Michael Kagan is the director of the Immigration Clinic and the Edward M. Bernstein & Associates Children’s Rights Program at the University of Nevada, Las Vegas.
Attorney General Jeff Sessions has been escalating his rhetoric against immigrants, this time targeting asylum seekers and the lawyers and adjudicators who handle their cases. He's been particularly upset about a surge in asylum claims by Central Americans fleeing gang violence, which he thinks is a sign of "rampant abuse and fraud." Last month, he called unaccompanied children who flee from MS-13 and other gangs "wolves in sheep's clothing."
I represent some of these supposed “wolves” as director of the immigration clinic at the University of Nevada at Las Vegas. Our youngest client is 4. Based on my experience training law students to represent asylum seekers, mostly children from El Salvador, Honduras and Guatemala, Sessions’s rhetoric against these immigrants is irresponsible, and his stance on how to deal with asylum seekers is morally untenable.
Most of our clients are in middle or high school. But unlike most teenagers, they have seen family members and neighbors murdered; they have been threatened and extorted by gangs on their way to school; and some of them have been raped by gang members or told that they had to become the “girlfriend” of a gang member. In other words, they were on the verge of becoming sex slaves to criminals.
So they fled north to the United States.
The central question in an asylum case is whether the applicant has a “well-founded fear of persecution.” An applicant has to show they are genuinely in danger. There are certainly disputes as to how much risk each immigrant really faces. But that’s not really the main problem with Central American asylum cases today, because no one disputes that gangs are genuine threats.
Sessions himself described the MS-13 gang: "When we talk about MS-13 and the cartels, what do we mean? We mean criminal organizations that turn cities and suburbs into warzones, that rape and kill innocent citizens and who profit by smuggling poison and other human beings across our borders. Depravity and violence are their calling cards, including brutal machete attacks and beheadings."
I agree. But under the law, the threat of brutal violence is not enough to win asylum. Immigrants must show that they are seeking protection from violence based on one of five reasons: race, religion, political opinion, nationality or membership in a particular social group.
Central American asylum cases mostly fall in the last category, which is the most ambiguous. There is much confusion about what constitutes a “particular social group,” and courts have been inconsistent and legally incoherent on how these cases should be handled. In practice, that means many people fleeing from criminal groups can win asylum while others cannot. But who wins and who loses in the end does not correspond with which cases are most compelling based on a common sense of morality.
We desperately need more clarity about what reasons for persecution should count. But I would suggest that the public start with a more fundamental question: Who cares? If a child is under attack, do we need to parse the reasons before we offer them protection? In every moral tradition, isn’t protecting an innocent person — especially a child — a universal good?
Sessions has been clear on how he would answer those questions: He wants to send MS-13's victims back to MS-13. In a speech to the agency that supervises immigration judges, Sessions said he wants judges to treat people harshly when they have the temerity to flee from a persecutor whose motivations are not on the official list of acceptable reasons to fear grave harm.
In effect, he’s asking judges to tell children that we know they will likely be killed or raped, just not for the right reason.
I can only hope that this is not what most Americans would want if they heard these kids’ stories. We have clients whose terrified parents took them from house to house, hoping death threats would stop, until they finally sent their children north to the United States. We are trying to protect teenage girls who are raising babies conceived from sexual assaults. We represent teenage boys who saw neighbors murdered for resisting the gangs; and when the gangs came for them, they came to the United States for help.
A Justice Department fact sheet says MS-13’s motto is “kill, rape, control.” When our attorney general calls for the United States to turn its back on asylum seekers, we need to ask: What is our motto? When children in danger come to our doorstep, what do we say? Do we say, “We would like to protect you, but we cannot”?
I hope that’s not our answer.