"We have asked Congress to close border security loopholes so that illegal immigrant children can be safely and humanely returned back home.”
— Trump, in an Oval Office address on immigration, Jan. 8, 2019
“We want to save lives. We want children to be safe. The children are being decimated. And I’m not talking about necessarily children in our country. I’m talking about wonderful children that are coming up from other places, whether it’s Honduras or Guatemala, or El Salvador or Mexico, or other places. And we have to take care of those children also. We can’t let them die on the way up.”
— Trump, in a Rose Garden news conference, Jan. 4, 2019
President Trump says he’s concerned for Central American children making a potentially hazardous trek to the United States. But his noble sentiments and honeyed words are at odds with the tough-love solution he’s proposing.
The journey from Central America to the U.S.-Mexico border comes with risks. The White House notes that “nearly one-third of women are sexually assaulted.” This statistic comes from Doctors Without Borders, which interviewed 56 women for a report in 2017 and found that 31.4 percent were “sexually abused” on the journey; 10.7 percent were raped.
The same report says: “The violence experienced by the population of the NTCA [Northern Triangle of Central America] is not unlike that of individuals living through war. Citizens are murdered with impunity, kidnappings and extortion are daily occurrences. Non-state actors perpetuate insecurity and forcibly recruit individuals into their ranks, and use sexual violence as a tool of intimidation and control. This generalized and pervasive threat of violence contributes to an increasingly dire reality for the citizens of these countries.”
Many Central American children and families are fleeing to the United States because of safety concerns and high poverty. The journey is risky, but for many of them, so is the prospect of staying home. Trump’s proposal would require these children to stay home and grant asylum to 15,000 minors at most from El Salvador, Guatemala and Honduras per year.
There’s a disconnect between Trump’s concern for child safety and what his proposal would mean for children. So, we’re going to outline six big changes his bill would make to the asylum system for Central American minors.
Trump’s plan to reopen the government comes with a sweeping rewrite of U.S. humanitarian laws. One of the biggest changes would reduce opportunities for Central American minors to obtain asylum. That could violate international law on protections for refugees, according to experts and pro-immigration groups.
Applying from home
Under current law, immigrants who fear persecution may apply for asylum in the United States, regardless of how they entered the country. Trump’s proposal — the “Central American Minors Protection Act of 2019” — would bar asylum claims by minors from El Salvador, Guatemala and Honduras who show up at the border.
These minors would have to apply for asylum while remaining in their home countries or another country. The total number of asylum grants for Guatemalan, Honduran and Salvadoran minors would be capped at 15,000 per year.
“This is a major change to asylum law that will block tens of thousands of children who are now showing up at our borders from ever getting protection,” said Greg Chen, director of government relations for the American Immigration Lawyers Association.
There’s no breakdown of how many Central American minors obtain asylum each year under current law, but it’s well known that tens of thousands such children are showing up at the border seeking entry. Nearly 58,600 unaccompanied children, and thousands more who came with family members, were encountered at the southern border in fiscal 2018, according to Customs and Border Protection data.
Immigration judges granted asylum to 20,524 individuals (both children and adults) from El Salvador, Guatemala and Honduras in fiscal 2018. That total doesn’t include unaccompanied children who obtained asylum through a separate process run by U.S. Citizenship and Immigration Services.
What would happen to Central American minors who showed up at the border anyway and requested asylum?
The United Nations Convention and Protocol Relating to the Status of Refugees says governments should not return refugees to the places where they face threats. “The principle of nonrefoulement is so fundamental that no reservations or derogations may be made to it,” the U.N. agreement says. “It provides that no one shall expel or return (‘refouler’) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.”
The U.N. protocol on refugees also says governments should not discriminate based on “country of origin,” but Trump wants carve-outs in the asylum laws for El Salvador, Guatemala and Honduras.
It’s possible that the Trump administration would grant a lesser form of asylum known as “withholding of removal” to Central American minors at the border. But that’s not in the text of the legislation, so it’s an open question for now, said Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council. Reichlin-Melnick said Trump’s proposal would invite legal challenges.
The Trump administration has said the U.N. refugee protocol is “not directly enforceable in U.S. law.” But it has noted that the U.S. government avoided refoulement issues in the past by using “withholding of removal,” according to a rule proposal submitted in November.
“These treaties are not directly enforceable in U.S. law, but some of the obligations they contain have been implemented through domestic implementing legislation,” the rule proposal says. “For example, the United States has implemented the non-refoulement provisions of these treaties — i.e., provisions prohibiting the return of an individual to a country where he or she would face persecution or torture — through the withholding of removal provisions.”
Representatives for the Senate sponsor of the legislation, Appropriations Committee Chairman Richard C. Shelby (R-Ala.), referred questions to the Trump administration. The White House did not respond to our questions.
Having a process to request asylum from outside the United States is not a new idea. What makes Trump’s proposal unique is that he would do this while simultaneously barring asylum claims from Central American children who present themselves in the United States. (According to the Daily Beast, Central American minors at the border would still be able to seek Special Immigrant Juvenile Status, but that system is already backlogged and requires children to “prove in family court that they were abandoned or abused by a parent.”)
Qualified parent or guardian
Under another change Trump wants, minors from El Salvador, Guatemala and Honduras seeking asylum would need to have “a qualified parent or guardian in the United States capable of taking custody and care of the minor upon arrival.”
That provision could bar many asylum claims. The bill does not define what it means to be a “qualified” parent or guardian. For context, border officials encountered 58,600 unaccompanied minors in fiscal 2018, most of them from Central America. In addition, thousands more Central American minors at the border were traveling with parents or legal guardians. There’s no breakdown, but the total for all children and adults encountered as family units was 161,113 in fiscal 2018.
The Trump bill says the secretary of Homeland Security may approve asylum applications for minors from El Salvador, Guatemala and Honduras “consistent with the national interest.” The term “national interest” is not defined in the bill and, as we’ve noted, neither the Senate sponsor nor the White House answered our questions.
Reichlin-Melnick said that under current law, Central American minors do not pay a fee to apply for asylum. “Asylum applications and refugee applications do not cost money, because people fleeing persecution often don’t flee with assets,” he said.
Trump’s bill would impose a fee to cover “the cost of processing the application” and also an “amount necessary to deter frivolous applications.” It’s unclear what this fee would total; the bill leaves those particulars to the secretary of Homeland Security.
Trump’s proposal would restrict opportunities for Central American minors to challenge the administration’s asylum decisions in court. The legislation says “no court or immigration judge shall have jurisdiction to review a determination of the Secretary of Homeland Security” on whether to grant asylum to minors from El Salvador, Guatemala and Honduras. Under current law, asylum decisions by executive branch officials can be appealed to the U.S. judicial branch up to the Supreme Court.
The Trump proposal would relax a key provision in the Trafficking Victims Protection Reauthorization Act (TVPRA), a law that gives safe harbor to victims of human trafficking.
As a provision of the TVPRA, unaccompanied children from noncontiguous countries such as El Salvador, Guatemala and Honduras remain in the United States while their cases are evaluated. Trump’s proposal would change that, allowing U.S. officials to return children from those three countries promptly unless an “immigration officer determines that it is more probable than not that the unaccompanied alien child will be trafficked on return to his or her country” or determines that the child could qualify for asylum.
The Bottom Line
Those worried for the safety of Central American children should keep in mind that many of them are in danger whether they journey to the United States or remain in Central America.
Trump says the humane solution is: Stay home, wait your turn. That turn might never come under the bill he’s proposing, since it’s loaded with new obstacles. What the bill does is put the problem at someone else’s door, using safety concerns as a fig leaf.
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