The surge of unaccompanied minors from Central America arriving in the U.S. slowed down in July. Department of Homeland Security Secretary Jeh Johnson attributed the decline to “an aggressive campaign to counter the rise of illegal migration.” More than 50,000 children, mostly from Honduras, Guatemala and Nicaragua, have sought safe haven in the United States since January.
Despite characterizing the influx of migrant children as an “urgent humanitarian situation” in June, President Barack Obama’s administration continues to push a detain and deport policy. On Aug. 1, House Republicans passed a bill that would speed up deportations of the children and provide $694 million (far lower than Obama’s $3.7 billion request) in supplemental funding to address the surge. While the bill did not become law, it blocked funding for food and shelter for the children and support for more asylum officers who could consider the children’s requests for relief. On Aug. 22, immigration and civil rights advocacy groups, including the American Civil Liberties Union, sued the federal government for allegedly violating the Constitution and federal laws in its treatment of Central American children and mothers seeking refuge in the United States.
U.S. immigration laws pose almost insurmountable barriers for these Central American youths fleeing gangs, drug lords and threats of death or rape. But consider another group of refugees that it welcomes without question: Cubans. The erratic treatment says that U.S. immigration policy is guided more by politics than by humanitarian considerations or respect for international standards for treatment of refugees.
A marked difference
Thousands of undocumented Cubans each year are welcomed as soon as they set foot on U.S. soil. The special preference afforded them stems almost wholly from the United States’ Cold War–era fear of communism. The “wet foot, dry foot” policy, grounded in the 1965 Cuban Adjustment Act, allows Cubans to be protected (fed, registered, given work permits and health care) once they enter the United States; they are not even required to prove eligibility for asylum. They do not have to belong to a specific, persecuted social group or show that their lives are in danger. They need only to set one foot on U.S. territory. A year later, they can become permanent legal residents. While the U.S. fear of communism may have diminished, the presence of a large Cuban-American voting bloc keeps this special preference in place.
In addition to these arrivals at the U.S. border, thousands of Cubans are granted refugee status each year after applying from Cuba. In 2013 the U.S. admitted 26,407 Cubans as refugees or asylees. That is nearly one-fourth of the refugee and asylum seeker total admitted that year.
The contrast with Central America is telling. In the 1980s hundreds of thousands of Salvadoran refugees fleeing U.S.-supported repressive right-wing regimes poured into the U.S., crossing the border illegally. Guatemalans also arrived, fleeing government-sponsored genocide that killed more than 150,000 people from 1960 to 1980. During the 1980s, the U.S. refused most applications for asylum from El Salvador and Guatemala.
Unlike the 1980s, today children are fleeing not right-wing death squads but violent gangs and drug traffickers. But like the ’80s-era refugees, they are unprotected by their governments.
“I went to the police twice to report the threats,” Mario, 17, who fled gang violence in El Salvador, told researchers from the U.N. refugee agency. “They told me that they would do something. But when I saw that they weren’t doing anything to help, I knew I had to leave.”
In a new book by Alfonso Gonzales, “Reform Without Justice: Latino Migrant Politics and the Homeland Security State,” former Salvadoran Supreme Court Justice Mirna Perla de Anaya, who was herself a refugee in Canada in the 1980s, said today’s deportees face a bleak future. Police persecute and stigmatize deportees, she said, sometimes extorting them for money or sexual favors instead of providing protection. In a forum preceding their July meeting with Obama, the presidents of Guatemala, Honduras and El Salvador called on the U.S. to fund anti-crime efforts in their countries to change the conditions that drive refugees.
Under both international and domestic law, the United States is obligated to provide these vulnerable children with legal and humanitarian protection. Congress is too paralyzed by partisan politics to pass any laws to help these children. But even without congressional action, three legal options exist for migrant children in the U.S., although administrative and political obstacles make them difficult.
The first option is asylum. This is theoretically possible, although immigration authorities insist persecution by gangs is not the same as being a member of a persecuted social group — a basis for being granted asylum.
If Obama doesn’t act to grant them a legal means to stay, the children have only one option, which is really a non-option: disappearing into the U.S., along with 11 million other undocumented immigrants.
The second, giving special immigrant juvenile status, depends on a state court’s taking custody of a child and specifically finding that he or she should not be returned to his or her home country because of danger of abuse, neglect or abandonment. This is a complicated process, requiring evidence of family dysfunction in the home country, which may be difficult to provide. While many children are not even represented by an attorney during removal proceedings, the intersection of state juvenile laws and federal immigration laws is beyond the expertise of most lawyers. Many — perhaps most — juvenile courts and judges will not be familiar with the immigration requirements.
Finally, Obama could take executive action and grant temporary protected status (TPS). U.S. presidents have granted such relief to Central Americans before. In 1998, Bill Clinton granted TPS to Honduran immigrants after Hurricane Mitch wreaked havoc on the country’s economy and infrastructure. In 2001, George W. Bush ordered TPS for Salvadorans after a series of earthquakes hit El Salvador. TPS may be granted when conditions in the home country prevent safe return or when the country’s government cannot adequately handle their return.
No safe return
The current cases offer little hope. Honduras, Guatemala and Nicaragua are unable to handle the safe return of these child migrants. For example, on Aug. 20, The Los Angeles Times reported that at least one of the recent deportees was killed in Honduras since February. In addition, Congress is unable or unwilling to provide for their safety, and immigration authorities lack sufficient resources to process their claims for asylum.
In view of the devastation wrought by gangs and drug traffickers in these countries, the White House should use its best, most comprehensive option, granting TPS.
The 1965 Cuban Adjustment Act was a political response that privileged Cuban immigrants, regardless of whether they faced any danger at home. Today’s Central Americans fleeing danger — in some cases, imminent death — need an urgent humanitarian response. Obama has the authority to act, and he should do so now, before one more child is sent back to deadly Central American streets. If he doesn’t act, the children have only one option, which is really a non-option: ducking and dodging and disappearing into the U.S., along with 11 million other undocumented immigrants.
Editor's note: The article has been changed to reflect a correction that The Los Angeles Times issued to its Aug. 20 article on the deaths of recent deportees to Honduras.