Asylum Seekers from Central America: Gaming the System or Legitimate Claimants?

Recent debates over refugees coming to the United States have mostly focused on those coming from the Middle East and parts of Africa. During the presidential campaign last year the candidates debated the wisdom of admitting refugees from Syria, and President Donald Trump’s executive orders earlier this year implementing a “travel ban” focused on primarily Muslim countries in the Middle East and Africa, although it temporarily suspended the entire refugee admissions program worldwide.

At the same time, however, in the past few years thousands of individuals have fled from Central America—in particular the nations of El Salvador, Guatemala, and Honduras—to the United States. These Central Americans are fleeing the widespread gang violence and breakdown in social order in those countries. In some cases, these individuals have been threatened with death by gang members, either for attempting to leave a gang, refusing recruitment into the gang, or for resisting efforts at extortion by the gang. Beginning in 2014, an unprecedented number of unaccompanied minors from Central America, as well as mothers with minor children, began crossing the U.S.-Mexico border after making the perilous journey across Mexico.

At the time, the Obama administration took a harsh stand, detaining and deporting many of these migrants in an effort to discourage them from coming to the United States. The administration was criticized by immigration advocates for these measures because they failed to address the underlying causes leading people to leave their homes. On the other hand, the administration allocated $750 million in foreign aid to Central America to help address the issue of violence, and in 2014 it established a program that allowed Central American minors to apply for refugee status outside the normal channels for doing so. This latter program was expanded in 2016, but then suspended by the Trump administration in January of this year and canceled altogether in August.

This refugee program was too small to adequately address the problem, however, and this has resulted in increasing numbers of migrants crossing the border and then claiming asylum seeker status once detained. The individual must claim that they have a credible fear of persecution in their home country, then they are released and expected to prove their case in immigration hearings at a later date; if they do so successfully, they are granted refugee status.

On Thursday Attorney General Jeff Sessions gave a speech to the Justice Department division that oversees immigration courts in which he criticized this process and the immigration attorneys who encourage their clients to pursue it, claiming, “The system is being gamed. There’s no doubt about it. The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.” Sessions went so far as to assert that “We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum, providing them with the magic words needed to trigger the credible-fear process.”

Sessions claims that the United States’ asylum procedures “were never intended to provide asylum to all those who fear generalized violence, crime, personal vendettas, or a lack of job prospects.” Rather, they were intended to protect people who have experienced persecution on the basis of race, religion, nationality, political opinion or membership in a particular social group. Here Sessions is citing the 1951 Convention Relating to the Status of Refugees which affirms the obligation of nations to welcome refugees and defines refugees in the terms outlined above.

Although Sessions is right that the refugee and asylum system should not be abused, he interprets the law in an unnecessarily restrictive way. In his speech he bemoans how the immigrant courts have been overwhelmed with new cases, but he does not address the underlying social factors in El Salvador, Guatemala, and Honduras leading to the increased number of migrants seeking to enter the United States. By neglecting this social context, he ignores how the situations faced by many of these migrants might indeed fall within the scope of the 1951 convention.

In a 2010 document offering guidance on how to interpret the 1951 convention in light of the organized crime problem in Central America, the office of the United Nations High Commissioner for Refugees (UNHCR) states that the convention was meant to be flexible enough to be applied in a variety of social contexts. The document notes that the risks individuals face from gangs certainly rise to the level of persecution as defined by the convention. The real question is whether these individuals are persecuted based on the grounds listed in the convention: race, religion, nationality, political opinion or membership in a particular social group. The document goes on to list several ways in which this may be the case, the most important listed below.

• Gangs may focus their activities on indigenous communities because of their marginalized status;
• Gangs deliberately focus their activities on youth, the poor, and particular neighborhoods, all of which could classify as “particular social groups”;
• Individuals may be targeted because of their refusal to join a gang, or their decision to leave a gang, which would classify them as members of a particular social group;
• The law specifies that “a characteristic that is fundamental to one’s conscience and the exercise of one’s human rights” can constitute membership in a particular social group, and so refusal to participate in gang activity, the decision to leave a gang, or the refusal to participate in criminal extortion could constitute such an exercise of conscience through one’s commitment to the rule of law;
• If gang violence is especially focused on women, this could constitute persecution of a particular social group;
• In contexts in which gangs are linked to state authorities, or in which the state is unable to exercise authority and a gang exercises de facto social control, refusal to join a gang or participate in criminal activity could constitute a “political opinion.”

The convention also requires an applicant to show that they are unable to relocate within their home country. The UNHCR explains that in situations where the state is linked to organized crime or where criminal gangs have national networks, this condition would likely be met. Therefore many, although certainly not all, of the migrants coming to the United States from Central America in pursuit of asylum have legitimate claims to refugee status that they ought to be able to pursue in court, without fear of detention or deportation.

Catholic teaching does not delve into the issue of the exact grounds qualifying an individual as a refugee, but it does agree with international law that nations must welcome refugees and provide avenues for them to pursue their legal claims. As the Catholic bishops of the United States and Mexico state in their 2005 document Strangers No Longer:

Those who flee wars and persecution should be protected by the global community. This requires, at a minimum, that migrants have a right to claim refugee status without incarceration and to have their claims fully considered by a competent authority.

Although we should certainly seek to avoid the abuse of the law and distinguish refugees and asylum seekers from other types of migrants, we also should interpret the relevant law in a way that is sensitive to social context and the changing conditions causing people to desire to leave their homes. As the American and Mexican bishops also state, the United States has a responsibility to devote resources to ensuring that our immigrant court system is capable of handling the number of individuals making asylum claims. Therefore, by simply bemoaning the backlog of immigration hearings while ignoring the underlying causes for the spike in asylum cases, Attorney General Sessions is taking us in exactly the wrong direction.

Matthew A. Shadle is Associate Professor of Theology and Religious Studies at Marymount University in Arlington, Virginia. He has published The Origins of War: A Catholic Perspective (Georgetown, 2011). His work focuses on the development of Catholic social teaching and its intersection with both fundamental moral theology and the social sciences, with special focus on war and peace, the economy, and immigration.