As Central Americans from a migrant caravan made famous by President Donald Trump’s angry tweets begin entering the asylum process from the U.S. border, they face a complex legal battle that most who have tried in recent years from their countries have lost.
Just under 80 percent of the 15,667 asylum cases from El Salvador were denied between fiscal 2012 and fiscal 2017, according to the Transactional Records Access Clearinghouse, a project with Syracuse University that monitors immigration data through public records requests. About 78 percent of the 11,020 Honduran cases and about 75 percent of the 10,983 Guatemalan cases were denied.
Those trends could change as case law established in the last couple of years has helped more Central Americans show how their stories line up with requirements for asylum.
“There’s a steeper hill to climb, I think, in the Central American cases,” said Dana Leigh Marks, a spokeswoman with the National Association of Immigration Judges. “They involve cutting-edge legal arguments. The case law is still evolving. Whether it’s a liberal or a conservative trend, the reality is law is based on case precedent. The more precedent that builds and makes that principle clearer, the more established it’s going to be and the more consistent it’s going to be.”
Under asylum law, people seeking protection must show that they have been persecuted or have a well-founded fear that they will be persecuted because of their race, religion, nationality, political opinion or membership in a social group.
Being afraid of general violence or rampant crime is not enough to win a case.
Some Central Americans have more traditional cases under the race or political opinion categories, but most are fleeing gang violence or domestic violence. Such cases tend to require asylum seekers to show that the bad things that happened to them were because they are part of a particular social group.
More are winning their cases than before, according to Ginger Jacobs, an immigration attorney in San Diego, especially in the last two years.
Women who could show that they’re being targeted because they are women have a better chance of winning their cases, Jacobs explained. This could include women who were gang raped or victims of domestic violence.
People who can show they fear persecution because their family has been targeted also have a better chance of winning. Members of the LGBTQ community also have an easier time showing that they’re members of a targeted social group.
Judges have started understanding, Jacobs said, how gang violence is intertwined with governments in the Northern Triangle — Guatemala, El Salvador and Honduras.
Having an attorney makes a difference in how likely someone is to win a case, though how much depends on the country that an asylum seeker is from.
About 95 percent of asylum seekers from Honduras without attorneys lost their cases over the last six years, according to TRAC data. Just over 70 percent who had attorneys lost. People from El Salvador and Guatemala have similar spreads in the likelihood that they will win their cases.
For countries like China, having an attorney makes a more dramatic difference. Close to 79 percent of Chinese asylum seekers who didn’t have attorneys were denied protection over the last six years, according to TRAC data. For those who had lawyers, just under 18 percent lost their cases.
“What’s different from what a lot of Americans think about the law they have learned on television is that it’s not uncommon that the people applying for asylum have very little documentary evidence,” said Marks.
Having an attorney can especially help when someone doesn’t have much proof beyond his or her testimony, Marks explained.
“If somebody is represented, even if all they have is their word, they may be very successful in getting background documentation — newspaper articles, university reports on conditions in different countries — that help corroborate their claim indirectly,” said Marks. “Someone who is unrepresented is going to have a lot harder time showing that.”
Judges may be aware of additional information about the country, but deciding how much the judge should do to include that in the case record is a philosophical debate.
“Are you crossing the line and becoming an advocate?,” Marks said. “They’re not easy questions.”
“That’s why we say that immigration law is as complicated as tax law, and I think more so,” Marks added.
That complexity, Marks said, contributes to judges having different grant rates. (A TRAC report found that immigration judges from the same court often differ drastically. In San Francisco, where Marks hears cases, the highest grant rate is 97.1 percent and the lowest is 9.4 percent. In San Diego, the highest is 88.1 percent and the lowest is 46.2 percent.)
“Credible testimony alone can be sufficient if it’s consistent with country conditions,” she said. “That’s part of why grant or denial rate among different judges vary so much. It’s very hard to specifically pin down what is enough to meet your burden of proof.”
Matthew Holt, a San Diego immigration attorney, explained that he thinks about Central American cases as “gang plus,” meaning there’s gang violence involved plus the person has a characteristic or took some kind of action to make him or her part of a protected group that is targeted by the gangs.
“They were a witness in a prosecution. They were a witness in a murder. They filed a police report,” said Holt, giving examples that would help win asylum cases. “They participated in community- or religion-based gang amelioration efforts. They were family members to someone who fell out of the good will of the gang.”
He uses expert testimony to help judges understand country conditions to back up the stories of his clients.
“The Central Americans we’re seeing, they’re children, youth, young adults, lots of females and small business owners,” Holt said. “These are all these people that are trying to get ahead and they can’t because the gangs in Central America are murdering them.”
Two 2013 cases set precedents that have helped make cases for people who testified against gangs or worked to stop gang violence. Rocio Brenda Neriquez-Rivas witnessed gang members kill her father in El Salvador and testified against them. Then she fled to the U.S.
Courts at first denied her asylum claim, but a Ninth Circuit decision found that someone who testified against a gang in court counts as a member of a social group.
Victor Hugo Tapia Madrigal was a Mexican army veteran who had combated drug activity during his time in service. Though threats from gangs while doing the work could be considered a known risk of the job, Tapia Madrigal received death threats after he left the Army.
Though courts at first denied his claim as well, the Ninth Circuit ruled that “former Mexican army soldiers who participated in anti-drug activity” was a particular social group and one that was at least one of the central reasons for his persecution.
Holt said attorneys and asylum seekers have to keep fighting to make case law that protects the vulnerable though he worried that the process would be too slow for many currently fleeing harm.
Not everyone who loses their asylum case is deported from the U.S. Many apply simultaneously for protection under the Convention Against Torture and withholding of removal, options that allow the person to stay in the U.S. but do not allow that person to get a green card, travel outside the country and return, sponsor family members or naturalize.
Less than two percent of Convention Against Torture applications were granted in fiscal 2016, according to data from the Executive Office for Immigration Review. About seven percent of withholding cases were granted that year.
Jacobs said she’s seen more judges willing to grant these protections to Central Americans in the last two years as well.
Asylum case law will continue to evolve based on the conditions that people are fleeing, Marks said.
“Asylum has to be a living area of the law,” she said. “Unfortunately, man’s ingenuity on who we choose to hate and how we choose to harm people continues to change.”
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