by Aliza Vaccher
When discussing migration flows, it is important to make the distinction between refugees and immigrants. A refugee , or forced migrant, has been forced to leave his or her home country due to a well-founded fear of persecution, and is unwilling or unable to return based on four distinct categories: race, religion, nationality, or membership in a particular social group. However, a migrant is any person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to this country. Legal protections differ for these groups as well. While migrants hold no special international legal protection, refugees may not be forced to return to their country of origin – otherwise known as refoulement. Non-refoulement is a tenet of customary international law, meaning every nation must oblige.
In the Central American context, we see a mixed migration flow, consisting of both forced and economic migrants. This complicates legal distinctions as well as protections. The dynamics of today’s politics surrounding flight from Central America are tied to Cold War policies of the 1980s, which limited the definition of ‘refugee’ to individuals from the Middle East or communist countries. The Reagan administration linked the fate of individual asylum seekers to these Cold War foreign policy interests. The U.S. government typically denied political asylum to Central American refugees, claiming that these individuals were fleeing economic conditions and generalized violence, rather than targeted political persecution; Central American asylum seekers struggled to establish that the violence they had experienced was exceptional in the ways anticipated by existing US asylum law. Fears of ‘the potentially unbounded immigration flow that could result from a highly inclusive interpretation of asylum law’ reinforced the exclusionary policies. We see these fears echoed to this day.
Today, much of the refugee flow from Central America stems from gang violence, and youth are disproportionately targeted. The Rodriguez* family, in a case detailed by UNHCR, knows this well:
“First it was 19-year-old Miguel, gunned down while returning from his night shift at a paper factory. Next came 18-year-old Gustavo, a promising footballer murdered by the same gang.And finally, 13-year-old Luis was thrown from a bus into traffic by gangsters. When threats came to their youngest son, Andrés, they knew their only choice was to run, taking nothing but the clothes on their backs”.
As a result, tens of thousands of unaccompanied minors as well as families have fled north, seeking asylum in the United States. The majority of refugees stem from the ‘Northern Triangle’ – Honduras, El Salvador, and Guatemala – a region that has been described as the most violent region in the world outside of conventional war zones. Because of the extreme circumstances faced by these refugee populations, special protections were put in place by the United States Government. CAM, the Central American Minors program, was instituted in 2014 by the Obama administration, and allowed vulnerable young people with parents in the United States to process their application in their home region and avoid taking the dangerous trip through Mexico to the U.S. border on their own. Prior to its termination, there was notable criticism that this program did not do enough to protect vulnerable populations. Temporary Protected Status, or TPS, currently allows over 200,000 El Salvadorans to live and work legally in the United States. While the program was originally instituted in 2001 following a pair of devastating earthquakes in El Salvador, gang violence was among the factors cited by the U.S. Government in 2016 when the program was renewed.
The Trump Administration recently ended both these programs. CAM is to be phased out during fiscal year 2018, with the reasoning that ‘the vast majority of individuals accessing the program were not eligible for refugee resettlement’. It is important to note that just because an individual does not qualify for resettlement, this does not mean that individual does not qualify as a refugee. Refugee resettlement is a highly selective process, and less than 1% of the worlds’ more than 22.5 million refugees are ever resettled. UNHCR identifies the most vulnerable cases to be referred for resettlement – refugees whose lives are in danger in their current host country. In addition, persons found to have committed serious crimes or who might pose a threat to others are not referred for resettlement. The government plans to focus on ‘more targeted’ refugee processing in Central America. It remains to be seen what this will entail in practice.
The administration also recently ended TPS protections for Salvadorans, stating that the original conditions caused by the earthquake in the early 2000s were no longer a limiting factor, as the infrastructure has been reconstructed. Salvadorans in the program have until September 2019 to ‘get their affairs in order’, after which they will no longer be allowed to legally remain in the United States. Regardless of the validity of this statement, this decision blatantly ignores the conditions that continue to drive a refugee flow from El Salvador – and the reasons why Salvadorans in the United States do not feel safe returning. Today’s policies continue the longstanding U.S. legacy of exclusionary policies regarding Salvadorans fleeing violence.
The migration flows from Central America are mixed – they contain both refugees as well as economic migrants. While some migrate for economic reasons, large numbers of people flee circumstances of legitimate well-founded fear – and often, these reasons become intertwined. As the Trump Administration ends protection for these groups, it is critical to remember legal obligations under international law.
For more information:
https://theintercept.com/2018/01/08/el-salvador-immigration-tps-trump/
https://www.migrationpolicy.org/article/central-americans-and-asylum-policy-reagan-era
DU Immigrant & Refugee Rights Colectivo 