Point of No Return: The Fear and Criminalization of Central American Refugees

EXECUTIVE SUMMARY

Background

The purpose of this study was to ascertain the challenges faced by Central American migrants who returned home after failing to gain asylum or other international protection in the United States or Mexico. Cristosal interviewed individuals who fled from El Salvador, Guatemala, and Honduras under threats of violence and persecution and had been deported back to their country of origin to determine why they fled their homelands, why they could not secure asylum, and on their situations post-return. In the context of mass migration from these countries, the study used indepth interviews to understand the different ways in which people experienced the violence and fear that forced them to flee and how their responses upon “voluntary return” or deportation back to their country of origin were shaped by that same violence.

While there are many studies on the flight of persons from the Northern Triangle of Central America (NTCA), little is known about the experience of refugees who cannot secure protection in another country and are deported to their home country, from which they originally fled. What are the psychosocial, security, and human rights consequences for people who migrated out of fear for their lives and were then forced to return to the situation that forced them to flee?

Findings

While each person interviewed has a unique story, there are several commonalities in the narratives of the migrants interviewed for this study (“participants” or “interviewees”). These point to a failure in the international system of protection, especially as it applies to the international obligations of transit and receiving states and the national obligations of the sending countries. As a result, the refugees interviewed could not rely upon any of these states to protect them from violence. In addition, they experienced violence from gangs, public officials, smugglers, and drug traffickers. In the absence of state protection, they were forced to rely on protection from a network of family members in both the sending and receiving countries. The study found that:

• Specific acts of violence, rather than the generalized violence endemic in the Northern Triangle states, precipitated flight in search of protection. Most participants expressed feelings of fleeing as a “last resort,” as they left behind jobs, family, friends, homes, and culture in order to seek protection.
• The majority of interviewees had themselves been victims of violence or had family members who had been victims. Some had a family member who had been killed by gangs in their stead or “in place” of them.
• Half of the interviewees had been displaced internally before deciding to leave the country. Upon their return to the circumstances they fled, they relied on their families for shelter, support, and a modicum of protection, not the government.
• No one interviewed indicated that they expected protection from the US government, although all needed it. Their lack of understanding of the law and the inability of their families to protect them in transit and upon arrival in the United States prompted some to make decisions to “voluntarily” return, without full knowledge of their rights.
• Several participants opted not to report their fear and victimization to the local authorities before they left, for fear that corrupt officials would inform gang members or because they left quickly in fear of violence or death from the gangs. Even individuals who were in victim/ witness protection were at risk due to the failures of those programs.
• Except Hondurans, all interviewees traveled with coyotes in very dangerous conditions, not trusting authorities. Several reported on dangers posed by coyotes, including sexual harassment, assault, and risks related to the smugglers’ drug consumption. No one expressed a full understanding of their internationally recognized right to seek asylum, nor did they understand themselves to be refugees.
• Former detainees reported that in US detention facilities they had been treated like criminals, often handcuffed at the hands, waist, and feet, and kept in holding cells under conditions that some described as inhumane. Although detention should never be used as a deterrent to seeking asylum, some reported that detention dissuaded them from seeking protection in the United States and Mexico. • Some of the interviewees did not pursue asylum due to the belief that a lack of evidence (beyond their own testimony) at the time of apprehension meant they had no case or that they would have to present legally admissible evidence at the time of their detention. Some, including trafficking victims and former gang members fleeing retribution, feared that the United States would prosecute them rather than protect them.
• Many factors cast doubt on the voluntary nature of those deemed to have “voluntarily’ returned to their countries of birth. Immigration officials, for example, told some interviewees that they could not stay with or be reunited with their families in the United States and that their fear was not “credible” before a credible fear interview. Some were coerced into signing documents without full knowledge of their rights and without an attorney present.
• In some cases, participants were told that they could seek asylum, but their lack of legal representation made pursuing, much less prevailing in an asylum claim a remote possibility. Some interviewees, including persons seeking international protection who were transgender and gay, reported sexual abuse and assault.
• All reported being handcuffed and shackled and treated with hostility during the deportation process. All continue to live in fear in their home countries, remain displaced, and most have not returned to their local communities for fear of reprisals. The government has not protected them upon their return, causing some cases to flee multiple times.
• Interviewees reported that reintegration in countries of origin were often unsuccessful because of the persistence of threats and persecution upon return and the inability of NTCA governments to guarantee access to justice and the full exercise of rights.
• Because of lack of confidence and fear of national authorities, many interviewees sought protection through subsequent attempts at emigration and internal displacement, resorting to family networks to evade persecutors and reintegrate into their countries of origin, while often accepting conditions that seriously restrict their personal freedoms.
• Subsequent to “voluntary return” or deportation, interviewees reported threats to their lives and physical integrity and suffered restrictions on their personal freedoms that raise serious concerns that the deportation policies of the United States and Mexico violate the well established principle of non-refoulment.

Policy Recommendations

Given the findings from our interviews, we offer the following policy recommendations to address the protection gaps for persons fleeing violence in the Northern Triangle. Although these recommendations largely track those already offered during this debate, they have either not been adopted by the United States and Mexico or have not been implemented. We also note that deterrence strategies and messaging continue to define the US government’s response to the crisis of violence in the Northern Triangle states, including threatening to separate mothers from their children, which effectively denies refugees the right to apply for international protection.

Central Americans who arrive at the US border should be provided with a know-your-rights briefing by nonprofit legal experts and access to legal representation prior to their credible fear interview. As the interviews confirmed, Central Americans from the Northern Triangle states are unfamiliar with the asylum process when they arrive at the US border and are not fully cognizant of their rights. They can be susceptible to intimidation and may not be fully informed of the process for asking for asylum, leaving them vulnerable to deportation without full due process. Moreover, they are traumatized and may not be fully able to comprehend the process. Refoulement does not require that a person is returned to actual harm, but to an environment in which his or her basic liberties are restricted to avoid that harm.

Alternatives to detention should be offered to persons found to have a credible fear of return. Those who pass a credible fear interview should be released to local community groups that can provide them with services, including mental health care, and obtain legal representation for them. Detention blocks them from obtaining this assistance. Supervised release, in turn, prevents them from suffering abuse at the hands of detention officials, a problem detailed in some of the testimonies. Detention should only be used if a person is a flight risk or (in rare cases) a threat to the community, with justification from US Department of Homeland Security (DHS) as to why a person is being held and why other, less burdensome options cannot reasonably satisfy these goals.

Deterrence policies should be replaced with protection programs in countries of origin, transit and asylum. Successive administrations have deployed deterrence policies that inhibit a refugee’s ability to reach safety and protection. The United States and Mexico, along with other countries in the region, should expand protection programs, such as the Central American Minors (CAM) Program and in-country processing through Costa Rica. Mexico should expand its capacity to accept asylum-seekers and limit its use of detention, although many experienced persecution in Mexico and expressed fear of staying in Mexico. Protection programs should include alternatives to asylum, such as humanitarian visas for cases that are not determined to be eligible for refugee protection but have protection needs. Expansion of responsibility-sharing programs like the Protection Transfer Agreement (PTA) to include other countries as resettlement sites would also offer further alternatives for those in need of protection. The United States, Mexico, and Central American governments, pursuant to the San Jose Action Statement, should establish a comprehensive refugee response program in the region.

A comprehensive return program should be created which helps deportees and other returnees find employment and receive protection. The US and Mexico, in conjunction with nations of the Northern Triangle, should launch a safe return program that helps those deported receive protection, access to justice and integrated social services including employment, housing, education, and health services. Current programs are insufficient to ensure that those returned are safe and have a future in their home countries.

The United States and other nations should assist nations of the Northern Triangle to address the root causes of flight. Funding should be provided to assist with evidence-based violence prevention, strong and accessible protection programs which include access to justice, and resettlement programs. Non-government organizations should be funded to test these programs and, if successful, to offer evidence for government expansion of the programs. A re-designation of temporary protected status (TPS) to El Salvador and Honduras and the designation of Guatemala would help stabilize and increase remittances to the area.

Nations of origin, transit, and destination should adopt a rights-based, comprehensive policy of protection. Central American countries, Mexico, and the United States should approach persons fleeing from violence in the Northern Triangle as asylum seekers and not as criminals. Anti-immigrant rhetoric and fear tactics effectively deny persons their international right to protection.

Vulnerable refugees should be given special consideration and protection. Vulnerable populations, including unaccompanied alien minors and LGBTQ persons, should be given protection that corresponds to their vulnerabilities, including protection from abuse and assault, access to due process, and placement in the least restrictive and safest situations.

US Citizenship and Immigration Services (USCIS) should adopt the 2016 UNHCR guidance on assessing the international protection needs of asylum seekers from El Salvador for eligibility determination interviews of Northern Triangle asylum claims. The adoption of the 2016 UNHCR guidance will strengthen adherence the 1951 refugee convention standards in refugee determination processes stemming from the situation of nonconventional violence and the diversity of violent actors generating displacement in NTCA.

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