Photo of woman and child in Honduras by U.S. Air Force Tech. Sgt. Mike Hammond

UN Agencies Back Asylum Rights of Central American Migrants in Exodus to US

By Cecilia Menjívar and Shannon Drysdale Walsh | November 5, 2018

“If you have any dignity, you will get out of here” – The Salvadoran police telling Ms. A.B. that she should leave her aggressor, instead of helping protect her from him.

Migrants from Guatemala and El Salvador, but mostly from Honduras, have been traveling north in large groups, referred to as “caravans.” They do so to protect themselves from the harrowing dangers of this journey, not with the purpose of “invading” the United States, as some politicians and pundits have argued. Nor are they the criminals or terrorists that President Trump has claimed, a framing that has prompted him to contemplate sending as many as 5,000 troops to the southern US border to “secure” it. Cubans during the Mariel boatlift in the 1980s and Haitians in the early 1990s, in fact, arrived in much larger numbers than the estimated 3500 Central Americans continuing their travels. Exaggerated media attention and politicians’ negative framing creates panic and hysteria among a public already primed to associate Latinos with criminality and illegality.

The politicization of the migrants’ journey has obfuscated the far more serious humanitarian crisis unfolding at the Southern border. Central Americans are arriving to seek protection from entrenched forms of violence and deep inequalities in their countries.

As the images of the women, many carrying children, in the caravan hint at, it is a humanitarian crisis that affects women and girls especially.

Gender Violence Drives Migration

While violence against women and girls is widespread worldwide, Guatemala, Honduras, and El Salvador have extraordinarily high levels, paired with legal and justice systems that have repeatedly failed to protect them. A confluence of state, institutional, every day, and intimate violence pave the way for the ultimate form of violence against women—their deaths in what is called feminicide.

This violence is normalized and internalized. In our research interviews with women in Guatemala about their experience with domestic violence, a typical response was: “This is how it is here, what can I do?” We also discovered that women find no protection in the justice system, even when laws exist to supposedly protect them.

This is what Central American women flee today and why they seek protection in the United States.

For instance, “Rosa,” a young middle-class woman who was brutally murdered in Guatemala, had reported extreme domestic abuse to the police before she disappeared. Rather than filing the restraining order she had requested, the police advised her to just to call if there was a problem. As shared by her family in an interview with us, calling the police without an order would be useless because “you would already be dead” by the time they arrived. Rosa’s badly-beaten body was found within months of her filing the police report. After her murder, the family experienced multiple justice system failures in their attempts to have the case investigated and prosecuted. This is one case in a broader pattern: women are fleeing extreme forms of violence directed at women in particular, from countries that repeatedly fail to protect them and enable women to be beaten, raped, and killed with impunity.

U.S. Policy Denies Asylum Based on Gender Violence

Instead of recognizing the plight of Central American migrants, and allowing them to enter through the proper channels to apply for protection as refugees, the U.S. government has been prosecuting them as criminals, separating them from their children and other family members, placing them in indefinite detention in prison-like conditions, and rushing them through immigration courts.

This strategy ignores international conventions and domestic laws that require treating those fleeing persecution or life-threatening conditions in their home countries as refugees and asylum-seekers. It also ignores the fact that the U.S. immigration system already has strict legal criteria and procedures in place to determine who may apply (and qualify) for asylum, and what counts as persecution. And it ignores the deep U.S. involvement in the internal affairs of Central American countries that has contributed to the very conditions from which Central Americans flee. The United States has legal and moral obligations to at least allow these asylum seekers the right to request protection. However, today, even individual cases are at risk of being left unheard in this polarizing political environment.

The US political environment presents a particularly dangerous situation for Central American women seeking protection.

In June 2018, the Attorney General Jeff Sessions ruled to deny asylum for a Salvadoran woman, known as Ms. A.B. In addition, the Attorney General issued a broad decision known as the Matter of A-B- that overturned a legal precedent affirming the right of domestic and gang violence survivors to seek protection in the United States—even when authorities in their home countries are unable or unwilling to protect them. This ruling misunderstands violence against women as a “private” matter and it has two immediate, pernicious consequences for women asylum-seekers:

1) For those already in the asylum process, it prevents these women from receiving protection based on these two forms of violence, the two main causes behind the exodus of thousands of Central American women fleeing their countries today.

2) For those just arriving to the U.S., it prevents these women from even the chance to apply for asylum because these new standards are applied for screening cases.

Given the fact that gender-based violence and gang violence are the key drivers for asylum claims for Central Americans, women fleeing violence who now approach authorities at the U.S. border to seek asylum protection are denied the opportunity even to determine whether they can start asylum proceedings.

Following the law and reaching out for protection now results in their swift removal back to the life-threatening conditions they fled.

Victimization in the U.S. Asylum System

U.S. policy requires that asylum seekers be already on US soil to apply for asylum. However, crossing the border without inspection constitutes a misdemeanor (re-entry after deportation becomes a felony) and thus the law criminalizes these women from the start. These women are usually apprehended, but more often they turn themselves in at the border. At that point, they can declare their intention to file for asylum.

If asylum-seekers are found to have a credible fear of return to their home country, they are usually held in detention while awaiting a hearing. But the process of applying for asylum until a final ruling takes years, so women (but not men) are often released on bond or through the Alternatives to Detention Programs and under surveillance (e.g., with check-ins with the immigration authorities and/or ankle bracelets for monitoring their movement).

Detention centers add a layer of trauma as these spaces are increasingly akin to prisons, and there have been reports of women abused by guards while detained.

Many Central American women testify before immigration judges without an advocate of any sort and face hostile questioning by US immigration lawyers whose career incentives include deporting as many asylum seekers as possible.

The oppressive treatment doled out by U.S. enforcement agencies often deters women from fully pursuing their right to protection while adding another layer of suffering to women who escape violence and who have experienced harrowing conditions in their journeys north.

Cecilia Menjívar is Dorothy Meier Chair in Social Equities and Professor in the Department of Sociology, University of California, Los Angeles

Shannon Drysdale Walsh is an Associate Professor in the Department of Political Science, University of Minnesota, Duluth

Gender Policy Report from University of Minnesota