A Breakdown in Logic … And Humanity

A new round of deportations underscores what we already know: The government’s strategy is not only failing — it’s leaving blood on our hands.

Marshall Fitz
May 27, 2016 · 8 min read

New press reports indicate the Obama administration is planning to escalate deportations for hundreds of families — mainly mothers and children — who have fled Central America seeking international protection, but whose claims have been rejected. On its face this sounds like fairly straightforward enforcement of our immigration laws. But a closer examination reveals a deeply callous and misguided strategy.

Refugees fleeing the Northern Triangle of Central America are attempting to escape a region of the world that is wracked with violence and instability. El Salvador, Guatemala, and Honduras are among the five most dangerous countries in the western hemisphere. According to InSight Crime, El Salvador is currently the murder capital of the world.

What’s worse, for the most vulnerable, there is virtually no protection by security forces or accountability emanating from these countries’ justice systems. Femicide rates — the deliberate killing of women — in these three countries also rank among the highest in the world while prosecution rates for these murders hover between one and two percent. Those women and children who manage to flee the danger in their homelands and make the dangerous trek to the United States (or surrounding countries like Mexico, Belize, and Costa Rica) arrive legitimately seeking asylum.

Given the severity and pervasiveness of the violence in the Northern Triangle, we should not proceed with deporting these families to the region unless and until we are certain that all claims for relief have been fully developed with the assistance of counsel and fairly adjudicated before impartial judges. Today, we have little confidence that these families are receiving careful consideration of their protection claims.

To the contrary, all evidence points to a system in which the vast majority of asylum seekers go before an immigration judge to press a complex claim with either no legal representation or wholly ineffective assistance. Under these conditions, we should hit the brakes, not punch the accelerator, on deportations to the region.

People cross the river bordering Guatemala and Mexico, a stop on the route that many Central Americans take when fleeing to the United States. Photo by Agatha Bacelar.

These Asylum Seekers Should Not Be an Enforcement Priority

The Administration’s position is that it is simply enforcing the law consistent with the priorities it has articulated. The individuals it intends to target as part of this “surge” received final orders of removal after January 1, 2014 and therefore qualify as enforcement priorities under the “recent arrivals” rubric of the DHS civil enforcement priorities memo.

That memo was designed to deprioritize enforcement against immigrants who have significant roots in the country and who have committed no crimes. The flip side of the policy was to prioritize individuals who have committed serious crimes, represent a safety threat, or have arrived more recently and have received final orders of removal. This general approach to establishing priorities makes eminent sense as overarching immigration enforcement policy against the backdrop of a broken system.

But the policy misses the mark when applied to individuals fleeing the violence of failing states in Central America. Prioritizing removal of children and families to countries that cannot protect them, regardless of whether they can be squeezed to fit into the overall enforcement policy portfolio, is not a legitimate endeavor.

The language from the memo that the Department of Homeland Security draws from to prioritize these immigrants comes from Priority Level 3. (Priorities 1 and 2 list criminal and security factors rendering someone an enforcement priority.)

“Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.” (emphasis added)

Even by the terms articulated in the policy, these individuals are the “third and lowest priority for apprehension and removal.” Devoting additional resources to removing these individuals is misguided when, as here, there are extenuating “factors suggesting the alien should not be an enforcement priority.” Profound violence in the home countries should surely qualify as an exception to their prioritization. And without confidence that our system is fully and effectively adjudicating claims, we do not and cannot really know whether “they qualify for asylum or another form of relief under our laws.”

In other words, there is ample flexibility under the explicit terms of the policy to exclude these vulnerable individuals from classification as priorities.

A mural in Mexico depicts “La Bestia,” or “The Beast” — the freight trains that migrants commonly hop to ride north. Photo by Agatha Bacelar.

Deterrence is Not a Legitimate Objective Here

The U.S. government has insisted, however, that these removals are important to deter future asylum seekers from fleeing the region. The government presumably believes that the failure to remove these individuals represents “a threat to the integrity of the immigration system” by encouraging future unregulated migration. But that line of reasoning fails on at least four levels.

First, there is no evidence that deterrence works here. The government ostensibly believes that these removals send a signal to other would-be asylum seekers, but it has no reliable data to substantiate the claim. And there are valid arguments pointing in exactly the opposite direction. The current numbers of arriving asylum seekers are on pace to reach the levels from 2014 despite nearly two years of deterrence efforts. Those efforts have taken the form of massive expansions of family detention facilities and ongoing publicized deportations to the region.

Second, even if it worked, deterrence is an illegitimate tool in this context. General deterrence theory posits that punishment of certain behavior will disincentivize others to take similar action. But when the behavior in question is basic survival, what disincentive can truly alter the behavior? America should not be in the business of deterring someone from fleeing for her life.

Third, speedy removals are almost certainly propelling some individuals back to lethal violence. With the stakes so high, we should be more concerned about blood on our hands than discouraging flights from violence.

Fourth, this deterrence project demonstrates profound internal dissonance in the government’s approach to the Central American humanitarian crisis. The administration has called for a regional response to provide protections to individuals threatened by the instability and violence in the region. It has gone so far as to set up special policies like the in-country Central American Minors (CAM) processing program and to call for a refugee resettlement program in the region. These steps show awareness of the special circumstances triggering this Northern Triangle exodus and, along with other measures, should be given a chance to work before pursuing additional enforcement.

Refugees fleeing Central America often seek asylum in Mexico. While submitting their paperwork, many refugees must live in shelters where opportunities to work or receive education are limited. Photo by Agatha Bacelar.

Life-or-Death Decisions Require Special Care and Heightened Scrutiny

Rejecting deterrence as a rationale for enforcement against Central American immigrants because of the unique circumstances does not mean that all enforcement must cease. It simply means that Northern Triangle migrants (especially children and families), even those who have arrived recently, should not be priorities absent aggravating circumstances.

It also means that before the government initiates removals against any of these individuals, that special care must be taken to ensure that each one has been meaningfully represented through a full and fair hearing. That simply does not happen now. A large percentage of these children and families are eligible for legal protection — nearly 90 percent pass the initial credible fear screening for asylum eligibility — but having legal counsel makes all the difference in terms of final case outcomes.

In fiscal years 2014 and 2015, less than 30 percent of the families seeking asylum were represented by counsel. And of the families deported during that period, 86 percent were unrepresented. Looking just at the unaccompanied kids arriving from the region, only about half of these children receive legal representation. And the disparate outcomes between represented and non-represented children are staggering.

In fiscal year 2015, 91% of the cases of children who were not represented by counsel ended in removal of the kids. In dramatic contrast, over the same period, kids who were represented by counsel received relief in 84% of the cases.

Low legal representation rates, coupled with profoundly disparate outcomes, means that we are in the troubling position of having no way to know whether or not we are preventing mothers and kids from being sent to their deaths. It simply isn’t possible unless each of them has adequate legal counsel and a meaningful opportunity to press their case. Mistakes here can be fatal and bureaucratic excuses about the system’s imperfections are nothing more than callous indifference.

The American Immigration Council has been chronicling testimonies of women and their children who have recently been deported to the chaos of the Northern Triangle after their asylum requests for the US were denied. Their reports demonstrate that these families received either no legal counsel or grossly ineffective representation. And it highlights that most of these families now live in hiding and in constant fear of violence.

Ana, a 32-year-old mother from Guatemala, fled to the United States with her son and daughter after being targeted by local gangs. After being deported back to Guatemala, she says she and her children face imminent danger: “You never get accustomed to living in fear. You never get used to having your daughter followed and threatened.”

There are a number of broader policy strategies that could effectively address the humanitarian crisis in the region, including: tackling root causes, cracking down on smugglers, establishing a regional protection framework, and enhancing our humanitarian response to those who arrive in the United States. To be sure, these are not quick fix strategies; they will take time, resources, leadership, and compassion to succeed. But given the alternative — sending women and children back to lethal conditions — the United States should welcome the challenge.

A colorful mural represents an immigrant family seeking a better life. Photo by Agatha Bacelar.

Emerson Collective

Marshall Fitz

Written by

Managing Director of Immigration at the Emerson Collective. Advocate for humanity, sports junky, 1/2-assed Buddhist, proud papa and spouse. Views obv my own.

Emerson Collective

Emerson Collective strives to unlock human potential.

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