migration was also on the rise. In 1986, the Immigration Reform and Control Act (IRCA) gave broad amnesty to undocumented immigrants in the United States. But economic woes in Mexico continued to send even more people to the United States. The foreign-born population doubled in the decade after IRCA, and soon there was a backlash.
In 1996, Congress passed the most significant immigration reform since 1965, and also the most punitive. The Illegal Immigration Reform and Immigrant Responsibility Act cut off a host of public benefits, required that many immigrants be incarcerated during immigration proceedings, beefed up border enforcement, expanded the list of deportable crimes and closed the courts to many important legal challenges. The system engineered by the 1996 reforms is largely the one we still have today. One of its most consequential innovations was to introduce an expedited deportation process, under which border guards could summarily deport those who did not claim to fear persecution back home. For asylum seekers, the law imposed tight filing deadlines, and included provisions that DHS has interpreted as cutting off eligibility for anyone who had been deported in the past.

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For Maria, Giovani’s mother, life in the United States was hard. “I had imagined it would be like a wonderland,” she says. “Everything rose-colored and like a Hollywood movie.” But in order to save money to send back home, she had to share a $300 apartment with four other people and work sixteen-hour days at two jobs. Having only completed fifth grade herself, Maria had high hopes for her children: “I dreamt they would become lawyers or doctors.” But she paid a high price for pursuing that dream. Maria knew Giovani only by the sound of his voice, heard in rushed telephone conversations.
Having come to the States illegally, Maria found herself surrounded by the aggressive enforcement regime enacted by the 1996 reforms, and she was keenly attuned to the message that Latin American immigrants without documentation had few legal options to regularize their status.
Meanwhile, her partner squandered the thousands of dollars she sent home that she meant for him to use to pay off the mortgage she had taken out.
After five years in the United States, Maria went back to El Salvador in 2003. “I missed my children too much,” she says. She set up a shop that sold pupusas, a fried corn pastry filled with meat and beans, in the local market. For seven years, she tried to eke out a living. But El Salvador had changed since she first left. She now saw graffiti and tattooed men everywhere. Friends and family warned her she would now have to pay “rent” to the gangs.
Gangs had flourished in the aftermath of El Salvador’s civil war, abetted by a weak and corrupt government, and quickly spread into Guatemala and Honduras. Today, they are more powerful than the police. They extort bus drivers, market vendors, teachers, those who work at restaurants and hotels; they also forcibly draft children as young as 6 to serve as lookouts, run drugs, rob and kill.
Maria found the gangs’ violence even worse than the civil war she had experienced as a child. After a few years, she could no longer afford their escalating extortion demands. Her partner, Giovani’s stepfather, to whom she returned when she went back to El Salvador in 2003, also continued to whip her with his belt, and to aggressively punish the children for minor misbehavior. With no way to escape the gangs or her partner within her tiny country, Maria returned to the United States in 2010, but couldn’t bring Giovani, as she thought he was too young for the dangerous trip.
As the three Northern Triangle Central American nations struggled with gangs in the post–civil wars era, and their governments failed to protect their people, US asylum policy softened a bit but also became harsher in other ways. In 2004 and 2009, the Department of Homeland Security recognized that many women fleeing domestic abuse were indeed refugees, and immigration judges started granting some of their asylum claims (such violence in Central America was and continues to be pervasive and widely accepted; El Salvador’s femicide rate is the highest in the world). But in 2005, the REAL ID Act also imposed much more stringent credibility standards on refugees as well. In 2008, Congress decided that the expedited removal system it created in 1996, which allowed border officials to deport undocumented immigrants without permitting them to go before an immigration judge, was perilous for children; specifically, the Trafficking Victims Protection Reauthorization Act was animated by the concern that children who were apprehended by the Border Patrol “were not being adequately screened” for danger back home. Indeed, it is hard to imagine a child, caught in the desert, cogently explaining her plight to a stranger in uniform, especially if she is traumatized. The 2008 law therefore required a full hearing before an immigration judge for most children.

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After his mother left for a second time, Giovani, then 13, also moved out of his stepfather’s house to live with his biological father, with whom Maria had never had a formal relationship. The move brought him to a rough neighborhood in a Salvadoran city where the MS-13 and Mara-18, the country’s two largest gangs, fought bitterly for control. “The gangs own the place,” Giovani says. “There’s graffiti everywhere, and you see guys with tattoos and baggy clothes just glaring at people.”
Giovani was nervous in his new neighborhood. “I thought if I kept to myself, nobody would bother me,” he said. MS-13 members roamed the halls of his school. Giovani knew what they were capable of. When Giovani was 13, a close friend and her mother had been gunned down at their vegetable stall in the market after her brother refused to carry drugs for one of the gangs. Her brother’s corpse was eventually found in an abandoned lot. “I cried a ton,” Giovani remembers. He would tell his mother about the gangs on the phone. “I was scared for him,” Maria says. “I thought maybe I should bring him to be with me here.”
It wasn’t long before the gangs turned their attention to Giovani, and in September of last year, MS-13 turned its attention to Giovani. As he was leaving school, in the scrum of students rushing home, a group of four or five men were waiting for him. The men told him the mareros—gang members—wanted to talk. They handed him a cellphone. “Look, kid, I am with MS,” the voice said. “I need you to work with us. We need kids like you.” The voice identified members of Giovani’s family by name, only to let Giovani know that they knew who he was.
Giovani was terrified. He skipped a week of school. When he finally returned, he found the mareros waiting outside the building again, only this time there were more. As he tried to race off on his bike, they caught him; they had been watching his house, they said. They took him to an empty lot, where many others, including men in their 40s, had congregated. Scared for his life, he tought, “Why me, God? What did I do?”
The leader told Giovani that they needed him to carry drugs and guns, because, as a private school student, the police would not suspect him. Giovani, still in his school-issued gray pants, white shirt and red vest, told the leader he didn’t want to get in trouble. The leader said students from eighth grade onward did not have a choice. “You have to help us. That’s just how it is.” He said they would kill Giovani’s father if he didn’t do what they said. “I didn’t know what to do, so I just told them I wanted to go, to please let me go and that I wouldn’t help them,” Giovani remembers.
They marched him to the back of the lot and told him to cover his face. “I could feel death at that moment,” he said. The next thing he knew, he took a punch to the back and fell to the ground; as he was curled up, three men stood over him and kicked his head and stomach until he was crying. But the leader said, “He’s still okay. Do it again.” So they beat him some more. “I thought they were going to kill me with their blows,” he said. He struggled to get up and was told that if he went to the police, the gang would know. They said they would find him again soon, to see if he had changed his mind.
“Just imagine what it feels like,” says Maria, as she listens to Giovani’s story. “Hearing about your child being hurt like that. And you can’t do anything about it.”
So Maria sent money to a smuggler. Giovani left El Salvador a few days later, in October, but his trip was cut short in Veracruz by Mexican immigration authorities, who sent him back. He tried again in December. This time he made it, and was left by the smuggler around Christmas time in the Texas desert, where the Border Patrol found him.
With that, Giovani became one of thousands of Central American children coming to the United States. The media started widely covering the humanitarian crisis in June, after photographs of children packed in windowless concrete rooms began to circulate online. But this wave has been building for a long time. In the United States, the number of unaccompanied minors had been doubling every year since 2011—the estimate was already at 60,000 by late 2013. But now the flow has accelerated. Up to 90,000 may arrive by the end of this year. (And 140,000 next year.) Asylum claims filed by Central Americans in Mexico, Panama, Nicaragua, Costa Rica and Belize have also risen 435 percent since 2009.
Many of the children at the center of the highly politicized debate are Giovani’s age; many are much younger. In some ways, they look a lot like the previous wave of people running across Mexico to the United States. “It’s very similar, in the sense that these are people who consider their lives to be in danger,” said Lisa Brodyaga, a longtime immigration lawyer in Texas. “Now, instead of it being the death squads in El Salvador, it’s the maras”—the gangs.
As the numbers increase, US asylum law is, as always, in flux. Immigration courts have seen a general rise in claims involving gang recruitment and extortion, both from children and adults. Some claims have succeeded, but many have not. Although the State Department now openly reports the killings taking place in Honduras, Guatemala and El Salvador, immigration judges often do not believe that the individuals before them face specific threats of violence and take the position that violence from gangs is not a basis for asylum. And echoing the last wave’s legalistic obstacles, the agency that interprets immigration law—the Board of Immigration Appeals—has, over the last decade, increasingly narrowed the refugee definition to exclude many gang-related claims. The widely understood reason, according to immigration lawyers, has been a fear of opening the floodgates. In theory, that concern should not affect any individual’s case; as the federal appeals court in Chicago wrote, “It would be antithetical to asylum law to deny refuge to a group of persecuted individuals who have valid claims merely because too many have valid claims.” But today, as in the 1980s, asylum law remains political. As a result, it is hard to generalize about how asylum claims by children like Giovani will fare; many will come down to the identity of the judge and whether the child finds a lawyer.
From Texas, immigration agents flew Giovani to a city where there was a group home for unaccompanied children. In February, he was finally reunited with his mother in California. The two hugged for the first time in years. Immigration and Customs Enforcement started the deportation process by giving him a date to show up in court, as the 2008 law requires.

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Giovani speaks of his decision to flee: “I thought about helping the gang, and how it would end this problem. But I also thought of my parents.” Giovani grew up with asthma, and he remembered his mother staying up late with him when he had an attack; he thought of how she sent money every month, and the pain she would feel if instead of working hard to get ahead, he became a violent criminal. Maria struggles to hold back tears when she hears this. She imagines the terror he must have felt, but is happy he stood up to them. “His life was at risk,” she says. “And I’m proud that he was brave. They could have shot him.”
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Recent commentary on the border crisis has tended to caricature the reasons people migrate—It’s the violence. It’s jobs. It’s the permisos. In reality, people’s reasons are complex and multiple. Maria, for instance, was seeking economic opportunity, but she was also fleeing her partner’s abuse, and the looming threat of retribution by the gang if she couldn’t keep up with her “rent” payments. In Giovani’s case, he needed protection that his government and his father could not provide, but he also missed his mom; they hadn’t seen each other in almost half a decade.
What will happen to the children who are here in the United States? Their claims for asylum and other forms of humanitarian relief will be heard by immigration judges. Some will win legal protection and some won’t. The few recent attempts to glean the overall picture suggest that about half have at least plausible claims.
In the near term, the Obama administration has focused on slowing the immediate flow; the journey through Mexico is, after all, extremely dangerous. (Customs and Border Patrol commissioned a pop song, “La Bestia,” to warn of its perils.) The administration has prodded Northern Triangle governments to stop migrants before they leave, and is floating the idea of an in-country refugee screening process.
To deter more children from setting out, the White House has announced plans to “speed deportations of unaccompanied minors.” Already, in immigration courts across the country, new “rocket dockets” are being instituted to rush children and families through the system at breakneck speed and with serious concerns about due process. But the two proposals for accomplishing deterrence are very different: one involves getting children before a judge faster; the other would cut the judge out of the picture altogether.
The first idea—hiring more judges—is actually long overdue. In the last two decades, spending on enforcement has come to dwarf the funding for adjudication. The federal government spent $18 billion on immigration enforcement in 2012—more than all other law enforcement combined—but only $310 million on immigration courts (or 1.7 percent). As a result, backlogs stretch to one and a half years, and over 300,000 cases are currently in the pipeline. This is a crisis that predates the current situation at the border. We have devoted enormous resources to catching people, but very few to hearing their cases. The couple dozen new judges the administration has requested would make a small dent in the deeper problem, and t the border, it would put children’s hearings on a faster timeline.
The second proposal, in contrast, would eliminate most hearings entirely. Currently, unaccompanied children (except those from Mexico and Canada) must be placed in removal proceedings. Adults, on the other hand, are subject to “expedited removal.” Introduced by the 1996 reforms, expedited removal allows Border Patrol agents to summarily deport people who are not identified as fearing persecution; those that are must be allowed to stay and enter the asylum system and have their claims heard. But over the last decade, problems with the screening process have become widely documented. The US Commission on International Religious Freedom reported, in 2005, that Border Patrol agents sometimes “improperly encouraged asylum seekers to withdraw their applications” and that some asylum seekers “requested the opportunity to apply for asylum but were refused.” Academic studies and immigration lawyers have reported that, because of expedited processing, thousands of genuine refugees are sent home.
The effect of stripping away the few protections offered by the 2008 law would be to place the fate of thousands of children in the hands of the Border Patrol. Central American children would no longer see a judge at all, unless they could convince border guards that they were in danger. This process already exists for Mexican children, and most are summarily sent back, even when they may have been trafficked or persecuted back home.
And the debate over how to respond has continued to take place along partisan lines. On August 1, the House of Representatives passed a bill that would accomplish the second proposal, stripping Central American children of the protections that children from places other than Mexico and Canada receive. This bill is unlikely to be passed by the Senate or signed into law by the President.

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For now, Giovani and his mother live in the rented basement of a suburban San Francisco home. Maria continues to work the late-night shift at a restaurant. Giovani, dressed in blue jeans, a California Bear Republic T-shirt and a Chicago Bulls hat, might comfortably pass for an American teenager, and probably would not fit most people’s idea of a foreign invader. The transition has been easier than he expected; the other kids at school have been nice about helping him with his English. But he describes the anxiety of knowing, like Maria and millions of other immigrants, that all could be taken away at any moment. He wants to go to college after he finishes high school, but first he has to earn the right to stay in the United States. As he makes his way through the clogged hallways of the immigration system, he will have to prove that he is a refugee worthy of safety and a better life.
Back home, Giovani and thousands like him faced stark choices. “You join the gang, you get killed, or you ride the Beast,” as Brodyaga put it. Now they face an uncertain future in the United States. “When I think of all the children in my situation who they say are going to be deported, I feel awful,” Giovani said. “There is nothing back home. If I am deported, I will try to come back.”