Their day to cross the border eventually came. They intended to surrender to American border-patrol authorities on the other side and to seek asylum. The smugglers gave Flores and the others a set of small, flimsy rafts. They didn’t even have paddles—one person was supposed to swim in the water and pull the raft along with him. Things didn’t go as planned.
Partway through the crossing, Border Patrol agents showed up to intercept them. “Hide!” someone shouted. The migrants panicked. One immediately dove off the raft, flipping it over and tipping everyone into the water.
Flores had a sweatshirt tied around his neck, and it quickly soaked up water, dragging him down. “I couldn’t actually breathe,” he said, remembering the sensation of drowning.
Before he drowned, a Border Patrol officer pulled him out of the water and asked him how old he was. When Flores replied “14,” the officer turned pale and brought him onshore with the rest of the group of migrants.
Flores was now in Border Patrol’s custody. But he was alive—and, most importantly, on American soil.
Flores is one of the thousands of children who came to the United States alone fleeing violence in Central America—a population that the federal government officially classifies as “unaccompanied alien children.” Over 200,000 children—mostly from El Salvador, Honduras, and Guatemala—have arrived since 2012, according to the Office of Refugee Resettlement. Almost 41,000 children arrived in 2017 alone.
The great majority, including Flores, go on to seek asylum once they arrive in the United States. Flores was one of the lucky ones. His asylum claim was processed and granted in a matter of weeks after his interview with the Arlington asylum office in 2015.
But now, the Trump administration is actively unraveling ways for asylum-seeking migrant children to stay in the United States. Asylum approvals have plummeted, and the administration wants to deny all asylum claims for all who cross the border illegally—something that advocates are calling an “asylum ban.” A federal judge blocked the policy on November 20, and litigation continues. The federal government announced on December 21 that asylum seekers will remain in Mexico while their decisions are pending, and it is likely that advocates will challenge that policy change as well.
Although asylum has always been difficult for children to win, this outright hostility toward asylum seekers has not always been the case. In 2008, recognizing that unaccompanied migrant children faced specific humanitarian concerns compared with adults, Congress established a channel through the Trafficking Victims Protection Act for unaccompanied migrant children to seek asylum. But the burden is still on the children to argue their case in a way that fits the law’s protections.
It is up to the U.S. Citizenship and Immigration Services officer in the asylum interview to assess that claim of persecution, as well as to make the determinations of a protected social group, something that leaves a lot of leeway for the individual asylum officer to determine—and something very hard for a child to understand and properly articulate in an asylum interview without a lawyer.
“What frustrates me the most about how I see the asylum officers doing their job is that they expect applicants to be able to identify themselves as a member of a particular social group,” said Elissa Steglich, who teaches the Immigration Clinic at the University of Texas at Austin School of Law.
Many children might not even have been told why exactly they were being sent to the United States, especially when an adult made the decision to send them on their journey.
“If a child isn’t given all the information, he or she may think, for example, that the trip was mainly to reunite with family members in the U.S., while the more important and underlying motive may be to escape extortion by a gang,” wrote Matthew Lorenzen, a researcher on unaccompanied Central American migrant children, in an email.
Because immigration law is civil, not criminal, children are not entitled to legal counsel when they go through their asylum interviews or immigration-court proceedings. The Obama administration had allocated $4.5 million annually for the legal representation of migrant children through the Justice AmeriCorps program, but in 2017, the Department of Justice under the Trump administration declined to renew the contracts with immigrant-legal-services nonprofits. Now, fewer and fewer children are getting the legal representation they need.
“Right now, less than half of the kids are getting representation,” explained Jennifer Podkul, the policy director at the nonprofit Kids in Need of Defense, or KIND. “It’s almost impossible for a child to win asylum cases if they’re not represented.”
“Unfortunately, regardless of what the country conditions are, regardless of what the danger is, how much danger the child feels, a child isn’t going to know what’s relevant to an asylum officer,” said Michelle Mendez, the managing attorney of the Defending Vulnerable Populations Project at the Catholic Legal Immigration Network, Inc. “He or she is not going to know how to verbalize even why they might be scared. They might be too traumatized.”
Under the 1951 Refugee Convention, migrants who fear persecution in their home country on specific grounds can petition for asylum or refugee status. Most unaccompanied children argue that they face persecution in their home country due to membership in a particular social group—a family targeted by a gang, for instance. It’s a relatively high legal standard to meet.
“What’s lost in a lot of the debate is how narrow the asylee and refugee definition is,” explained Ruth Wasem, a professor at the University of Texas at Austin.
The Trump administration has sought to tighten the definition even further. In June 2018, then–Attorney General Jeff Sessions issued guidance that restricted asylum claims by domestic-violence survivors and victims of gang-based violence.
Relatively few cases have been heard under the new guidance, but advocates like Alexandra Rizio, the senior staff attorney at the Safe Passage Project, a nonprofit in New York City that represents migrant children, expect the decision to restrict asylum. “It’ll be harder to win asylum cases, especially when there is domestic violence,” she said, though she thinks that there is still a path to win asylum cases.
Child-asylum approvals had fallen even before the Trump administration issued its “asylum ban.” An analysis of U.S. Citizenship and Immigration Services asylum data shows that across USCIS asylum districts, approvals have fallen from a high of 85.1 percent, during the third quarter of 2014, to 28.1 percent in the fourth quarter of 2018. Only 10.9 percent of all juvenile asylum cases were approved in the Houston, Texas, asylum division this past quarter. As fewer and fewer children have access to proper legal representation, it is possible that the asylum-approval rate could fall further.
The Trump administration’s increasing hostility toward asylum applicants threatens the cases of asylum petitioners like Javier (whose name has been changed because of the sensitivity of his asylum case). Javier’s case has been pending since he came to the United States in 2015, when he was 17 years old.
He was forced to leave El Salvador when a member of Mara Salvatrucha (the gang more commonly known as MS-13) approached him after school one day and started beating him. The gang had already tried to recruit him, which Javier had refused. His mother had previously fled to America to get away from her abusive husband and had been working there for some time. To the gang members, the few American dollars she remitted meant that Javier’s family had money. As a result, his family was singled out for extortion, and potentially worse.
To get her children away from the gangs, Javier’s mother paid smugglers an exorbitant amount—$5,000, almost one and a quarter the average salary in El Salvador—to take him and his sister to America. He spent three months shifting between different buses and walking the entire route from El Salvador, through Honduras and Mexico, to the Texan border. To the smugglers, the children were just cargo.
“Sometimes [the smugglers] don’t even give you any food or water or anything,” he told me through a translator.
He crossed the border at Hidalgo, Texas, in May 2015, and then surrendered to border-patrol authorities. His sister was placed into expedited removal and deported three days later. Javier stayed, though, and was placed in youth detention in San Antonio for two months, until he was released at the end of June 2015 to reunite with his mother in Seattle.
His case has been pending since then, despite multiple, grueling interviews over Skype with the asylum office in San Francisco. Javier at least has a lawyer, Shara Svendsen, to help navigate all of the asylum proceedings. She told me that some interviews went for as long as four hours at a time.
Yet Javier can’t go back to El Salvador because he fears that the gangs would kill him. “I’m afraid they’ll kill me or that they’ll do something bad to my life … I can’t go back to El Salvador or Honduras,” he said. “News travels fast. When they find out you’re back, at any moment, others might want to come find you and do something bad to you.”
In a May interview with NPR, Secretary of Homeland Security Kirstjen Nielsen acknowledged low asylum-approval rates, saying that “at the end of the day, only 20 percent are actually given asylum by judges, meaning 80 percent of the people coming here are either fraudulently claiming it, which is breaking the law, or they do not have a case that fits within our statutory framework.”
Advocates disagreed, saying that the situation on the ground differed entirely from the secretary’s assessment. Gui Stampur, the deputy executive director of the Safe Passage Project, responded that “the secretary of homeland security should meet and interview asylum seekers and hear their stories, and then she will learn that that’s not the case.”
Other advocates attributed the administration’s hostility to asylum to political posturing. Omar Jadwat, the director of the ACLU’s Immigrants’ Rights Project, argued that “very little of what [the administration] has said even begins to grapple with the reality that these are people coming to the United States to seek protection from persecution.”
Officials at U.S. Citizenship and Immigration Services did not respond to multiple requests for comment for this story.
A denial of asylum status is not the end of the line for most children. They’ll get what immigration lawyers call “another bite at the apple,” a curious culinary analogy for a deadly serious issue, in which they can have their case heard before an immigration judge, and perhaps might have access to other forms of legal relief like protection under the convention against torture, or a special legal status for children abandoned by their family.
Still, their chances are not that much better in immigration court, where judges face increasing political pressure from the Trump administration to clear cases, despite an increasingly large case backlog. Over the past year, 56,498 immigration-court cases, and about 23 percent of all juvenile immigration-court cases, ended in a removal order. These orders typically end in a deportation if immigrants lose their appeals.
According to Jennifer Podkul, the policy director at KIND, there is no government program for the safe repatriation of children to their home country. Instead, the federal government has some partnerships with NGOs in an attempt to safely repatriate children, all in line with what they call the “best interests” of the child.
Not all children have access to those repatriation programs, though, and for those unlucky enough to fall through the cracks, the “government drops them off in a return shelter in the country,” Podkul explained.
As a result, they might still end up like Javier’s sister, who remains back in the family’s hometown in El Salvador, at the mercy of gangs like MS-13.
The Trump administration rails against the “loopholes” in the system that allow migrants to stay, arguing that the migrants will be a drain on American taxpayers. But actual cases tell a different story. Take Gilberto Flores, the gay youth who left El Salvador and came to the U.S. after the openly gay teacher at his school was murdered. Three years after he was granted asylum, he is now attending college in Washington, D.C., with the aspiration of becoming a nutritionist.
In the meantime, the children will keep on coming, left at the mercy of an administration intent on shutting the door on them.