Obama Administration Begins Raids of Recently Arrived Central Americans

On December 23rd, the Obama Administration announced the launch of enforcement operations against Central American families – typically young mothers with small children – as a response to the recent spike in arrivals from that violent region. Since September, the number of families and unaccompanied children arriving at the US-Mexico border has more than doubled, compared to the same time period in 2014.

US Department of Homeland Security (DHS) Secretary Jeh Johnson stated that the operations “should come as no surprise” and fall within the Administration’s enforcement priorities since the families being apprehended arrived after January 1, 2014, and were recent arrivals. Over the New Year’s weekend, Immigration and Custom Enforcement (ICE) agents apprehended 121 mothers and children, reportedly taking children out of bed in the middle of the night. As a result, Central American governments warned their citizens in the United States not to open their doors to ICE agents without a warrant.

Criticism of the Administration’s policies and tactics has been harsh, with the Congressional Hispanic Caucus, Latino and rights groups, faith-based organizations, and Democratic presidential candidates denouncing them. At least 146 House members have sent a letter to the White House opposing the raids and asking for temporary protected status (TPS) for the Northern Triangle countries of Central America.

Several questions arise from this policy. First, do the raids effectively deter others from fleeing violence and traveling to the United States? Second, have the families targeted received due process and exhausted all available legal remedies? Finally, has the Administration taken steps to ensure that those returned will be re-integrated and that their lives will not be in jeopardy?

As to the first question, the detention of families, the US-assisted Mexican government interdiction effort, and a public relations campaign to discourage migration – all part of the deterrence strategy – have failed to stem the flow of refugees from the region. Human smugglers, playing a cat-and-mouse game with US and Mexican enforcement authorities, have been able to circumvent enforcement efforts, increasing their profits in the process. It is unlikely that raids in the United States will deter mothers with small children from fleeing when their lives are at risk in their home countries.

Second, the US asylum system has proven ill-equipped to ensure that Central American refugees receive a fair adjudication of their claims. Only 47 percent of the families apprehended in the raids were represented by legal counsel in their proceedings, while a number had their right to appeal waived because they did not meet the 30-day time limit for the Board of Immigration Appeals (BIA) to receive an appeal. On January 5, 2016, the BIA granted twelve individuals from four families temporary relief from deportation because of an absence of due process in their cases.  An additional eight individuals were granted stays on Thursday, January 8, 2016.

Third, this practice may put the United States at risk of violating international law by returning bona fide refugees to their persecutors, a practice known as refoulement. At a minimum, the United States should work to ensure that any families or children returned are re-integrated in a manner that keeps them safe. The murder rate in the region has reached all-time levels, with El Salvador now rivaling Honduras as the most dangerous country in the world. As a result, many commentators have urged the Administration to reverse course and establish a response to this migration flow that comports with due process and humanitarian principles.

As a first step, a regional protection system should be established in Central America which would grant vulnerable families and children an opportunity to be screened for refugee status in a safe country in the region, out of harm’s way, and resettled to a safe third country in Central America or in the United States, if necessary. Such a system would give parents an alternative to handing their children over to unscrupulous smugglers and would allow families to avoid taking such a dangerous journey. It would also recognize that many migrants are, in fact, refugees, fleeing violence and persecution. The Administration will soon announce a new initiative establishing refugee processing in Central America.

Similarly, the Administration should invest some of the $750 million appropriated in the FY 2016 omnibus budget bill for the region in humane reintegration programs, job creation and training for youth, and economic development projects.

DHS should also pursue an alternative-to-detention (ATD) program that permits community groups to provide services to families, including finding legal representation. The current ATD program, which is operated by a for-profit company, is focused more on enforcement outcomes than ensuring that families have access to justice.

Finally, due process protections should be embedded in the US asylum system, including competent counsel and access to a fair asylum hearing. Without such protections, the United States risks returning women and children with valid asylum claims to harm and possibly death in violation of international law. In the meantime, the Administration should extend TPS for Guatemala and re-designate El Salvador and Honduras for TPS, which would protect these asylum-seekers from deportation.

Since the beginning of the large-scale migration flow from Central America in the spring of 2014, the Administration and Congress have been searching for a quick fix to the problem, where none exists. They have attempted to address the symptoms of the problem, not the causes. The endemic violence and lack of opportunity in the Northern triangle region of Central America will not be ended overnight. Until the situation in the region changes, it would be wise and humane for our nation to recognize this challenge as a refugee crisis and replace a policy of deterrence with one of protection.