Inaccessible? Untangling the current U.S. refugee program

Sonal Marwah Forced Displacement and Migration, Ploughshares Monitor

Until recently, the United States was the world’s most generous donor of humanitarian assistance to displaced persons and had the largest resettlement program. But the Trump administration’s new immigration policies appear to be making the United States increasingly less safe and inaccessible for refugees and asylum seekers.

Published in The Ploughshares Monitor Volume 39 Issue 3 Autumn 2018 by Sonal Marwah

All of this is happening in Canada’s backyard. One direct effect is an escalation in irregular border crossings from the United States into Canada. On the border between the United States and Canada, for the period January-June 2018, there were 10,744 interceptions (refugee claimants apprehended between the official ports of entry) of people trying to get into Canada. In 2017, 20,000 people made irregular crossings into Canada to claim asylum.

As Canadian policymakers, civil society organizations, and immigration attorneys scramble to navigate the new and frequently altering immigration landscape to the south of us, it is worth placing some key elements of the current refugee program in the United States in context.

Slashing the U.S. refugee resettlement cap

The Trump administration has capped the resettlement of refugees at 45,000 refugees for FY2018, a decrease from the previous year’s total of 53,700. This is the lowest cap since the passing of the Refugee Act of 1980, which created the Federal Refugee Resettlement Program. During the last year of the Obama administration, the cap was 110,000.

Only about 20,000 refugees are expected to arrive in FY2018, which ends September 30.

Criminal prosecution of people who seek refuge

Both the Bush and Obama administrations detained families that made unauthorized crossings at the U.S.-Mexico border. So, President Trump is not the first president to detain families. The difference is in scale.

On January 25, 2017 President Trump issued two Executive Orders; the net effect was to impose greater burdens on undocumented immigrants, refugees, and asylum seekers.

In April 2018, Attorney General Jeff Sessions announced a zero-tolerance policy on adults deemed to have entered the United States irregularly from Mexico. Under this policy, anyone without prior authorization to enter the United States is arrested by the U.S. Border Patrol, charged with unauthorized entry, referred to the Department of Justice for prosecution, and placed in detention.

Adults are treated as criminals, while their children are labeled “unaccompanied minors,” and placed in the care of Health and Human Services’ Office of Refugee Resettlement. Approximately 3,000 children, including 102 under the age of five, have been separated from parents.

Under intense domestic and international pressure, on June 20, Trump issued an Executive Order that ended family separations. But reuniting families has been difficult and expensive. In some cases, parents have already been deported. Other parents are not eligible to be reunited with their children.

Refugee claimants who present at the border are considered “arriving aliens” and are subject to the Department of Homeland Security for “parole” determinations. However, there is evidence that some border officials are turning people away, stopping them from even setting foot in the United States.

Rolling back protections for women refugees

According to the United Nations, a refugee is someone who has been forced to flee his or her country because of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group.

The U.S. interpretation of the term “refugee” is narrower than international standards, including Canada’s. It is also more contentious, with groups unable to agree, for decades, on what constitutes a “particular social group.”

Still, according to the Center for Gender and Refugee Studies, in recent years, women fleeing gender-based violence have been able to obtain asylum in the United States by claiming persecution as members of a “particular social group.” Such cases have succeeded when they have demonstrated that the applicant’s country was unable or unwilling to offer them protection.

However, this past June, Attorney General Jeff Sessions reversed an immigration appeals court ruling in the case Matter of A-B-, seeking to narrow the legal basis for a credible fear of persecution needed to make an asylum claim.

Ms. A-B- arrived in the United States from El Salvador seeking asylum. A victim of extreme spousal abuse, she had first made many unsuccessful attempts to secure protection from the Salvadoran authorities before she decided to flee the country. Her asylum case was sent to the Charlotte Immigration Court, where her claim was rejected.

Ms. A-B- then appealed her case to the Board of Immigration Appeals, which unanimously found that her claim met the requirements for asylum. The case was returned to the judge who was to grant her asylum, in accordance with their decision.
Attorney General Sessions unilaterally decided to adjudicate the case himself. He determined that private activity is not grounds for asylum, including in cases of domestic violence. This interpretation goes against advisory opinions from the UN Refugee Agency that victims of domestic violence are potentially members of a “particular social group.”

The regional context

Why so many Central American asylum seekers?

Between 2011 and 2016, 161,742 people from Central America’s northern triangle —El Salvador, Guatemala, and Honduras—applied for asylum in the United States and other countries in the region. Forced internal displacement also appears to be widespread, although data is fragmented.

They were fleeing

  • some of the world’s highest rates of homicide for countries not at war
  • gang violence or forced recruitment
  • crime
  • poverty
  • domestic abuse and gender-based violence
  • a police force they distrusted and feared.

Governments at home were either unwilling or unable to protect their most vulnerable citizens.

The international context

The 1951 Refugee Convention

Article 31 of the Convention relating to the Status of Refugees prohibits penalizing refugees for unlawful entry or presence. It acknowledges that desperate people sometimes take desperate measures. Prosecuting asylum seekers for irregular entry before determining if they are entitled to asylum violates this Convention. By detaining migrant families, the United States is subverting its treaty obligations.

The rights of children

According to the United Nations High Commissioner for Human Rights, a policy of separating children from their families “amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child.”
International instruments, including the 1989 Convention on the Rights of the Child mandate that states act in the “best interest of the child.” Specific Convention provisions address the rights of children to be with their parents and family:

  • Article 7 – the right to know and be cared for by one’s parent
  • Article 8 – the right to family relations without interference
  • Article 9 – bans separation of parents from children except when it is necessary to ensure the best interest of the child.

The United States, the only country in the world NOT to ratify this Convention, is separating children from their parents as a deterrent and punishment; such an action is incompatible with the “best interest of the child.” The policy is having devastating effects on children and parents.

The UN High Commissioner for Human Rights has also called on the United States to stop family separation because children should never be detained for reasons related to their migration status or that of their parents.

Spread the Word