In the span of her 40-year law career, Barbara Hines tells Truthout, the US government granted asylum in only two of her clients’ cases. One was a female genital mutilation case and the other involved a Guatemalan Amnesty International prisoner of conscience. Hines, a clinical professor at the University of Texas at Austin School of Law, says this highlights how incredibly difficult it is for applicants to receive asylum in the United States.
Asylum status guarantees that the applicant can remain in the US because she has been a victim of persecution as a result of race, religion, nationality, membership in a particular social group or political opinion. Hines explains that part of the problem is that asylum cases are both highly litigated and contested. “Showing harm is not sufficient,” she said. “Terrible things can happen to you and you can still lose an asylum case because of the restrictive nature of asylum law.”
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In a well put together case, the client would need a mental health expert, country condition expert and documents confirming that she is being persecuted. The client also has to prove that “internal relocation” is not reasonable, which means showing that the persecutor would be able to locate her if she were moved to a different part of her country of residence. (Those standards, however, are different when the persecutor is the government or a non-state actor.)
The US government has deported an estimated 800,000 men, women and children annually in recent years. Tens of thousands of these migrants are attempting to escape violence and poverty in their home countries. Though many of those fleeing have experienced horrific brutality, they are not guaranteed a safe haven once they reach the border. Despite so many obstacles, migrants continue to travel to the US in search of refuge. In the summer of 2014, there was a surge of Central American migrants at the Mexico-US border, and in March, the number of unaccompanied minors increased.
Jane A. Juffer, professor of feminist, gender and sexuality studies at Cornell University, says that one major problem is that neither US Customs and Border Protection agents nor US Immigration and Customs Enforcement nor the asylum judges are taking these unaccompanied children seriously. As a result, many of them are not even allowed to make their asylum claims. “The United Nations High Commissioner for Refugees (UNHCR) interviewed 404 recently arrived children who had crossed the border on their own and concluded that than 58 percent of them ‘were forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection,'” Juffer told Truthout in an email.
According to Hines, Central American gang cases are much more difficult to prove because the courts have not been open to these types of claims in the past. You could have a gang based on political opinion or religion, for instance, so it is not just a problem of a particular social group. The applicant has to prove that their persecution is a result of their membership of this group. If she doesn’t clearly belong to a particular social group, she is required to establish that identity with evidence. Some immigrants, however, experience individualized persecution and are unable to prove any kind of social membership.
Rachel Lewis, assistant professor of women and gender studies at George Mason University, says demonstrating persecution can also be particularly complicated if the experience hasn’t been documented. Gender-based and domestic violence, for instance, may be difficult to prove with tangible evidence. Fortunately, however, victims of gender violence and women abused in domestic relationships have recently been recognized by the Board of Immigration Appeals as members of a particular social group, which Hines says has set a positive precedent.
Additionally, Lewis believes that the increased use of social media has had a large and positive impact on cases. Some asylum seekers are documenting their experiences on their phones to prove they belong to a particular social group. For instance, they are now able to record their participation in an LGBTQ event. Lewis says that establishing credibility is also critical for the applicant; many times officials are suspicious of asylum seekers’ identities. In other words, are they who they say they are? Social media can also play a pivotal role in proving their identity.
Asylum and refugee status depend on five types of persecution: serious physical harm, coercive medical or psychological treatment, invidious prosecution or disproportionate punishment for a criminal offense, severe discrimination and economic persecution, and severe criminal extortion or robbery. According to Immigration Equality, threats of violence are not enough to prove persecution “unless the threats themselves cause significant harm.”
Hines says detention is one of the biggest obstacles in asylum cases because it is much more challenging to obtain a lawyer, prepare for a case and communicate with witnesses. “It’s complicated and so difficult to present a case by yourself and many asylum seekers do not have counsel in detention,” she said.
Katharina Obser, program officer in the Migrant Rights and Justice Program, also points out that many who are apprehended at the border are placed in really remote facilities, some of which don’t have a basic legal orientation program. They may not even have the option to apply for asylum. “This is devastating to someone who has experienced violence and trauma,” she said. “Even those who passed the initial screening interview are sometimes refused asylum. This speaks to why it’s so important to have a lawyer to navigate this process. This is a complex area of the law. It’s critical for a lawyer to articulate reasons for fear under US immigration and asylum law. Locking up families is a policy that does not make sense.”
Lewis describes detention as “an awful, almost Kafkaesque situation,” a system she believes is a part of the broader prison industrial complex in the United States. In order to address the problem, she says coalitions need to be built around the issue. According to Lewis, the worst case she’s heard of concerned a 14-year-old boy with various disabilities – emotional and intellectual – who struggled to communicate. He was put in an all-male facility and was raped multiple times. “The system tries to get children to voluntarily deport themselves,” Lewis said. “It’s also difficult for children to articulate persecution. They often tell their stories in nonlinear ways.”
Asylum seekers must also file their request within one year of arriving to the United States, a requirement that was added in 1995. The problem is that many who are seeking asylum are not aware of this limit. “It’s a very arbitrary deadline for something that shouldn’t have a deadline,” Obser told Truthout.
Hines highlights another hurdle in immigration cases: recruiting pro-bono lawyers and nonprofits to accommodate such a large number of asylum seekers. She says studies show that those who have legal representation are much more likely to win their cases, but there are not nearly enough legal professionals to handle these applications.
Immigration courts are often underfunded and therefore unequipped with the proper resources to provide timely legal representation. “There is an extraordinary backlog,” Obser said. “Immigration judges have crushing caseloads. Some applicants wait for years for a hearing. When someone is fleeing violence, these delays do not help. We have a broken immigration system. I don’t think this is how we should be treating those who are fleeing the most horrible situations imaginable.”
Hines also points out that the outcome significantly depends on the judges. She says one asylum judge in the Transactional Records Access Clearinghouse had an over 95 percent denial rate. Lewis also adds that many immigration cases often drag on for several years. In 2009, Rody Alvarado Peña, a Guatemalan woman who fled brutal domestic abuse, was finally granted asylum after a 14-year legal battle. All experts interviewed stressed that access to timely legal counsel is critical.
Obser feels that the United States responded to the surge of Central American migrants at the border in an immoral, inhumane and poorly thought out manner. “They refuse to look at the root causes of migration. The reaction was to put mothers and children in expedited removal,” Obser said. “The UNHCR [United Nations High Commissioner for Refugees] has come out with statements, but no one enforces them.”
“There is a tension between the international human rights discourse and the nation-state’s implementation of those rights. It’s a global problem. I think … [the solution is] going to depend on analysis of specific regions,” Lewis said.
According to Juffer, the treatment of migrant children, “speaks to a willful ignorance of international agreements, such as the Convention on the Rights of the Child (CRC), that call on state governments to consider the best interests of all children. In fact, the US asylum court for children is unusual insofar as it does not employ a ‘best interests of the child’ standard as do other legal proceedings that involve children in the United States.”
Obser believes the government must eliminate the one-year deadline, end detention and broaden its views on particular social groups in order to improve the asylum system. “The US is calling on countries like Syria to demonstrate leadership. We should be showing that same leadership with the refugees that come to our borders. With the response we saw last summer with families apprehended at the border, the US was trying to send a message of deterrence. That’s something completely inconsistent with international laws. Seeking protection at the border is not illegal. This is an inappropriate response.”