People wait outside an aid center in Nogales, Mexico that serves people who have been recently deported to Mexico, November 11,
People wait outside an aid center in Nogales, Mexico that serves people who have been recently deported to Mexico, November 11, 2010.
Eric Thayer / Courtesy Reuters

This summer, as thousands of women and children fled El Salvador, Guatemala, Honduras, and Mexico for the United States, policymakers and pundits quarreled over the origins of, and solutions to, the crisis. One camp focused on the factors that pushed people from their homelands: pervasive violence, entrenched poverty, and the failure of comprehensive immigration reform to allow families living on opposite sides of the border to reunite legally. Another blamed those factors that pull people north: lax enforcement of immigration policies and the (erroneous) impression that newly arrived unaccompanied minors would be entitled to stay in the United States under President Barack Obama’s Deferred Action for Childhood Arrivals program.

The Obama administration, fearing the political fallout from being branded as too lenient on immigration, decided to send a clear message—that those crossing the southwestern border would be sent back home. For now, many of them still await processing by immigration officials. Women with young children have been detained for weeks, often in abysmal conditions. The flow of new migrants to the United States has since waned, but even as their plight fades from the headlines, lawyers continue to challenge the Obama administration’s aggressive detention and deportation policies as being in violation of international law.

Last month, Human Rights Watch issued a report documenting the deportation of vulnerable refugees back to Honduras, which is in the throes of what is arguably the worst human rights crisis in the hemisphere. In the aftermath of the 2009 coup that deposed Honduras’ democratically elected president, the homicide rate in Honduras is the highest in the world. Much of the violence is related to gangs and drug trafficking, but political repression is also rampant. Hundreds of journalists, lawyers, judges, land rights activists, indigenous leaders, human rights defenders, LGBT activists, and opposition leaders have been killed, and thousands more live in the shadow of intimidation and harassment. 

Honduran women and children have good reason to fear for their lives. Over the last eight years, the number of women killed there has increased by more than 260 percent. And the problem is regional. According to a United Nations report based on 404 interviews, nearly two-thirds of the children who fled from the Northern Triangle—El Salvador, Guatemala, and Honduras—and Mexico over the summer had been forcibly displaced from their own homes and were in need of international protection. Women are also at risk: the rate of femicide in all three Northern Triangle countries ranks among the highest in the world, and in July, the UN special rapporteur on violence against women found that gender-based violence in Honduras “is widespread and systematic.” The U.S. Board of Immigration Appeals recently recognized that Guatemala’s “culture of ‘machismo and family violence’” and near complete impunity for these crimes could render a woman eligible for asylum in the United States.

But instead of focusing on human rights and asylum, Washington has largely zeroed in on the short-term goal of securing its borders and removing migrants. As a result, despite the alarming conditions facing the vulnerable in Central America, the administration is in effect prejudging the migrants’ claims, making it difficult for them to avail themselves of the legal protections required by domestic and international law. The United States is bound by the 1951 UN Refugee Convention and its 1967 Protocol, the 1980 U.S. Refugee Act, passed to bring the United States into compliance with its international law obligations, the Convention Against Torture, and other laws. As a result, the United States is prohibited from refoulement—that is, returning refugees to a country where they face persecution.  

Immigration reform enacted in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), established measures to curtail illegal immigration, including an accelerated process of deportation termed “expedited removal,” although it grants exceptions for those who express a fear of persecution or torture in their home countries or an intent to apply for asylum. (There are also exceptions for unaccompanied minors arriving from countries that do not border the United States under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.) U.S. Customs and Border Protection are thus required to conduct an initial screening to determine whether a migrant might fit those requirements. Any person expressing fear is supposed to be referred for pre-asylum screening, called a “credible fear interview,” with an asylum officer, to determine if he or she is eligible to apply for asylum. If the asylum officer finds no credible fear, the noncitizen can request review. 

The recent Human Rights Watch report makes clear that the process of identifying those from Central America who are afraid to return to their home countries has been inadequate. In 2011 and 2012, U.S. Customs flagged only 1.9 percent of Hondurans for credible fear interviews, far below the 21 percent rate for other countries. The rates were also significantly lower for those fleeing El Salvador, Guatemala, and Mexico.

Advocates have criticized the conditions under which these screenings are conducted, claiming they are not conducive to trust and disclosure by those who have been traumatized in their home countries and have often been revictimized on their dangerous journey north. Amnesty International reported in 2010 that up to 60 percent of women and girls fleeing their countries via Mexico had been raped there, with many more migrants reporting violence, extortion, and fear. Interviews often occur in overcrowded rooms by harried uniformed officials who, migrants claim, seem less concerned with hearing one’s story than with hastening one’s return. 

Many of the Central American migrants interviewed by Human Rights Watch, including those still in detention facilities, reported that they were not even told of the right to protection and that when they did express a fear of returning to Honduras, they were not referred to an asylum officer. Some claimed they were actively discouraged from applying for asylum. Others reported that customs officers referred them to consular offices from their home countries, despite the fact that many were fleeing precisely because their governments could not or would not protect them. No wonder, then, that the chances of being referred for asylum interviews are incredibly low. In fact, they started to decline after a February 2014 update to the training materials issued to asylum officers.  Advocates claim the revised materials impermissibly raised the burden of proof required to establish credible fear. 

Perhaps recognizing the problems with the United States’ current asylum system, in September, the Obama administration announced that it would create processing centers in the Northern Triangle countries to take and review asylum claims for children before those children ever attempted to cross the border. Appropriately used, the centers could provide some relief for eligible applicants and deter some children from embarking on such a perilous journey. But critics point out the program’s limitations. First, in-country processing forces children to linger in the place where they face danger. Moreover, the program restricts the numbers of refugees it plans to accept from Latin America and the Caribbean to 4,000 (90,000 unaccompanied minors are expected to cross the Mexican border this year). Eligibility is restricted to children with at least one parent who is a legal immigrant in the United States. In addition, critics worry that the program will tacitly signal that the United States is relieved of other obligations to provide procedural and substantive protections to those arriving at its border.

Deficient U.S. asylum procedures are not the only problem. In a disappointing policy flip, the Obama administration has also reverted to harsher detention policies. In 2009, the administration had eased the rules of family detention, allowing families who established a credible fear and posed no security or flight risk to be released on bond while they waited for their day in immigration court, which can take many months. But the recent crisis prompted Obama to reverse course. Instead of releasing and monitoring families, the administration is building new facilities to warehouse them: in recent months, it has opened family detention facilities in Artesia, New Mexico, and Karnes County, Texas, and plans to open a new detention facility in Dilley, Texas, in November. Altogether, these will increase the administration’s detention capacity by almost 4,000 beds since May. Officials are using family detention to send a clear message to Central Americans: stay home.

Those facing deportation are further disadvantaged: they generally lack access to the legal advice necessary to navigate a complex and foreign immigration system. (Migrants have the right to representation, but not at the government’s expense.) None of the deportees that Human Rights Watch interviewed were represented in their interactions with U.S. officials. They often simply couldn’t afford legal advice. The limited availability of counsel for fast-track proceedings in the areas around detention facilities didn’t help. The Obama administration recently designated some funds—about $9 million—for attorneys to represent unaccompanied minors. The assistance will provide much-needed advice for an estimated 2,600 children over the next two years. But that won’t come close to ensuring that all vulnerable women and children receive adequate legal assistance. 

For now, these issues are back off the radar. Border crossings have slowed since the high point this summer. Observers attribute that to several factors, including stepped-up interdiction in Mexico, public information campaigns aimed at discouraging migrants, heightened awareness of harsh treatment of migrants in the United States, debunking of myths about the ease of obtaining legal status, less favorable weather conditions for the trek north, and a crackdown on human smuggling networks. 

At any rate, if the decrease in border crossers is the metric upon which Obama’s response to the crisis is judged, he has succeeded. The political pressure has tapered off as well. But the Hondurans who recounted their harrowing stories to Human Rights Watch—and scores like them—face grave danger. The perilous conditions that caused people to flee have not abated; little has been done to ameliorate the endemic violence and poverty that have compelled women and children to flee Central America and Mexico in record numbers since 2011, when the surge began. Easing the border crisis is thus a hollow victory, particularly since it comes at the cost of imperiling the lives of refugees the United States is bound to protect. 

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  • LAUREN CARASIK is Clinical Professor of Law and Director of the International Human Rights Clinic at Western New England University School of Law.
  • More By Lauren Carasik