Untangling the current U.S. refugee program

August 8, 2018

With 25.4 million refugees, the world is experiencing the worst refugee crisis since the Second World War.

Until recently, the United States was the world’s most generous donor of humanitarian assistance to displaced persons and had the largest resettlement program. But the Trump administration’s new immigration policies appear to be making the United States increasingly less safe and inaccessible for refugees and asylum seekers.

All of this is happening in Canada’s backyard. One direct effect is an escalation in irregular border crossings from the United States into Canada.

As Canadian policymakers, civil society organizations, and immigration attorneys scramble to navigate the new and frequently altering immigration landscape to the south of us, it is worth placing some key elements of the current refugee program in the United States in context.

Slashing the U.S. refugee resettlement cap

The Trump administration has capped the resettlement of refugees at 45,000 refugees for FY2018, a decrease from the previous year’s total of 53,700. This is the lowest cap since the passing of the Refugee Act of 1980, which created the Federal Refugee Resettlement Program. During the last year of the Obama administration, the cap was 110,000.

Only about 20,000 refugees are expected to arrive in FY2018, which ends September 30.

Criminal prosecution of people who seek refuge

In 2005, the Bush administration launched Operation Streamline in one Border Patrol sector near the Texas city of Del Rio to criminally prosecute unauthorized crossers. The program was expanded to more border sectors under the Obama administration. In 2014, in response to an increase in asylum requests from unauthorized border crossers at the southern border, particularly from Central America, the Obama administration attempted to detain families indefinitely, but was prevented by the courts.

Under both the Bush and Obama administrations, families stayed together, with some exceptions. So, President Trump is not the first president to detain families. The difference is in scale.

On January 25, 2017 President Trump issued two Executive Orders, one to secure the southern border of the United States against foreign nationals without proper or adequate documentation, while the other clamped down on “sanctuary cities” and called for strict enforcement of immigration laws. The net effect was to impose greater burdens on undocumented immigrants, refugees, and asylum seekers.

In April 2018, Attorney General Jeff Sessions announced a zero-tolerance policy on adults deemed to have entered the United States irregularly from Mexico. Under this policy, anyone without prior authorization to enter the United States is arrested by the U.S. Border Patrol, charged with unauthorized entry, referred to the Department of Justice for prosecution, and placed in detention.

Adults arrested are treated as criminals and placed in custody, while their children are labeled “unaccompanied minors” and placed in the care of Health and Human Services’ Office of Refugee Resettlement. Approximately 3,000 children, including 102 under the age of five, have been separated from parents. Many fled violence in Central America, only to be torn from their parents at the border and placed in institutions among strangers.

Under intense domestic and international pressure to halt family separations (see comments from Prime Minister Trudeau), Trump issued an Executive Order on June 20 that ended family separations. But reuniting families has been difficult and expensive. In some cases, parents have already been deported. Other parents are not eligible to be reunited with their children.

Refugee claimants who present at the border are considered to be “arriving aliens” under the Immigration and Nationality Act and do not have the right to seek release from an immigration judge; rather they are subject to the Department of Homeland Security (DHS) for “parole” determinations. The American Civil Liberties Union has been involved in a lawsuit which claims that DHS has had a “near zero release” policy for such arriving aliens in certain DHS district offices. As well, there is evidence that some border officials are turning people away and telling them to come back later, stopping them from even setting foot in the United States. And people desperate to get in, because they are sleeping on streets in Mexican border cities, are giving up on going across the bridge; instead, they attempt to go under it and then turn themselves in.

Rolling back protections for women refugees

According to the United Nations, a refugee is someone who has been forced to flee his or her country because of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group.

The U.S. interpretation of the term “refugee” is narrower than international standards, including Canada’s. It is also more contentious, with groups unable to agree, for decades, on what constitutes a “particular social group.”

Still, according to the Center for Gender and Refugee Studies, in recent years, women fleeing gender-based violence have been able to obtain asylum in the United States by claiming persecution as members of a “particular social group.” Such cases have succeeded when they have demonstrated that the applicant’s country was unable or unwilling to offer them protection.

In 2014, the case Matter of A-R-C-G issued a groundbreaking decision that recognized a particular social group as defined by gender, nationality, and relationship status: “married women in Guatemala who are unable to leave their relationship.” It found that patriarchal norms in Guatemala perpetuated widespread gender-based violence. The decision that women fleeing domestic violence may qualify for asylum was reaffirmed in numerous subsequent cases.

A recent case seems to indicate a rejection of such decisions. This past June, the Attorney General reversed an immigration appeals court ruling in the case Matter of A-B-, seeking to narrow the legal basis for a credible fear of persecution needed to make an asylum claim.

Ms. A-B- arrived in the United States from El Salvador seeking asylum. A victim of extreme spousal abuse, she had first made many unsuccessful attempts to secure protection from the Salvadoran authorities before she decided to flee the country. Her asylum case was sent to the Charlotte Immigration Court, where it was heard by a judge with a long history of denying asylum to domestic violence survivors. Ms. A-B-‘s claim was rejected.

Ms. A-B- then appealed her case to the Board of Immigration Appeals, which unanimously found that her claim was credible and met the requirements for asylum. The case was returned to the judge who was to grant her asylum, in accordance with their decision.

In an unusual turn of events, Attorney General Sessions unilaterally decided to adjudicate the case himself. He determined that private activity is not grounds for asylum, including in cases of domestic violence.

With respect to her substantive eligibility for asylum, Ms. A-B-  argued that the Attorney General should affirm the Board’s decision finding her eligible for asylum and reaffirm the validity of A-R-C-G- and its holding that a successful claim for asylum can be based on domestic violence. More broadly, Ms. A-B- and several amicus parties urged the Attorney General to uphold well-settled U.S. law recognizing that asylum seekers can qualify for protection based on persecution perpetrated by non-state actors in situations where the applicant’s government is unwilling or unable to provide protection. DHS agreed that the Attorney General should not overturn A-R-C-G- but took no position on Ms. A.B.’s particular claim.

Ms. A-B- claim was rejected despite entrenched patriarchal conditions in El Salvador that were like those in Guatemala and documentation that El Salvador ranks among the world’s deadliest countries for sexual violence and femicide.

The decision of Attorney General Sessions undermines asylum protections for women, making it increasingly difficult for victims fleeing domestic and sexual violence in their home countries to qualify to make an asylum claim in the United States. If they enter the United States, they may attempt to make asylum claims, which should be referred to Asylum Officers for initial “Credible Fear” determinations. This process has always been flawed, with evidence of border officials discouraging individuals from making claims, or actively blocking individuals from making claims, through threats of detention and, in some cases, prosecution.

On the matter of Ms. A-B-, Sessions’s decision could overturn decades of legal and advocacy efforts to protect abused women. The concern is that such individuals who make it to the “credible fear” stage will more likely have preemptory denials at the “credible interview” stage and even more at the “immigration judge review” stage.

Immigration attorneys and advocates have already seen cases “pretermitted” or summarily denied before Immigration Judges take full testimony from the applicants.

Let us be clear: Attorney General Sessions’s interpretation of the case also goes against advisory opinions from the UN Refugee Agency that state that victims of domestic violence are potentially members of a “particular social group.”

The regional context

Why so many Central American asylum seekers?

Between 2011 and 2016, 161,742 people from Central America’s northern triangle —El Salvador, Guatemala, and Honduras—applied for asylum in the United States and other countries in the region. Forced internal displacement also appears to be widespread, although data is fragmented.

They were fleeing

  • Some of the world’s highest rates of homicide for countries not at war
  • Gang violence or forced recruitment
  • Crime
  • Poverty
  • Domestic abuse and gender-based violence
  • A police force they distrusted and feared.

Governments at home were either unwilling or unable to protect their most vulnerable citizens.

Interpreting gender-based violence in Canada

In March 1993, Canada become the first country to issue guidelines on refugee women claimants fleeing gender-related persecution, including practices such as forced marriage, nondomestic sexual violence, female genital mutilation, as well as domestic abuse. Since then, the recognition of gender-based violence has become relatively well established in Canada’s refugee determination system and has had a profound and positive influence on women’s rights in international refugee law.

Between 2013 and 2017, gender persecution was the top reason women sought asylum in Canada, with domestic violence, accounting for 50 per cent of all gender persecution claims.

The international context

The 1951 Refugee Convention

Article 31 of the Convention relating to the Status of Refugees prohibits penalizing refugees for unlawful entry or presence. It acknowledges that desperate people sometimes take desperate measures. Prosecuting asylum seekers for irregular entry before determining if they are entitled to asylum violates this Convention. By detaining migrant families, the United States is subverting its treaty obligations.

The rights of children

According to the United Nations High Commissioner for Human Rights, a policy of separating children from their families “amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child.”

International instruments, including the 1989 Convention on the Rights of the Child mandate that states act in the “best interest of the child.” Specific Convention provisions address the rights of children to be with their parents and family:

  • Article 7 – the right to know and be cared for by one’s parent
  • Article 8 – the right to family relations without interference
  • Article 9 – bans separation of parents from children except when it is necessary to ensure the best interest of the child.

The United States, the only country in the world NOT to ratify this Convention, is separating children from their parents as a deterrent and punishment; such an action is incompatible with the “best interest of the child.” The policy is having devastating effects on children and parents.

The UN High Commissioner for Human Rights has also called on the United States to stop family separation because children should never be detained for reasons related to their migration status or that of their parents.

What should Canada do?

On the border between the United States and Canada, for the period January-June 2018, there were 10,744 interceptions (refugee claimants apprehended between the official ports of entry) of people trying to get into Canada. In 2017, 20,000 people made irregular crossings into Canada to claim asylum.

Before 2004, a person seeking asylum in Canada could ask for refugee protection upon arrival at any port of entry. This changed with the Safe Third Country Agreement (STCA) between Canada and the United States. The STCA requires those seeking asylum in Canada or the United States to make a refugee claim in whichever country they reach first, with some exceptions.

In July 2017, the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches (of which Project Ploughshares is an operating division), joined an individual litigant and her children to ask the Federal Court of Canada to strike down the STCA and allow her to make a refugee claim in Canada, even though she landed first in the United States. She has strong reasons for believing that she might not be protected if forced to make her refugee claim in the United States.

People returned to the United States under the provisions of the STCA risk being sent back to their home countries, where they could face persecution, torture, and even death. This is contrary to their rights under the Canadian Charter of Rights and Freedoms, which, courts have determined, grants all people on Canadian soil the right to life, liberty, and security of the person.

The three organizations are thus arguing that sending refugee claimants back to the United States violates the Canadian Charter of Rights and Freedoms and Canada’s binding international human rights obligations. The case is ongoing.

When the STCA went into force, the Canadian government designated the United Sates a “safe” third country, where refugee claimants who needed refugee protection would receive it. Recent immigration policies in the United States show that Canada cannot in good faith continue to designate it as “safe.” Withdrawing from the agreement would allow people to present themselves in an orderly way at ports of entry, ending irregular crossings and dangerous journeys.

Thanks to Professor Alexander Vernon for his valuable feedback and to intern Selena Jones for her research assistance.

*Photo: A mother migrating from Honduras holds her 1-year-old child as surrendering to U.S. Border Patrol agents after irregularly crossing the border June 25, 2018, near McAllen, Texas. (AP Photo/David J. Phillip).

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