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Update on Central American Asylum Seekers: Detention of Children, Refugee Processing, Legislation, and Recent Case Law

The refugee crisis erupting from Honduras, Guatemala, and El Salvador (Northern Triangle) has continued unabated. The devastating murder rate in these countries has led to a 1,185 percent increase in asylum applications as compared to other neighboring Latin American countries. Overwhelmed by gangs, 95 percent of the murders in the Northern Triangle go unsolved. In an attempt to address the problem, Senate Bill S.3106 (Secure the Northern Triangle Act) was introduced by Harry Reid and other Senate Democrats. The bill would authorize $1 billion dollars to help fund crisis centers in the Northern Triangle and asylum havens in Mexico. It also would criminalize surveying the border agents — an addition aimed at the “coyotes” who smuggle people across the border for money. Likewise, the Obama administration has already implemented and has expended the Central American Minors (CAM) program, which allows minors to apply for refugee status while still in the Northern Triangle. (See below.)

Although the legislative and executive branches are drafting bills and enacting programs to assist in curtailing the crisis, asylum law in this area has not positively addressed gang violence: asylum claims based on gang violence continue to fail. A recent Eighth Circuit decision was added to the growing number of decisions that deny asylum because the persecution faced by the applicant did not arise from a protected ground or was not particularized enough. In this case, Garcia-Milian v. Lynch, Guatemalan gangs threatened, beat, and eventually killed the applicant’s uncle in their attempts to extort money from him. They told the uncle’s family, including the applicant, that they would shoot each family member “one by one” if the family did not give the gang money. The immigration judge found the applicant credible, but that the persecution was based on money and not a protected ground. The BIA and then the Court of Appeals affirmed, the latter noting that “simple criminal intent” is not a protected ground and that since the gang threatened the whole family, particularized persecution of the applicant was not shown.

On a more positive note, earlier in the summer, the Ninth Circuit Court of Appeals affirmed that the nearly 20-year-old Flores settlement agreement governs the custody and release of all immigrant children — unaccompanied and those accompanied by a parent — and that the Obama Administration’s family detention practices violate that agreement. The plaintiffs had asserted that the Administration continues to detain children in deplorable and unsanitary conditions in CBP facilities in violation of the settlement and the court’s orders.

The Ninth Circuit’s decision came after DHS appealed last summer’s ruling by district court judge Dolly Gee, finding DHS in violation of the agreement. DHS had argued that the settlement did not apply to children apprehended with their mothers, and that the continued detention of children who arrived with their mothers was therefore permissible. However, the appellate court held that the Flores settlement does, in fact, govern the treatment of both unaccompanied and accompanied children, and that neither the family detention centers nor ICE’s published standards governing such detention centers comply with the settlement. The appellate court further affirmed that the district court was right to deny DHS’s request to amend the settlement agreement in order to permit family detention to continue. While the court disagreed with the district court’s finding that the settlement’s terms address the release of mothers, its decision does nothing to preclude the release of mothers with their children.

The Administration controls the next move, and has basically three options: (1) it can release the children to other relatives and continue to hold their mothers; (2) it can release the mothers with their children; or (3) or it can push them through the expedited removal process at an even faster rate than it is currently doing. The lower court judge in the case, Judge Gee, had held that the children could be held up to five days. Thus, the children and mothers could be rammed through the process even though clearly their due process rights would be violated.

Meanwhile, the Administration has expanded initiatives to address the Southern Border migration challenges and recently announces new initiatives to aid Central American refugees, including prescreening of applicants abroad and expansion of the existing Central American Minors (CAM) program with the assistance of Costa Rica. Costa Rica has agreed to enter into a protection transfer arrangement (PTA) with the U.N. High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) to help address the crisis. Through coordination with UNHCR and IOM, the U.S. government will prescreen vulnerable applicants from the region seeking protection. After prescreening, this arrangement will allow UNHCR and IOM to transfer applicants most in need of immediate protection to Costa Rica, where they will undergo refugee processing before being resettled to the United States or another third country. Additionally, for cases not requiring immediate transfer to Costa Rica, the United States is establishing an in-country referral program to enable vulnerable residents in this region to be considered for refugee protection in the United States after being screened and interviewed by DHS officers in their countries of origin. The expansion of the current CAM program is intended to provide children in El Salvador, Guatemala, and Honduras with a safe and orderly alternative to the dangerous, irregular journey that some children are currently undertaking to reach the United States.

About 10,000 applications have been received, which allows a lawfully present parent within the U.S. to request refugee status for their children located in one of these three countries. When accompanied by a qualified child, the following additional categories of applicants may also be considered under the program: (1) sons and daughters of a U.S.-based lawfully present parent who are over 21 years old; (2) the in-country biological parent of the qualified children; and (3) caregivers of qualified children who are also related to the U.S.-based lawfully present parents.