By Michael Byrne
Introduction
In 2014, surging gang violence and deteriorating economic conditions in Central America led to what media outlets labeled a “child-migrant crisis.” (Lind). From fiscal year 2013 to 2014, apprehensions of unaccompanied minor children at the southwest U.S. border rose roughly 80 percent, as nearly 70,000 unaccompanied children were detained by U.S. Customs and Border Patrol (CBP).(CBP FY 2014). Seventy-five percent of those children were from El Salvador, Guatemala, or Honduras, a region known as the “Northern Triangle”. (Id.).
Recognizing the exceptionally perilous journey unaccompanied children face trying to reach the United States from this region, the Obama administration instituted the Central American Minors Program (CAM) in 2014. (NIF Fact Sheet). The program targeted children in the Northern Triangle who were at risk of persecution and had parents lawfully present in the United States. (KIND Thwarted Potential). Children who could establish refugee status would be recommended for admission to the United States as refugees. (Id.). Those who could not demonstrate refugee status, but who the Department of Homeland Security (“DHS”) determined to be “at risk of harm” in their home country were recommended for parole into the United States, conditional on background vetting. (NIF Fact Sheet). Children granted refugee status or parole would then be able to make the journey to the United States directly via airplane. As a result, thousands of children were able to avoid the perilous journey of traveling over land – and alone – to request asylum at the Southern U.S. border.
Background
CAM’s underlying purpose can only be understood in light of the nature of the dangerous journey from Central America to the United States. The United States’ long history of heavy-handed economic and military involvement in the region provides additional context to the migratory pressures that drive individuals and families to follow perilous migration routes to the United States.
Children migrating from the Northern Triangle to the United States face innumerable risks, among them are the dangers of the journey itself, predation from gangs along the way, and indifference from governments. While Central Americans migrating to the United States face danger throughout their journey, traveling through Mexico is particularly dangerous. (Luiselli).
Central American individuals traveling through Mexico, especially unaccompanied children, are targeted for victimization and extortion. An estimated 80 percent of women and girls who travel through Mexico to reach the US border are raped along the way. (Id.). In the span of just six months in 2010, more than 11,000 immigrants were kidnapped. During 2006 to 2016, an estimated 120,000 migrants disappeared while traveling through Mexico. (Id.).
Doctors Without Borders estimated that in just one month alone, an estimated eighty percent of migrants traveling through Mexico had been abducted by organized criminals. (Vulliamy). Forty-five percent of migrants forced to remain in Nuevo Laredo as a result of MPP suffered violence or rape. (Id.). Migrants, as a result, are forced into crammed, unsanitary “shelters,” often locked in under padlock and chain. Organized criminals act with impunity; government security forces have shown limited interest in addressing predation of migrants, even labeling the reports “rumors.” (Id.).
Stunted economic development in the Northern Triangle region is attributable to “deep-rooted violence” in the region, which itself is a result of “[d]ecades of civil war and political instability.” (Cheatham). U.S. intervention in the region, especially during the Cold War, greatly contributed to these underlying conditions of violence. (Farah; Kazdin; Shesgreen). A distinguished fellow at the Economic Policy Institute noted, “[t]he decades-long history of American intervention has left Central American governments weak and fragile, while empowering oligarchs and drug cartels, which has, in turn, fueled the corruption and gang violence that drives residents to flee.” (Shesgreen).
The United States’ shared responsibility for conditions underlying emigration from the Northern Triangle is not limited to the consequences of direct intervention. For decades, U.S. domestic policy has indirectly contributed to the destabilization of the Northern Triangle.
Mass incarceration in the United States facilitated the rapid growth of gangs within the U.S. (Ernst). Harsh immigration policies like automatic deportation for even non-violent offenses, like shoplifting, resulted in the exportation of these gangs – like MS-13 and Barrio 18 – abroad. (Pedneault). Lax U.S. gun control policy means cheap, easily accessible U.S. weapons flood Mexico and Central America.(Grillo). The result is criminal organizations armed with military-grade weaponry, which seriously challenges governmental control of entire cities. (VICE World News). In the Northern Triangle is that U.S.-origin weapons of war fuel devastating violence between U.S.-origin gangs, which were made strong by U.S. domestic policy. This issue is so grave that Mexico initiated suit against gun manufacturers in U.S. federal court. (Pedneault).
Analysis
It is especially urgent that the United States make urgent reforms to CAM. A century of direct intervention by the U.S, as well as indirect consequences of U.S. domestic policy, underly migratory pressures in the Northern Triangle. This historical background generates an enhanced moral responsibility of the United States to alleviate human suffering in the region. Reforming CAM is one important step towards meeting this enhanced responsibility. Lessons from the implementation of Deferred Action for Childhood Arrivals (DACA) program, discussed in conclusion, should guide these reforms.
To meet its enhanced responsibility, the United States should make reforms to CAM with two primary goals in mind: the protection of children, and the reunification of families. (Greenberg). Serving these goals will require reforms to policy, as well as increased funding for program infrastructure abroad. Finally, lessons from the implementation of the DACA program affirm that, if feasible, these reforms should be codified legislatively rather than rely on executive action.
To serve both goals of protecting children and family reunification, at a minimum, CAM eligibility should be expanded to include refugee children with adult caretakers currently present in the United States, regardless of the caretaker’s immigration status. Children who qualify for CAM prove they are in danger in their country of nationality. Whether children should be spared from harm should not depend on their caretaker’s formal immigration status. This is especially important when there are limited avenues to legal status. For example, some parents of otherwise qualifying children may be barred from receiving legal status in the U.S. due to convictions for non-violent offenses.
Another important policy reform is recognition of fear from persecution by gangs as presumptive grounds for granting refugee or asylee status. (KIND Thwarted Potential). Doing this would more accurately reflect the nature of the gangs in the Northern Triangle which act with impunity, at times, even as de-facto governments. This reform would make it more likely children applying for CAM are granted the necessary refugee designation. It would also open more avenues for legal immigration status for CAM applicant’s parents who previously did not qualify for the legal immigration status and protection afforded by asylum.
As a final suggested policy reform, children applying for CAM should be granted access to free legal counsel throughout their entire application process. Children are five times more likely to be granted asylum when assisted by a lawyer. (KIND Policy Brief). The USCIS ombudsman observed that “children from [the Northern Triangle] have become so accustomed to violence that they might not notify the USCIS representative of dangerous situations…relevant to their claims for refugee protection.” (Greenberg). Children are more likely to be protected from danger, and families more likely to be reunified, of CAM applicants are granted access to free legal counsel through the application process.
Funding should be made available to improve CAM’s physical infrastructure abroad. Doing so would more accurately reflect the reality of the dangers refugee children applying for CAM face. Processing offices and interview locations should be increased, with agents traveling as necessary to serve rural populations. As it currently exists, CAM requires children to travel to processing offices which are generally located in capital cities. (Greenberg; Kind Policy Brief). The requisite travel – which often takes place at night – is especially for dangerous for those children facing persecution or danger. Shelter locations should be established – or existing ones leveraged – near interview sites and processing offices so children could, at least temporarily, be protected from danger while waiting for approval of their travel plans to the U.S.
Conclusion
Lessons from the implementation of the DACA program should guide immigration reform in the future, and CAM is no exception. One important lesson from DACA is the danger of relying on the executive branch for important immigration reforms. Although the Obama Administration’s implementation of the DACA program was indeed a legitimate exercise of executive authority, (Fandl) it was ultimately disrupted by the following administration. (PBS). While conservative state attorneys general argued the program overreached executive authority, the U.S. Supreme Court blocked the Trump Administration’s the total recission of the program. (NILC Alert).
Although DACA was ultimately reinstated by the Biden Administration, nearly one million individuals who were DACA recipients were left in legal limbo following the prior administration’s attempt at terminating the program and resulting legal battle.
While it is undeniably more difficult to pass legislation through Congress than simply rely on executive action, advocates must keep in mind the uniquely human nature of immigration. Executive actions are best suited for setting the parameters of broad policies (e.g. setting environmental standard parameters, rates of pay, or levying sanctions). Presidential administrations with opposing priorities can play ping-pong with these policies, allowing parameters to fluctuate with arguably minimal human impact as administrations come and go.
However, such fluctuation in not acceptable in issues with marked human impact, like immigration. Individuals, families, and communities need certainty. From a human perspective, the unnecessary suffering caused by DACA’s recission shows that immigration reform should be rooted in the legislative branch, if at all possible. Indeed, the story with DACA is not unique. The Trump administration halted CAM for a period of time, which was later reimplemented and expanded by the Biden administration. The need to codify reforms to CAM is thus especially urgent.
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