|Spotlight on increased migration from Central America|
(Washington, D.C.) July 9, 2014 — The relatively sudden increase in the number of people migrating from Central America—particularly from El Salvador, Honduras and Guatemala—to the United States is the Hemisphere’s most recent migration phenomenon. Although this movement constitutes a mixed flow, JRS/USA is particularly concerned about three sub-groups: unaccompanied children1 traveling without a parent or legal guardian, asylum-seekers, and women traveling with very young children.
Reasons for increased migration
Migration from the Northern Triangle of Central America — El Salvador, Guatemala and Honduras — has risen steadily as violence has increased. Youth gang violence has intensified in the last decade, and as drug trafficking routes have shifted to Central America, violence associated with the drug trade has risen as well. Honduras has the highest homicide rate in world; since 2005, murders of women and girls have increased 346% while murders of men and boys are up 292%. In both Guatemala and Honduras, rates of impunity are over 90%.
Child advocates, especially from Honduras and El Salvador, report accounts of children and teenagers subject to assaults and intimidation from gangs, and of children being forcibly recruited by gangs who have "join or die" polices. In a survey conducted by UNHCR of 404 Central American children detained at the border in 2013, UNHCR found that 58% of the children might be in need of international protection.
Children and youth in Central America are vulnerable to violence from vigilante groups, sometimes including off-duty police officers, who enter neighborhoods known for gang activity and carry out extrajudicial executions of those they suspect of gang activity. Although the situation is slightly different in each country, corruption within the government, law enforcement complicity in criminal activity, and penetration of the political sector by organized crime erode citizen security and destroy citizens' trust in their own government.
In addition to reasons linked to violence and corruption, many children, young people and families are also migrating as a result of poverty and lack of opportunity. In the UNHCR study mentioned above, more than 80% of children cited poverty or deprivation as a factor that contributed to their decision to leave. According to a 2012 World Bank study, younger workers confront serious barriers to legal employment. The study found that 30% of urban youth in Central America are neither working nor in school. Lack of opportunity also compounds the problems of crime and violence, as many young people in poor neighborhoods see few alternatives to gang membership.
Unaccompanied children from non-contiguous countries do have some protections in the U.S. However, to understand the current situation and why those protections are being threatened, one must remember that the system for unaccompanied children was designed to handle about 8,000 children per year, the annual average until recently. This year, however, the U.S. government has already taken into custody more than 52,000 unaccompanied children, and estimates that the final number for the year may exceed 90,000.
As soon as a child is taken into custody, deportation proceedings are immediately initiated. Simultaneously, at least for now, if a family member or other responsible sponsor can be located, the child can be released to their custody while he/she awaits the assigned court date, often more than two years away. If a sponsor cannot be located, children remain in government custody or are placed in foster care.
While the U.S. has increased immigration enforcement resources enormously over the last decade, the legal system that processes cases has been underfunded, resulting in a serious backlog of 366,000 cases and an average wait time of more than 570 days.
Opponents of immigration reform in the U.S. have argued that releasing these children while they await their court date rewards irregular migration by reuniting families, albeit temporarily. They also predict that large numbers of these children will not show up for their court date and accuse the government of not exercising appropriate supervision over them.
In response to this critique, the Administration has asked Congress to make a legislative change to allow for the expedited deportation of unaccompanied children (something that is currently prohibited by protections in an anti-trafficking law). The Administration is also exploring detaining, rather than releasing, these children. We do not support either of these changes.
Conversely, the Administration has recognized that no child should face an immigration judge alone, and has therefore taken steps to increase children's access to legal advice. Currently, unaccompanied children navigating deportation proceedings are not provided with legal representation by the government.
While it is technically possible for them to pursue some form of immigration relief in order to not be deported back to their country or origin (asylum, special juvenile immigration visa, etc.), most children will need legal assistance to effectively do so. To this end, NGOs have undertaken a herculean effort to provide pro bono legal support to as many children as possible, and the Administration recently announced a new program to provide stipends for legal screenings and support for unaccompanied children.
The numbers of asylum-seekers from Central America has also increased over the last few years, as many of the root causes expelling children from these countries affect adults as well. The number of people entering the first stage of the asylum process has increased by more than 250% from 2012 to more than 36,000 claims in 2013. Unfortunately, some have interpreted the increase in the number of asylum claims as proof of abuse. However, the U.S. is not the only country seeing such an increase. In fact, from 2008-2013, Mexico, Panama, Nicaragua, Costa Rica and Belize jointly documented a 712% increase in the number of asylum applications from El Salvador, Honduras and Guatemala.
In fact, far from being overly generous, the asylum system is not favorable to most Central American claims. The asylum system in the U.S. recognizes only the 1951 Refugee Convention, and not expanded definitions like that of the Cartagena Declaration. Asylum-seekers from Central America who have been persecuted by organized crime or gangs do not easily fit into a system designed to respond to persecution by state actors.
The two largest hurdles involve the identity of the victim and of the persecutor. Currently, the U.S. asylum system excludes cases in which the persecutor’s primary motivation is determined to be economic, which is how most judges have interpreted persecution by gangs and organized crime. Unfortunately, this fails to acknowledge that some of the most effective non-state persecutors in Central America increasingly penetrate the political arena and often wield more power than state entities. Secondly, U.S. asylum law only recognizes persecution as the result of race, religion, nationality, political opinion or membership in a particular social group. U.S. law has defined "particular social group" in increasingly narrow ways, requiring that a social group be "socially visible," for example. This has also increased the likelihood that Central American cases will fail.
Other concerns include the continued detention of asylum-seekers and a technical, but important, change in the way that the first step of the asylum process—the Credible Fear Interview—is conducted to make it more difficult to pass.
Families and Detention Conditions
In addition to increased numbers of asylum seekers and unaccompanied children, the U.S. has also been receiving a large number of families, especially women with young children. Virtually all Central American migrants are either apprehended by or turn themselves in to Customs and Border Protection (CBP), within the Department of Homeland Security. CBP operates very rudimentary holding facilities that were never supposed to individuals for more than 72 hours.
In practice however, migrants — including children — are languishing in CBP custody for up to two weeks before they are processed and transferred. This is concerning because there are no standards that govern conditions in CBP facilities.
In fact, in light of documented cases of migrants being denied adequate food, water and medical care and experiencing verbal, physical and sexual abuse, it is clear that enforceable standards are needed, and that external observers must have access to the facilities in order to monitor compliance.
After repeated requests, Fr. Sean Carroll of the Kino Border Initiative was finally given a tour of a Nogales CBP facility where as many as 1200 children are being held; however, Fr. Carroll was denied permission to speak with the children and could not ascertain their psychological well-being. Fr. Carroll has subsequently attempted several times to again visit the center, but his requests continue to be denied.
While children are transferred from CBP facilities to the Department of Health and Human Services for release, the U.S. government has been releasing families, especially those with young children, until their court date.
Since closing the T. Don Hutto Detention Center in Texas in 2009 amidst accusations of inhumane conditions and mistreatment, the U.S. has not detained families in jail-like settings. Until recently, the only remaining family detention center in the U.S. was a small shelter-like facility in Pennsylvania. However, responding to the criticisms detailed above, the Administration has recently reinstituted a discredited policy of detaining families and opened a family detention center at a law enforcement training center in Artesia, New Mexico.
JRS/USA and Church World Service have been asked to provide chaplains to ensure that the as many as 700 people detained in the Artesia Family Detention Center have access to religious services.
Unfortunately, many of the detainees’ other needs are not being met as no one is currently providing either Know Your Rights presentations or conducting Legal Orientation Programs (LOP) inside the facility. In addition to respecting basic rights, providing correct information through strong LOP can help prevent the development of any inaccurate rumors about current policy and practice (something that many parts of the U.S. government are concerned is catalyzing additional migration from Central America).
Beyond its obligation to treat all migrants humanely, the U.S. has a further obligation to provide protection for unaccompanied children, asylum-seekers and families who are fleeing violence in their countries of origin. Despite strong signals that it intends to do so, the U.S. must not roll back existing protections simply because more people may need them than anticipated.
We must be very clear with all U.S. government officials that this is a mixed migration which includes people in need of international protection. Therefore, the U.S. must protect migrants’ due process rights and ensure that all migrants receive Know Your Rights and Legal Orientation Programs.
Children, especially, should have legal representation or at least an individualized legal screening, and the criteria used in the asylum system must be adapted to respond to evolving forms of persecution in the Hemisphere. Children, asylum-seekers, and families should only be detained in rare circumstances, and detention conditions must be humane and monitored by external observers.
The U.S. government must hold on to humanitarian principles of protection and compassion because the implications of its decisions are global. The U.S. cannot continue asking countries like Jordan, Turkey and Lebanon to keep their borders open in the face of large numbers of people seeking protection from violence in Syria if it is unwilling to compassionately review the asylum and protection claims of desperate people who arrive at its own border.
Smart responses to increased migration from Central America
Jesuit Refugee Service/USA and the U.S. Jesuit Conference recommend the U.S. government take these steps:
Reducing impunity and violence; strengthening the rule of law
• Provide resources and technical assistance for shelters for girls and women victims of violence and strengthen and expand States’ and localities’ capacity to respond to and sanction violence against women and girls. Honduras, Guatemala and El Salvador struggle with endemic levels of intra-familial violence and have grappled with a sharp and disproportionate increase in the murder rate of women and girls. Additional programming is needed to improve investigation and prosecution of femicide and sexual violence. In Honduras, only one shelter is currently functioning; the two other shelters in the country have compromised security mechanisms. For women and girls fleeing forced sexual encounters with gangs, a swiftly expanding phenomenon in Honduras, none of the shelters in-country are sufficiently secure to offer protection. In Guatemala, approximately 61% of victims of sex crimes reported between 2007 and 2011 were 17 or younger. Gender discrimination, lack of resources, and lack of training – for law enforcement, hospitals, and courts – result in neglect of cases, improper collection of evidence, lack of investigation, and extremely high rates of impunity for perpetrators.
• Provide support and assistance to crime victim and witness protection systems. Mechanisms for offering protection, safety, and shelter for crime victims, including providing for the personal security of witnesses to crimes committed by organized criminal enterprises and police, must be enhanced throughout the region. Investing in such mechanisms will allow witnesses and crime victims to participate in justice processes while staying in their countries of origin.
• Invest in community-based comprehensive youth violence prevention strategies. Programs like the Paso y Paso social education program in San Pedro Sula, Honduras and the Puente Belice Program in Guatemala are being pioneered in cities struggling with some of the highest levels of violence in the world. In Los Angeles, Calif., and Santa Tecla, El Salvador, such programs have yielded verifiable reductions in youth violence and victimization. Evaluations show declines in homicides and gang crimes in Los Angeles over four years, and Santa Tecla, which started its program in 2003, has a 40% lower homicide rate than other surrounding communities.
• Continue to strictly condition assistance to police and military in Honduras, Guatemala and Mexico on compliance with basic human rights standards and use these human rights conditions to leverage gains in combatting corruption and impunity, while enhancing accountability and transparency at the national and local levels. Provide support to strengthen internal and external controls and oversight of security forces.
• Do not support "mano dura" policies that place youth at risk without effectively reducing violence. Do not provide assistance to police institutions in the absence of demonstrated political will for reform. Decline assistance for the use of military in civilian policing activities; encourage governments to withdraw the military from policing. Given high levels of corruption and abuse within police and military forces in the region, and acts of sexual violence committed by members of the security forces, the United States must ensure that funding for law enforcement and military does not in any way exacerbate human rights concerns. Instead, focus on strengthening judicial independence, the capacity of prosecutors to independently investigate police and military abuses, and the ability of civil society to hold government actors accountable for corruption and abuse.
• Ensure that future assistance to the National Institute of Migration (INM) in Mexico prioritizes support for institutional reforms, including formalization of recruitment standards, thorough training of new recruits, and the development and implementation of a robust mechanism for supervision and internal and external control mechanisms to combat corruption and strengthen accountability within the institution.
• Provide resources for successful reinsertion and reentry of ex-offenders allowing children and youth opportunities to successfully leave the influence of organized crime and become productive and working members of their communities.
Supporting sustainable economic development
• Expand successful migrant reintegration programs to help stabilize communities and prevent unnecessary repeat migration.
• Invest substantially and over a sustained period in job training and job creation programs targeted at urban youth, particularly from areas of high violence, including access to credit and technical assistance. This can increase employment and income, reduce the pull of violent gangs, and reduce incentives for migration.
• Invest substantially and over a sustained period in small-scale agriculture, including marketing and technical assistance, to improve the ability of rural communities to provide livelihoods for their citizens.
• Evaluate all U.S.-funded development projects for migration impact to ensure that U.S. programming does not unintentionally undermine social cohesion, family structure or existing livelihoods, thus catalyzing migration.
Strengthening the regional protection system for children and migrants
• Support well-trained, well-resourced and accountable child protection systems in El Salvador, Guatemala, Honduras and Mexico. Several months ago, the Honduran child welfare agency (IHNFA) was dissolved amidst allegations of waste, fraud, and abuse. While new leadership was recently appointed the new agency (DINAF) is not yet operational, and it is still unclear what its authority, mandate or capacity will be. In all four countries, it is critical to have accountable and adequately staffed and resourced child protection systems to protect children at risk of violence and abuse. The Mexican agency responsible for family welfare (DIF by its initials in Spanish) must accept that unaccompanied children from Central America also fall within its mandate, and accept custody of them.
• Increase financial support for the UN High Commissioner for Refugees (UNHCR) in the region as it seeks to assess the magnitude of internal displacement and assist countries of origin in the prevention, protection and assistance of internally displaced persons. Resource UNHCR's participation in the Intergovernmental Displacement Commission in Honduras, which has been meeting since late 2013 to study internal displacement in Honduras, and is now working to operationalize a basic action plan. Support the expansion of UNHCR's presence in Mexico.
• Support UNHCR in establishing refugee resettlement and anti-trafficking processing in Central American and Mexico for people fleeing persecution in their home countries, including a strong capacity to conduct "best interest determinations" for unaccompanied refugee minors. This, as well as other options detailed in the NGO Ten Point Plan2, would facilitate the orderly arrival of people who qualify for refugee status or for protection from human trafficking.
• Work with other international donors to open an office of the United Nations High Commissioner for Human Rights in Honduras, as requested by the Honduran government. This will support Honduras in better protecting the rights of people at risk of migrating, decreasing endemic corruption, and addressing widespread impunity.
• Strengthen the asylum, humanitarian visa and anti-trafficking systems in Mexico. Within Mexico, this will involve expanding the number of offices and personnel of the Mexican Commission for Aid to Refugees (COMAR) within Mexico’s Ministry of the Interior and providing greater clarity about what constitutes a legitimate claim to prevent arbitrary denial of humanitarian visas to migrant crime victims. It will also require additional oversight to ensure that the National Institute of Migration (INM) promptly refers asylum cases to COMAR, that asylum-seekers are not detained unnecessarily, that screenings take place in appropriate settings, and that INM agents do not dissuade asylum-seekers from pursuing their claims by threatening them with extended detention. Encourage additional trafficking and asylum screening training for Federal Police and INM officials in Mexico.
Responding to a humanitarian situation in the U.S.
• Develop and enforce humane standards for all short-term CBP holding facilities. In light of documented cases of migrants, including children, being denied adequate food, water and medical care and experiencing verbal, physical and sexual abuse while in CBP holding facilities, it is clear that enforceable standards are needed, and that external observers must have access to the facilities in order to monitor compliance.
• Improve oversight of the asylum and trafficking screening processes. Ensure that all apprehended individuals are asked if they fear return to their country of origin, and are referred for a credible fear interview if they respond in the affirmative.
• Evaluate and update understandings of “particular social group” and agent of persecution in light of modern day realities facing targeted individuals fleeing fragile states where organized criminal groups exercise social, political and economic control. Some of the most effective persecutors in Central America increasingly penetrate the political arena and often wield more power than state entities. Outmoded legal interpretations requiring a group to be socially visible and excluding as persecutors those with economic motivations fail to account for the very real international protection needs of those fleeing targeted violence and risks sending refugees back to certain death.
• Use alternatives to detention for all children and families when full release is not possible. Do not return to large scale family detention in prison-like facilities as these facilities have been shown to be damaging to child development and the maintenance of family structure.
• Provide legal representation to all children and in-person Legal Orientation Programs (LOP) to all apprehended migrants. At a minimum, all children should receive an individual, child-friendly and trauma-informed screening by a qualified legal advocate. Giving people correct information through strong LOP can help prevent the development of any inaccurate rumors about current policy and practice. Ensure interpretation is provided as needed in all court proceedings and LOP.
• Increase funding for the Executive Office of Immigration Review (EOIR) to reduce significant backlogs in immigration court. For years, funding for EOIR has failed to keep pace with increases in immigration enforcement, creating a backlog of 366,000 cases and an average wait time of more than 570 days. In the absence of legal representation, many potential asylum-seekers do not understand that a deportation process has been initiated against them. Unless additional resources are made available to address the backlog, many of them will have missed the one year filing deadline to apply for asylum by the time their court date arrives.
• However, in addressing the backlog, the U.S. must still conduct individualized determinations for those seeking humanitarian relief. These cases must be adjudicated before an immigration judge and determinations should not be made over phone or via video conference. Furthermore, in light of elevated risks of trafficking, existing protocols—especially those in the Trafficking Victims Protection Reauthorization Act—for children from Honduras, Guatemala and El Salvador should be maintained.
1. Note that the U.S. government refers to children migrating without a parent or guardian as "unaccompanied alien children" or UACs, and that this acronym has become a common shorthand for referring to these children. However, as JRS does not refer to human beings as aliens, we do not use either this term or this abbreviation.