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The US asylum system returning Central Americans to danger

Rupert KnoxFriday 1 May 2020

The Trump administration is notable in many ways, not least for its anti-migrant and asylum seeker policies.

The Covid-19 crisis has also highlighted this: it is affecting the whole of the United States, yet President Trump has often chosen to focus on the ‘foreign’ threat of the virus.

Trump claimed the recent closure of the southern border was necessary to stop the spread of the virus, but infection rates are much higher in the US than in its southern neighbours. More concretely, this measure makes it all but impossible for those fleeing violence and persecution to find safety in the US and avoid being returned to harm.

The US administration has refused to release asylum seekers from custody despite fears of Covid-19 spreading through detention facilities. Instead, it has preferred to introduce summary deportations of all detained migrants, which in turn has risked the spread of Covid-19 to ill-prepared Central American countries.

US government policies stand in clear contrast to [its] human rights obligations

Barbara Wegelin
Refugee Officer, IBA Immigration and Nationality Law Committee

Victoria Neilson, a long-standing migration law practitioner in the US and Managing Attorney at the Catholic Legal Immigration Network, says a raft of policy measures introduced by the Trump administration have been intended ‘to gut the asylum process’ and amount to a ‘targeted attack on the foundations of the asylum system’.

Neilson argues that the ‘administration has determined that it doesn’t want the United States to offer asylum to anyone from anywhere, but the restrictions put in place, procedurally and substantively, are particularly aimed at people from the Northern Triangle’. That is El Salvador, Guatemala and Honduras. All three suffer some of the highest murder rates in the world. Many of the poorest sections of society are the target of multiple forms of violence and human rights violations. This includes rampant criminal gang and gender violence, death squads and security force violations. All are committed with virtual impunity. As a result, thousands of Central Americans have made the dangerous journey to the US to escape the violence and claim asylum.

US administration policies have sought to prevent, delay and deny these claims. They include, firstly, more restrictive interpretations of the United Nations 1951 Refugee Convention ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. There are also greater obstacles to obtaining judicial ‘withholding of removal’ orders which are based on compliance with the principle of non-refoulement included in such instruments as the UN Convention against Torture.

Secondly, Migrant Protection Protocols (MPPs) have forced claimants to wait many months in Mexico. This means surviving in precarious and unsafe camps in some of the most dangerous cities in the world. MPPs have been increasingly replaced by Safe Third Country agreements with Central American governments. These enable asylum seekers to be immediately sent to unsafe and ill-prepared third Central American countries to make their claims. Despite continuing fears for their safety, claimants usually drift back to their country of origin or try to reach the US again.

Thirdly, the ‘expedited removal process’ has been accelerated. This is supposed to weed out economic migrants with a credible fear screening interview by an asylum official. However, new measures give Border Patrol agents an increasing role in the process and effectively prevent claimants from accessing legal defence.

It is true that asylum claims by Central Americans have risen in recent years. However, the proportion of successful claims has rapidly dropped. A key factor in these outcomes is that 99 per cent of hearings take place without claimants being able to access legal representation. The real goal of many of these changes is, as Neilson says, ‘to make it impossible for people to get lawyers and to speed up the deportation process while making it look like [the authorities] are complying with the letter of the law’.

However as Barbara Wegelin, Refugee Officer of the IBA Immigration and Nationality Law Committee and senior associate at Dutch immigration firm Everaert Advocaten stresses, ‘Access to legal representation is essential in asylum cases. Both from a material and a procedural standpoint an asylum applicant lacks the knowledge and the means to submit and support their protection claim properly’.

Lily Axelrod, Immigration and Nationality Law Committee member and attorney at US immigration firm Siskind Susser, believes that ‘The Trump administration is essentially abdicating our non-refoulement obligations, creating a deliberately punitive system’.

She cites as examples the ‘detention of asylum-seekers in inhumane conditions with no possibility of parole or bond, separating them from their children, issuing absurdly restrictive interpretations of asylum law straight from the Attorney General which contradict the letter and spirit of the Refugee Convention, authorising US Border Patrol agents to screen asylum cases rather than experienced and trained asylum officers, pushing a quota system on immigration judges which rewards speed and volume over due process… the list is obscene.’

In addition, the US authorities routinely disregard the risk of harm that deportees face. This is partly because neither the US authorities nor countries receiving deportees take measures to ensure or track their safety. Deportees usually disappear into a convenient informational black hole. The extreme insecurity in these countries means it is also very dangerous for local human rights organisations to document and publicly report on their plight.

However, in February 2020, Human Rights Watch (HRW) published Deported to Danger. The report documents at least 138 Salvadorans who returned to El Salvador from the US in the last five years have been killed. It also documents cases of deportees suffering disappearance, sexual violence, torture and extortion as well as widespread stigmatisation and fear. Alison Parker, Managing Director of the US Program at HRW, noted, ‘Salvadorans are facing murder, rape, and other violence after deportation in shockingly high numbers, while the US government narrows Salvadorans’ access to asylum and turns a blind eye to the deadly results of its callous policies.’

The report illustrates the danger that deported Salvadorans face with cases such as ‘Adriana J’. She was a former Salvadoran police officer who fled to the US after being threatened by gangs. She was denied asylum in the US and deported back to El Salvador where gang members shot her in 2017. Another woman, ‘Angelina N’ fled to the US to escape abuse at the hands of a gang member but was deported in 2014. She was raped repeatedly by the same gang member after her return to El Salvador.

The refusal to recognise the dangers faced by many returnees is not limited to the US - Canada, Mexico and European nations continue to deport Salvadorans. The Government of El Salvador has also largely ignored the fate of deportees, often stigmatising them as presumed criminals. Elizabeth Kennedy, the former researcher on El Salvador for HRW and co-author of the report, notes that the Salvadoran Foreign Minister’s public response to the report ‘exemplified that they intend to continue viewing deportees as criminals and frankly people undeserving of protection’.

Kennedy also says that US authorities, at least publicly, did not respond to the report’s findings. The US Immigration and Homeland Security authorities also failed to respond to requests for information for this article.

Kennedy is now independently researching the situation in Honduras. Gang violence, high-crime neighbourhoods, security force abuses and institutional weakness create a similar cocktail of impunity and lack of protection. The same factors drive many Hondurans to try to reach the US and claim asylum. Just as in El Salvador, most are deported, and face the same stigma and threat to life on return, often feeling compelled to try to reach the US again.

The increasing obstacles to Central Americans claiming asylum in the US started before Trump and the Covid-19 crisis, but as Kennedy says, this ‘administration has gone step by step taking apart what little hope and guarantees existed’. The crisis is also providing an excuse to further weaken State compliance with the protections established in international refugee law. As Wegelin notes, ‘US government policies stand in clear contrast to human rights obligations that the US has committed to’.