Why A Single Question Decides The Fates Of Central American Migrants
When he thinks about his future, Alfredo Trejo takes a deep breath.
"Many of the people who have been rounded up and will be deported, they already know their future," he says. "They'll die of hunger or they'll be killed by bullets."
Trejo came to the United States in 2014, one of thousands of unaccompanied minors from Central America who flooded the U.S. border. He applied for asylum and, like many of the others, he says he fled persecution from gang members in El Salvador. He says they assaulted him and stole from him and threatened to kill him, so he had no choice but to flee.
Like the thousands of Central Americans who increasingly are seeking asylum in the United States, Trejo's future will be determined by how a judge interprets one sentence from a law passed in 1980.
It puts him smack in the middle of a debate fraught with politics and argued in a system that has struggled to find an answer to what seems like a simple question: When is a migrant a refugee?
That debate has also become more urgent because the Obama administration is fast-tracking these cases and then prioritizing the deportation of those who lose in court.
Sitting in the living room of his lawyer in Virginia, Trejo looks very young. He's tall and lanky, and when he talks about serious things, he lowers his voice and looks down at his hands. You can tell that he would rather be talking about soccer. Yet he's still facing a very adult situation: Odds are that his journey to the United States will end with a deportation order.
"My case has been a bit hard, but hopefully I'll be allowed to stay," Trejo says. "Because the truth is, I don't want to go back. I don't want to die at 18 years old."
He looks at his lawyer, who's sitting right next to him. He says he trusts her.
"We intend to win. We hope to win," Jill Mármol says. "But what if we don't? What do we do?"
Mark Metcalf served for a little more than two years as an immigration judge in Miami.
In his words, there "is no such thing as easy cases" in immigration court. Metcalf says that many of them — especially asylum cases — are tough to decide because they're heartbreaking and pit human emotion against the hard letter of the law.
"It's a question of what the law says versus what our compassion indicates," Metcalf says.
In a case like Trejo's, that's even more true because, ultimately, a judge may be making a life-or-death decision. But, Metcalf says, if he were to follow the law, he would deny most asylum petitions from Central Americans fleeing gang violence.
The U.S. law Metcalf is talking about is the 1980 Refugee Act. The key sentence from that act grants asylum to any person who can't or won't return to their country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."
For decades now, many of the Central American and Mexican asylum cases have been argued using the "particular social group" provision. Attorneys argue that gangs targeted their clients because they are young or because they won't join a gang or because they are women.
But, as Metcalf interprets it, these migrants are fleeing crime, which is affecting "all people in a particular country," and are not being targeted because of a characteristic that they can't change about themselves.
If fleeing crime becomes grounds for asylum, he says, every "barrio" in Latin America would empty out into the United States. "We'll have a very difficult time being able to say no to any person who claims to flee a country because of criminal conditions," Metcalf says.
Since about 2009, many more Central American migrants — including many minors — are making the trip north and seeking asylum.
The reasons for the increase are fairly easy to explain. They parallel the ebb and flow of violent crime in the region. As the homicide rate spiked in Mexico, so did asylum applications; as San Pedro Sula became the murder capital of the world, asylum applications from Honduras increased. The U.N.'s refugee agency has interviewed hundreds of women and children who have crossed the U.S. border over the past couple of years, and a vast majority of them said they were fleeing violence from organized crime.
The big question is: Just how many Central American asylum seekers are being classified as refugees and allowed to stay in the U.S.?
In 2010, Syracuse University's Transactional Records Access Clearinghouse, or TRAC, found that 9 in 10 Hondurans and Salvadorans were being denied asylum, and 8 in 10 Mexicans and Guatemalans were denied.
TRAC also keeps tabs on cases fast-tracked by the Obama administration involving thousands of women and children. And those numbers show that not much has changed: 9 in 10 Hondurans and Salvadorans have been denied asylum, and 8 in 10 Mexicans and Guatemalans have been denied.
The Justice Department, which oversees the immigration courts, hasn't publicly released comprehensive numbers on these cases. But a spokesperson said DOJ analyzed a subset and found that judges denied asylum in about 60 percent of cases involving women and children from July 2014 through December 2015.
In other words, Central American asylum seekers have little hope of winning in court.
For weeks in 2014, Trejo had resisted the urge to stop showing up to soccer practice in San Salvador. As he tells his story, he took a daily 45-minute bus ride from an area controlled by the 18th Street gang to an area controlled by MS-13. He said MS-13 thought he was part of the 18th Street gang, and that's when they robbed him and mugged him and threatened to kill him.
But he dreamed of a spot on the Salvadoran national team, so he ignored the threats and kept showing up to practice. Then one summer day in 2014, a group of gang members waited for him to leave a team meeting.
When they pulled out knives, Trejo thought his life was over.
One of his neighbors saw them and pulled out a gun to scare off the gang members. Trejo escaped, but he'd had enough. Four days later, by car and foot across Guatemala and Mexico, the 17-year-old began a long journey north.
"We're practically forced out of the country when they find out that you're trying to make something of yourself," Trejo said. "Maybe they're jealous. ... But when you don't agree with their way of life, they destroy your dreams like they did with me."
William Van Wyke was on immigration court benches in York, Pa., and New York City from 1995 until he retired last year.
He takes a very different view of Central American asylum seekers from most immigration judges.
"We have a law that was intended to be generous, that, when it is well understood, would cover many cases — many, many more cases — than those that are granted," Van Wyke says.
And in his mind, immigration attorneys have been focusing on the wrong part of that 1980 law to defend asylum seekers. To Van Wyke, leaving a country torn by violence because you refuse to be a part of it is an act of conscience.
"Let's say somebody did join a gang — what would we say about that person? We would immediately make all sorts of judgments about how bad the person is," Van Wyke explains. "So let's say they're in a situation where they feel obligated to join a gang and put ourselves in those circumstances and say, 'What kind of resistance would it take, what kind of moral strength would it take to say no?' I don't think we have a difficulty understanding what conscience is in a circumstance like that."
It's a lot like when a person speaks out against a government or other repressive forces, Van Wyke says.
"We admire that. We say that person has character, that person has some sort of moral strength," Van Wyke says. "If they're going to be harmed because of that and they are afraid and have a reasonable fear of the consequences for having done that or for being in a situation where they are going to have to do that, then it's perfectly in line with our law to grant them political asylum."
But a spokeswoman for the Executive Office for Immigration Review, which oversees U.S. immigration judges, says the asylum process is working.
"Our immigration judges adjudicate cases on a case-by-case basis, according to U.S. immigration law, regulations and precedent decisions," Kathryn Mattingly says. "They consider all evidence and arguments presented by both parties and decide each case based on the available information. They are fully vetted and well-trained agency employees."
The guerrillas came at dusk in January 1987. They came to ask 18-year-old Jairo Jonathan Elias-Zacarias to join them in the fight against the Guatemalan government.
According to court records, Elias refused. As they left, the two masked guerrilleros told him, "Piénsalo bien": Give it good thought. About two months later, Elias left Guatemala afraid the guerrilleros would come back. He traveled north to Mexico and eventually made it to the United States.
Like thousands of others, he claimed political asylum, arguing that either the guerrillas or the government would hurt him and his family for choosing sides. His request was denied, but Elias fought. His case made it all the way to the U.S. Supreme Court.
On Jan. 22, 1992, the high court ruled against him in a 6-3 decision, saying that just because a person resists forced recruitment by a guerrilla doesn't necessarily mean he is expressing a political opinion.
"Even a person who supports a guerrilla movement might resist recruitment for a variety of reasons — fear of combat, a desire to remain with one's family and friends, a desire to earn a better living in civilian life, to mention only a few," Justice Antonin Scalia wrote for the majority.
In his dissent, Justice John Paul Stevens said the narrow reading of the law betrayed the spirit in which it was written.
"A refusal to support a cause — by staying home on election day, by refusing to take an oath of allegiance, or by refusing to step forward at an induction center — can express a political opinion as effectively as an affirmative statement or affirmative conduct," Stevens wrote. "Even if the refusal is motivated by nothing more than a simple desire to continue living an ordinary life with one's family, it is the kind of political expression that the asylum provisions of the statute were intended to protect."
Immigration and Naturalization Service v. Elias-Zacarias became one of the most important cases in asylum law in the United States. It was a big victory for the George H.W. Bush administration, which argued that a broader reading of the law would open the floodgates along the southern border.
The decision didn't foreclose on the idea that Central Americans fleeing forced conscription could claim political asylum, but it raised the bar for proving it. Suddenly, it meant that asylum seekers not only had to show that they had expressed a political opinion but that their persecutors would come after them because of that opinion.
The question of whether Central Americans fleeing violence should be considered refugees under the law has been debated since the 1980 Refugee Act was passed.
Deborah Anker, a professor at Harvard Law and one of the pre-eminent scholars on asylum law in the United States, says before that time, U.S. law gave asylum only to migrants from the Middle East or communist countries.
"We were really trapped in this Cold War framework, whereas the international definition was global and humanitarian in its basic focus," Anker says.
The 1980 law was intended to bring the U.S. in line with the international community, but the system clearly continued favoring migrants fleeing from conflict in Soviet-friendly countries, including Laos, Cuba, Czechoslovakia and Afghanistan.
In fact, at the same time, war was raging in three Central American nations, and hundreds of thousands of migrants were fleeing to the U.S. seeking asylum. But in the eyes of the United States, they were "economic migrants." Nicaraguans were largely granted asylum because of the U.S. government's opposition to their country's regime. But less than 3 percent of Salvadorans and Guatemalans were granted asylum. Activists and refugees filed a class-action suit saying the U.S. was discriminating against those groups.
Anker says that at the time, the Salvadoran and Guatemalan cases put U.S. immigration officials in a difficult position: Migrants were coming to the U.S. saying they were being persecuted because they had political and ideological objections to the actions of dictators, such as Guatemala's Efraín Ríos-Montt, whom the United States was supporting.
Adjudicators, she says, had a hard time believing their stories of death squads and other government persecution. She thinks that a similar misperception of the situation on the ground is happening now.
"I don't think they understand the political nature of the gangs," she says. "I think this is just dismissed as a question of law enforcement, and just as criminal street gangs. It's a very simplistic approach to analyzing what the country conditions are."
What's more, Anker says, adjudicators then and now sometimes dismiss the claims because the asylum seekers are often poor and adjudicators believe that they could not possibly articulate a political opinion.
"But poor people can have political opinions," she says. "Uneducated people can have political opinions. And women who are being raped can have an opinion that it's not right and that men don't have the right to do that to women, and that kind of culture and violence is supported by their government."
Anker says the concept — that political opinion isn't only for elites and members of formal political parties — is fundamental. It was inspired by the thinking behind the 1951 Refugee Convention, an international accord that spells out how refugees are to be treated and that the Supreme Court has accepted as the anchor for U.S. immigration law.
By 1991, the U.S. government had settled the suit brought by Central Americans, admitting that it had discriminated and that all asylum cases decided during the first decade of the 1980 Refugee Act should be reheard.
Ultimately, the vast majority of those cases never made it to court again, because Congress passed the 1997 Nicaraguan Adjustment and Central American Relief Act, which granted many Salvadorans and Guatemalans legal status in the U.S.
The question of whether they were migrants or refugees was never vigorously debated in the immigration courts.
The odds were always stacked against Elias-Zacarias, but somehow he kept beating them. An immigration judge rejected his asylum application, the Board of Immigration Appeals declined to rehear his case, and then the 9th Circuit ruled in his favor. When the Supreme Court overturned that decision, it should have been the end of his journey in the United States.
He should have been returned to Guatemala to face all that he feared.
But Elias-Zacarias won the lottery — the visa lottery — and was allowed to remain in the United States. In a short telephone interview with NPR, he said he wasn't interested in talking about his past.
But he said that after he won the lottery, he quickly became a legal resident and began a normal life in the U.S.
He has a house and a family now, and about 10 years ago, he became a U.S. citizen.
On a cold winter night in Virginia, Trejo heads out for dinner with his lawyer. His case is a family affair, after all. His lawyer, Jill Mármol, is married to Trejo's cousin Alexis Mármol, who is about to take the bar exam to work as an immigration lawyer.
Trejo wanted to take them out to dinner to El Sol Azteca, where he works after high school. As they walk in, he's greeted warmly by the staff. It's obvious that in the short time he's been here, he has built a life.
"He's a really well-liked kid," Jill says.
As soon as they sit down, Jill and Alexis start asking about his life. He's working six days a week. He goes to school, then comes to the restaurant and works until the place closes. He's taking biology and history entirely in English, and it's tough, he says. His grades are suffering.
Just as quickly, the talk turns to U.S. asylum policy. Both Jill and Alexis Mármol work at a law firm that takes a lot of asylum cases. They hear stories like Trejo's every day, and just as often, they have to have frank discussions with their clients: The odds of getting asylum are slim. At best, they can drag out their case, and then they can cross their fingers that by the time a final decision is upon them, the popular interpretation of the law — or the law itself — will have changed.
"It's frustrating," Alexis says. "We do the best that we can with what we have, but the law doesn't allow us to do much more than that. And someone like [Trejo] deserves to be here, absolutely."
Jill shakes her head. The biggest repercussion of letting people like Trejo in, she says, is that it might encourage others to make the journey north.
"These kids are escaping certain violence and probable death," she says. "What is bad about that? What is bad about them escaping that?"
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