On Monday, Luis walked up a steep path at the Senda de Vida migrant shelter in Reynosa, Mexico, and through a dirt lot strewn with broken pieces of a jungle gym. He approached a chain-link fence that encloses the lot, and looked through it for the first time. There, the muddy-green waters of the Rio Grande flowed gently toward the Gulf. Crossing the river might have taken mere minutes, but Luis couldn’t simply jump the fence. Guards with gang ties patrol the river and charge migrants to cross. Luis, 20, has been running from gangs in his native Honduras for more than 1,500 miles, and even now, 25 yards from the U.S. border, he isn’t safe.
Thousands of young Central Americans like Luis—who asked that his name be changed to protect him from the gangs—are coming to the U.S. to escape the violence and poverty at home, an "unprecedented surge" that's causing what President Barack Obama has called a humanitarian crisis. The government's immediate focus is on feeding and housing the migrants, many of them unaccompanied children, who are overwhelming shelters and detention centers. But immigration authorities eventually will send most of them back to their respective countries, including those who face real dangers at home. Attorneys and advocates say that many of these migrants should be protected under America's asylum laws, which were created with the noble goal of saving refugees from imminent peril.
Gang members had been pushing Luis to sell drugs since age 15, he said. Their threats weren’t empty: He’d grown accustomed to crossing the street to avoid walking by dead bodies. (Honduras has the highest murder rate in the world.) Two months ago, he’d had enough. At home in Choluteca, he told his parents that he was going out to play soccer. Instead, he headed north. He had sold his bike and a pair of Nike sneakers for 800 lempiras, about $38, to fund a trip to the United States. Beyond that, he didn’t have a plan. None of his relatives live here, and he had no idea how he would get to the border, how difficult it would be to cross, how immigration authorities would treat him if he were caught, and where in America he would go if he crossed undetected. This country, as he saw it, was simply a refuge from the gangs and a place to work. “If you want to go on an honorable path, they won’t let you,” he said. “They threaten you with killing your family.”
Karen Musalo, a law professor at the University of California, Hastings, and the director of its Center for Gender and Refugee Studies, has worked in refugee law for 30 years, including in-country fact-finding work in Honduras, El Salvador, and Guatemala. She says that due to immigration judges' conservative interpretation of asylum law, most migrants fleeing gang threats will not be protected, regardless of how real and serious the danger they face may be. “These young people are coming to save their lives,” Musalo said. “Under a fair interpretation of the law, many of those cases, many of those individuals, should qualify for asylum." Musalo says there are various explanations for why the law is being interpreted in such a restrictive way, but one rises to the top: “That if you accept that these are legitimate claims of asylum, there is this fear of having many people come.”
When adult migrants from Central America are apprehended at the border, the asylum process begins almost immediately. They are asked if they have a fear of returning to their country. If they answer yes, they are interviewed by an asylum officer to determine whether that fear is credible. Once their case goes to immigration court, they must show that they have been persecuted or have a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group, upon returning to their country. Unlike a Christian migrant fleeing Al Shabaab in Somalia or a political dissident from China, Luis is not seen by the court as having a clear-cut characteristic that causes him to be targeted. Experts say that many migrants from these countries do qualify for asylum as a member of a particular social group, but that the courts are being unnecessarily restrictive in their interpretation of the law.
Members of a family that has been perceived as anti-gang, migrants willing to testify against gangs in open court, or those taking concrete steps to oppose gang membership and authority have all seen success in court on the grounds that they are members of a particular social group. Heather Yvonne Axford, a senior attorney at Central American Legal Assistance in New York, says she has also seen some success in proving that clients escaping gang violence are being persecuted for their political opinions in resisting the authority of the gangs, where gangs act as de facto governing authorities.
In some cases, Axford says, clients may also receive protection under the Convention Against Torture, when they can prove that they stand a likely chance of being tortured upon returning to their country, either at the hands of the government or with government acquiescence. There are a few other types of relief available to migrants, like the visas that protect trafficking victims or those who have been victims of crime, but experts say that few of those fleeing gang violence will qualify for these other types of relief. Child migrants may also qualify for Special Immigrant Juvenile Status, if they have been abused, abandoned, or neglected, but many will also go through the asylum application process. Many will be deported.
“I feel very strongly that this crisis needs to be seen as a larger humanitarian crisis, and not something that our very broken immigration system is equipped to address,” Axford said. “Because there are some people who will be protected under our immigration laws but there are other people fleeing very serious harm that won’t be protected under our immigration laws.”
Megan McKenna, a spokesperson for Kids In Need of Defense, says the U.S. government should use the United Nations High Commission on Refugees recommendations when adjudicating the cases of unaccompanied minors fleeing gang violence. “These guidelines encompass a broader range of protection concerns that include the very real targeting of children for violence and death by criminal gangs in their communities,” she said by email. “U.S. jurisprudence is mixed, but largely fails to recognize children’s gang-based asylum claims as the type of persecution qualifying for refugee protection.”
It’s instructive to remember what prompted the creation of our asylum law: the Holocaust. Hundreds of thousands of European Jews applied for visas in the U.S., but many were turned away due to an official quota. To deal with the refugee crisis after World War II, the United Nations created the 1951 Convention Relating to the Status of Refugees. Sixteen years later, a universal document was created to remove the geographic and temporal limitations of the Convention, in the form of the 1967 Protocol Relating to the Status of Refugees. In 1980, the U.S. Congress enacted legislation to bring its own laws into compliance with the Protocol. Part of our asylum law is based on the idea that people have the right to flee persecution, and that the barriers that led to so many deaths during the Holocaust should no longer exist. When refugees legitimately need a safe haven, they should have the opportunity to seek it without being treated as criminals.
Alexandra Goncalves-Pena, an attorney in New York City at the Hebrew Immigrant Aid Society who is helping children fleeing gang violence in Central America, says she often has to tell them that their cases will not receive a positive result in court. “If there is even an off-chance there’s an argument I can make, even if it’s weak, those cases I will be inclined to take,” she said. “Because even if they will not win, these cases need to be before the judges, because the judges need to be aware of the reality these people are suffering in their home countries.”
Unlike someone on trial in the criminal justice system, immigrants do not have the right to an attorney in immigration court. Instead, they must hire an attorney or find one willing to work pro bono. They will find few resources in the Rio Grande Valley, apart from the South Texas Pro Bono Asylum Representation Project, based in Harlingen, Texas. ProBAR advises migrants in local detention centers on their rights in court, the requirements for bond, and other forms of relief that might be available, but they only take on a tiny fraction of these cases. In 2013, of 2,932 adult men that received this orientation, ProBAR was able to take on just 3 percent of their cases.
“Many of the young men who we see through our general group orientations explain to us that they have come to the United States because members of the MS-13, the 18th Street Gang or other criminal organizations have attempted to recruit them,” said Nicole Gamble, one of just two ProBAR attorneys who represents adult clients. “They describe death threats as well as beatings as recruitment tactics. Despite the real, expressed fear, asylum claims based on these recruitment claims have not been successful.”
As media have descended on shelters in Reynosa and on the U.S. side of the border in recent weeks, two explanations have emerged for the dramatic uptick in migration from Central America: the terrible conditions in those countries, and rumors of changes to immigration law that might work in their favor in the United States. Gamble says a simple linguistic issue may be partly to blame: The Spanish word for "parole" is permiso—the same as the word for "permit."
“Confusion may arise because people believe they are receiving a permit to remain in the country indefinitely, while in reality, they are only being paroled into the country for the duration of their removal proceedings,” Gamble said by email.
Musalo hesitates to put too much importance on the role of rumors in the recent exodus: “One doesn’t really need another reason to leave. If someone threatens you with death, already killed your next door neighbor, how fatalistic do you want to be? Do you want to stay or do you want to go?”
Migrants at the shelters in Reynosa indicate that the poverty and violence in their home countries are the most powerful factor in their decision to leave, but the rumors can have a catalyzing effect. A person may be desperate to leave his or her country, and a rumor that women with children will be given visas, or that minors will be allowed to live with family members in the U.S., may further influence their decision about whether to leave.
Luis said he didn’t leave Honduras earlier because he was too young. Now, he’s grown up and feels it’s his responsibility to help his family. I asked him repeatedly about why he’d chosen to leave right now—was there a new threat, a motivating incident? No. He explained that he didn’t want to sell drugs. But if he continued to refuse the gangs, his life and those of his family members were at risk.
If Luis seeks the help of a group like ProBAR, it’s unlikely they will take on his case. The danger may be real, but his story is common. There are too many like it for it to stand apart. For now, he waits inside of the Senda de Vida shelter, a small compound with a handful of buildings. He’d been there about two weeks. The claustrophobia is starting to get to him.
“I feel like I’m locked up, I don’t have freedom,” he said. “I get up in the morning feeling sad. Sometimes I eat, sometimes I don’t. I feel desperate being here.”
Last week, Luis was able to cobble together a few lempiras and called his parents for the first time since leaving Honduras. They thought he’d been kidnapped or killed by a gang, and he could hear them sobbing with relief. He assured them he was safe.
This post has been updated.