The U.S. is confronting a serious refugee crisis at its Southern border: Since October, the number of unaccompanied children crossing the border illegally has surged to over 50,000. These young people are arriving not only from Mexico, but from Honduras, Guatemala, and El Salvador—countries so wracked by violence that parents are choosing to send their children alone on a long, dangerous journey, knowing they may never see them again. (As Dara Lind notes, other less violent countries in the region, like Nicaragua and Costa Rica, have also experienced huge increases in asylum applications from their more violent neighbors.) Do these children have any hope of gaining asylum in the U.S.?
Rebecca Leber suggests they might, noting that the ACLU and other groups are suing to demand legal representation for these children:
They’re not American citizens, obviously, so why do they deserve representation? One reason is that many of them have fled violence in countries like El Salvador, Honduras, and Guatemala. That means they may qualify for asylum under immigration law. An example is one of the plaintiffs, a ten-year-old boy from El Salvador, who watched his father’s murder and who says his life has been threatened by gang violence. Facts like that might mean the difference between deportation and asylum.
The key word here is “might.” Asylum is not a cure-all. The system is already overloaded, and as Leber notes, the new funds suggested by President Obama will probably not be enough to deal with the influx of cases. But more importantly, asylum is only granted under very specific conditions, and gang violence as such may not secure it for migrant children, whether they have legal representation or not. I reported on a case like this in 2011. Fernando Quinteros-Mendoza fled El Salvador in 2004 after repeated acts of intimidation and extortion—even death threats—by a gang whose territory he had the bad luck of passing through. Even though they attacked him outside his church and threatened to kill him if he continued to attend, his asylum claim was rejected:
In 2006, he brought his case before an immigration judge who found him both credible and sympathetic—“I think you are in a terrible situation,” the judge said during the hearing—but who nonetheless ruled that Fernando did not qualify for asylum, which is only granted when an applicant’s persecution falls into one of five specific categories. (Intimidation by a gang is not one of those categories; religious persecution is, but because religion was not a “central reason” for Fernando’s persecution, it didn’t suffice.) The asylum bid failed—and so did an appeal to the Fourth Circuit in 2008.
Ultimately, Fernando was granted a temporary stay in late 2011 only because of the tireless efforts of a group of lawyers and advocates. This is not a model that can be scaled to meet the needs of over 50,000 migrant children, many of whom will have claims that (under the specific conditions of asylum law) will be less legally compelling than Fernando’s, regardless of how morally compelling they may be. That sobering fact indicates not only the depth of the problem on the country’s hands—and the desperate claims of refugee children are a problem for the whole country, not just the President—but also the difficulty, within our existing system, of finding a quick and satisfying solution.