The Case for Salvadorean Asylum: Immigration, History, and Violence
They left my sister in a garbage bag all cut up. My mom found it at our front door. That’s when we knew we had to leave. — Cedric, age 15
Cedric was a student in my English class. Originally from El Salvador, he and his family fled to the United States when he was ten, after his seventeen-year-old sister was brutally murdered. He told me that his family had been terrorized by gang members for years and that there was constant pressure for him to join the gang, to sell drugs and commit other crimes, to turn over his parents’ hard-earned money. He said that he cannot remember a time in which he and his sisters ever felt safe, that all around them was a war zone, “Like a movie, you know?” His parents did what they could to protect their children, but because the country is dominated by gangs, that proved to be an impossible task. The family left for the United States soon after Cedric’s sister’s murder and entered the country without authorization. They have lived here for five years. Cedric’s father will never forgive himself for his daughter’s murder. Recent events have caused his mother great anxiety because she knows if they are deported, they will all be killed.
Merriam-Webster defines “asylum” as “protection given by a government to someone who has left another country in order to escape being harmed.” People who seek asylum meet the definition of “refugee,” which the INA § 101(a)15P defines as people who are unable or unwilling to return to the country of their origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” although they have not yet been assigned official refugee status. People like Cedric and his family would seem to meet the definition: they were targeted by gang members for being poor and for having young sons and daughters. Poor young men are forcibly recruited into gang membership and poor young women are forced to be “girlfriends” of one or more gang members. The violence against young women, a group we consider a protected minority in our country, is particularly prevalent. Gangs and gang violence rule El Salvador; picking up and moving to escape the threat would achieve little even if the family could come up with the money.
Yet on June 11, 2018, the United States Attorney General Jeff Sessions overruled a Board of Immigration Appeals decision that had granted asylum to a woman from El Salvador who was fleeing her abusive husband and wrote:
“The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.” (emphasis added)
This would seem to be at odds with the original law. However, it is the job of the credible fear hearing officer and immigration court to listen to the evidence and testimony of people claiming asylum. In other words, the United States is a nation of laws that has an established due process by which people can officially and legally claim asylum.
What happens when due process is suspended for “people trying to cross the border illegally” as the president calls for in his Twitter policy statements? Under INA § 208(a), people apply for asylum while physically present in the United States or arriving at a designated point of entry or checkpoint. Without due process and the rule of law, non-U.S. citizens crossing the border “illegally” would not even have the opportunity to claim asylum. Without any legal proceeding, they would be arrested, detained, and deported. The president feels that asylum proceedings take “too long” and that the backlog of deportation cases has overwhelmed the system. As of March 2018, there were more than 318,000 affirmative asylum applications pending. There are 690,000 open deportation cases pending, averaging about 718 days in the system so far and still remaining unresolved. Individuals with an immigration court case who were ultimately granted relief waited an average of 1,000 days for a decision. (Sources: Department of Homeland Security, American Immigration Council, Migration Policy Institute).
How bad is the situation in El Salvador? Could this be the story of one family and their unfortunate experience? According to US government statistics, the top ten asylum grantee countries for 2016 were:
El Salvador 11%
Something about the conditions in the country have prompted so many people from El Salvador to seek and to be granted asylum here.
In the same year (2016), a total of 20,455 people were granted asylum, 11,729 affirmatively and 8,726 defensively. Affirmative asylum applications are made when a person is already in the United States and cannot be made if one is in removal proceedings. However, defensive asylum applications are made when a person is already in the United States and is using asylum as a defense against removal in an official USCIS hearing. Look at those numbers again. Over 8,500 applications for asylum were granted after removal proceedings had been initiated. As discussed above, all of the applications for asylum must take place when an individual is in the country or at a point of entry. If the government goes rogue and suspends due process, then there will be no way for people from El Salvador (as an example) to even claim asylum. If people are already here and considering applying for asylum, they could be removed immediately once the government becomes aware of their presence.
It is true that Cedric and his family have been in the United States far past the one year mark of their entry into the country, the usual time deadline given to asylum cases. However, there are so many more Cedrics coming from places like El Salvador, taking unimaginable risks to have a chance at asylum status. There are so many more people fleeing the very same conditions that Cedric and his family fled. There are so many more of Cedric’s sisters that deserve a chance to claim asylum in the United States before they end up brutally attacked and murdered. Surely these conditions deserve consideration by a credible fear hearing officer. With the suspension of due process, that opportunity will never present itself.
Those people familiar with United States history will recall that the MS13 gang in El Salvador has its origins in the barrios of Los Angeles. Young men fled the civil war in El Salvador in the 1980s and settled in the only places they could afford, places already segregated by race, poverty, and violence. Young people steeped in the violence of the civil war formed their own support network to survive in an area dominated by Latino gangs already. It is likely that because they did not have trauma counseling or other ways to process what they witnessed and experienced, they turned to violence themselves. The narrative is a familiar one. In the 1990s, many of the original gang members were deported, and gang life became an export product. Offshoots of MS13 took root in multiple Central American countries. Through the illegal US drug trade and alliance with the Sinaloa Cartel in Mexico, MS13 grew in wealth and power.
It is difficult to imagine the rise of MS13 without U.S. support. During the civil war in El Salvador, the United States sent military advisors to help the Salvadorean military fight its own civilians. It also sent hundreds of millions in economic and military aid out of fear of a left-wing government, a familiar theme in this country’s history. The Salvadorean government did not have the funds or resources to continue such a protracted war against its own citizens and could only continue its efforts because of outside help. The result? Over 75,000 civilians lost their lives from 1980 to 1992 (when the official peace treaty was signed). 85% of the killings, kidnappings, and torture were the work of government forces such as paramilitaries, death squads, and U.S.-trained army units. This is not speculation or conspiracy theory. This comes straight out of the United Nations Truth Commission. During the El Mozote Massacre, U.S.-trained Atlacatl Battalion members killed over 700 men, women, and children. While the government initially dismissed this as propaganda, declassified U.S. documents confirmed the details of the massacre. It would seem that the United States has an ethical obligation to consider Salvadorean requests for asylum.
Every immigrant who enters or attempts to enter this country has a unique story that deserves to be hold. This country also has a tradition of due process which provides a balance of power and protects people from acts of the government that might offend the rule of law. Supreme Court Justice Oliver Wendell Holmes wrote, “Whatever disagreement there may be as to the scope of the phrase ‘due process of law’ there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard.” It is true that this country has a long history of injustices against citizens and non-citizens alike, but it is the idea of the American values of fair trial, opportunity to be heard, and due process that drives us to be better than the previous version of ourselves. What is the harm being done to our fellow human beings and to our country by allowing the events of the past two months to destroy our most sacred American values?