Seeking a Better Life: Asylum Law, the Migration Crisis and Available Legal Remedies

Between 2012 and 2017, the number of asylum applications from El Salvador, Guatemala, and Honduras—countries collectively known as the Northern Triangle—increased by eight hundred percent1. The Trump administration has responded by increasing deportations, separating families, and forcing would-be asylum seekers to wait to file their claims in Mexico, where they have limited resources and remain exposed to many of the dangers from which they fled2. The root of this mass exodus from three small countries reaches back to the Cold War, when the US became enmeshed in civil wars in the Northern Triangle in the name of combatting socialism’s spread in the Western Hemisphere. As the surge of Central American asylum-seekers continues, it is imperative that the US legal system determine a means of resolving the ever-increasing number asylum applications, which has already overwhelmed immigration courts3.

In Part I, I review the modern history of asylum law as it developed following World War II and key interpretations of American asylum law, such as the grounds upon which an alien may seek asylum and the threshold of persecution one must suffer to qualify for it. In Part II, I explain the recent history and current state of migration from Central America to the US. Part II establishes the long-standing bias against asylum seekers arriving from the Northern Triangle, the ways in which the Trump administration has narrowed the means by which Central American migrants can seek and obtain asylum, and the ongoing challenges that plague the US immigration court system.

In Part III, I discuss the differences between the asylum-seekers arriving from Central America today and the asylum-seekers for whom the current asylum paradigm was established. In comparison to the organized, state-sponsored persecution fresh in the minds of the United Nations when it formulated its Convention on the Status of Refugees in 1951, individuals fleeing from the Northern Triangle are persecuted by irregular groups and for diverging reasons, which has resulted in a number of cases exploring the boundaries of existing asylum law. In Part IV, I explain that this is not the first category of asylum-seekers to face this predicament, and I elaborate on the approaches legislative and judicial bodies have employed to resolve these earlier groups’ plights. In particular, I point out the two precedents that emerged from policies carved out for these unusual groups: the US’s obligation to address the needs of people exposed to persecution as a direct result of its military actions and the possibility of a simpler, better-channeled asylum process for certain categories of applicants.

In Part V, I illustrate the historical US role in creating the root causes of today’s surge of asylum-seekers from the Northern Triangle, situating these migrants in the tradition of individuals adversely affected by American military actions in their homelands. Finally, in Part VI, I probe the legal responses available to the US asylum system in the face of the ongoing migration wave. In particular, I situate today’s Central American asylum-seekers in the tradition of Cuban and Nicaraguan asylum-seekers and advance a specific policy for individuals seeking asylum from the Northern Triangle rooted in the precedent of the Cuban Adjustment Act and the Nicaraguan Adjustment and Central American Relief Act.

A Brief History of Asylum Law

The modern concept of asylum was born from the ashes of World War II, when Western nations were acutely aware of the threats modern weapons and fascist ideologies posed to them4. Rooted in the Universal Declaration of Human Rights, the contemporary concept of asylum and those to whom it is available was enshrined in the United Nations Convention Relating to the Status of Refugees in 1951, which names five bases of persecution for which an individual may claim refuge: race, religion, nationality, membership in a particular social group, and political opinion5. These five grounds for asylum are reflective of the persecution witnessed during World War II, which saw millions of civilians persecuted and killed for their religious and political affiliations.

In the US, “any alien who is physically present in the United States or who arrives in the United States…irrespective of such alien's status, may apply for asylum”6. The statute draws directly from the United Nations Convention Relating to the Status of Refugees in its definition of which applicants may seek asylum: “To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant [in his home country]”7. Though the language quoted above is broad, the burden of proof is always on the applicant, who must establish that he meets all definitions and requirements to claim asylum8. While the applicant’s testimony may indeed be the sole source of evidence supporting his claim, the REAL ID Act of 2005 raised the stakes of such testimony by permitting any inconsistency in an applicant’s testimony to be counted against him, “without regard to whether such inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim”910.

All asylum law—including the United Nations Convention Relating to the Status of Refugees and above-quoted US asylum law, which governs American asylum-seeking procedures—is densely packed with terms whose meanings have been repeatedly analyzed and litigated. Asylum can be defined as an entitlement “to continue one’s relocation indefinitely in a foreign country,” regardless of that country’s other immigration laws and processes11. The entitlement of asylum undermines the legitimacy of immigration controls asylum-seekers are allowed to circumvent, which renders it politically scarce12. This, in turn, necessitates governments to impose stringent restrictions on who can claim such an entitlement13. Such a need for strict limits on asylum-seeking has influenced American courts’ interpretation of the requirements individuals must meet to lay claim to the entitlement of refuge inside US borders.14

Specifically, courts and politicians have trended toward granting asylum only to those whose plights cannot possibly be solved in their home countries15. This means excluding those who are suffering famines and droughts, however dire their situations may be, in favor of those who face explicit persecution for their identities and whose problems cannot be solved without relocation (or a complete overhaul of the government in the country from which they have fled)16. This is a critical distinction in the world of asylum law, as the concept of what constitutes such persecution has become one of the mostly hotly contested debates in the field.

I.N.S. v. Cardoza-Fonseca, a rare case in which the Supreme Court heard an asylum law claim, established that an individual seeking asylum did not need to prove it was “more likely than not” he would be persecuted in his home country in order to claim the required “well-founded fear of persecution.” Two years later, in Matter of Chen, the Board of Immigration Appeals (“BIA”) held that “asylum may in some situations be granted where there is little threat of persecution” if an individual or his family had suffered “atrocious forms of persecution” in the past17. Yet these generous interpretations have become increasingly rare, particularly as immigration courts are overrun with claims and judges make dramatically variable rulings on similar cases18. Cases like Matter of Chen also highlight the roles of perception, time, and politics in asylum matters: whereas the applicant in Matter of Chen was viewed sympathetically as a Christian suffering in communist China in the 1980’s, many asylum seekers arriving from nominally democratic and US-allied governments are not considered through a similarly compassionate lens19.

Not all instances of harassment, threats, intimidation, arrest, or physical violence are sufficient to claim asylum, even if a protected status is the explicit cause of such behavior2021. For instance, an individual who operated an anti-government radio station and was the subject of harassment and threats for expressing his political opinion was deemed deportable22. Likewise, in a 2018 case, a petitioner who had been arrested and beaten due to his advocacy for his minority linguistic community in Cameroon was found not to have a credible fear of persecution because his past arrests did not rise to the level of persecution23. In the words of the Eighth Circuit: “Persecution is ‘an extreme concept that does not encompass low-level intimidation and harassment’… The objective element requires ‘credible, direct, and specific evidence that a reasonable person in the applicant’s position would fear persecution if returned to [his] country of origin.’24” It is this definition of persecution that is commonly applied to contemporary claims of asylum.

In addition to establishing that he has a credible fear of persecution, an individual seeking asylum in the United States must demonstrate that he is or is likely to be persecuted because of his race, religion, nationality, membership in a particular social group (“PSG”), or political opinion25. While race, religion, nationality, and political opinion have relatively discrete definitions, the question of what constitutes a “particular social group” has bedeviled courts. In 2014, the BIA held that “an applicant for asylum or withholding of removal seeking relief based on ‘membership in a particular social group’ must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question”26. Distinction of a group within the eyes of the perpetrator of the alleged persecution is insufficient for the asylum process to recognize membership in a PSG; the alleged PSG must be distinct in the “perception of the society in question” as a whole27.

The current wave of migration from Central American countries has brought with it a host of newly proposed PSGs: survivors of domestic violence, former gang members, individuals fleeing gang recruitment, and membership to families targeted by narcotraffickers, among others282930313233. Rather than clarifying the parameters of what constitutes a PSG, these cases have further muddied the waters. While the Department of Justice explicitly rejected the family group as a PSG, this stands at odds with its earlier ruling that family-based sub-clans could be considered PSGs34. Even more confusing is the court’s litigation and re-litigation of the status of domestic violence survivors fleeing violent former intimate partners or legal husbands353637. In contrast to the definition of “persecution,” which has been narrowed but clarified over time, the statutory definition of a PSG has widened and blurred as new cases and proposed groups pour into immigration courts.

Central American Migration to the United States, 1980-Present

The story of modern Central American asylum-seeking begins with the Refugee Act of 1980, which codified American courts’ intention to “move away from a refugee and asylum policy which, for over forty years, discriminated on the basis of ideology” by preferring refugees from communist countries over refugees from non-communist countries38. The Act opened the door for Central Americans, who fled from bloody, US-sponsored civil wars in their home countries39. The official policy of non-discrimination failed to effect the actual results of asylum claims from Central American countries, however: “Asylum grant rates for Salvadorans and Guatemalans in 1984 were both under 3%. In stark contrast, the approval rate for Iranians was 60 percent, 40 percent for Afghans fleeing the Soviet invasion, and 32 percent for Poles” (internal quotations omitted)40.

This pattern of discrimination in asylum claims came to a head in 1985, when numerous religious organizations brought a class action known as American Baptist Churches v. Thornburgh against the Immigration and Naturalization Service (INS), Executive Office for Immigration Review (EIOR), and the US Department of State (DOS) to dispute their unfair consideration of asylum claims made by Salvadorans and Guatemalans414243. The suit resulted in what is widely known as the ABC Settlement, wherein the defendants granted qualifying asylum-seekers initial or de novo adjudications of their asylum claims and stopped the defendants from coercing asylum-seekers into voluntary departure agreements4445. While the ABC Settlement remedied some of the damage for those asylum-seekers who had arrived in the US early enough to qualify under the settlement agreement, it did not stop the narrative that Central American asylum-seekers were strictly economic migrants who lacked the fear of persecution asylum-seekers from communist countries possessed46. As discussed at length below, this perception, which continues today, is thoroughly erroneous: El Salvador, Guatemala, and Honduras all experienced coups d’états and civil wars that left thousands dead and disappeared, often precisely for their political opinions, race, or membership to particular social groups, all of which are explicitly protected by American asylum law47.

Between the passage of the Refugee Act of 1980 and 2015, the Central American population in the US grew from 354,000 to 3,385,000, with about 90% of the latter count arriving from El Salvador, Guatemala, and Honduras48. The number of asylum claims from these three countries alone increased 800% between 2017 and 2018, and more than half of such claims were made by unaccompanied minors49. This resulted in over 280,000 pending asylum claims by the end of 2017, which were piled on to an immigration court system already burdened with over one million active cases50.

The Trump administration has adopted the perception of the defendants in the ABC Settlement, considering Central American refugees to be “undeserving economic migrants whose admission would open the floodgates for the world’s most poor and vulnerable to come pouring into the United States” (internal quotations omitted)51. Rather than expanding the immigration court system, the Trump administration has responded to the spike in asylum applications by expanding deportations, deterring migrants from attempting to cross the border, and preventing would-be asylum-seekers from presenting themselves to request asylum in the first place52. President Trump has exploited the political scarcity of asylum by presenting it as a short-cut around the otherwise cumbersome immigration process5354.

Arguably the most notorious of the Trump administration’s policies was the family separation policy, also known as “zero tolerance,” which commenced as a pilot policy in 2017 and was fully implemented in April 201855. Sophia Lee of World Magazine explained the practical ramifications of zero-tolerance in her article “A Shifting Border Policy”: “The Trump administration…separated any parent from a child simply for crossing the border illegally, an act that carries a misdemeanor charge for first entry and a felony charge for illegal reentry. Officials sent parents to jail, then reclassified their children (some younger than 2 [sic] years old) as unaccompanied and sent them to federally run shelters across the country—all without having any plan for reuniting these families” (internal quotations omitted)56. While the policy ended in June 2018 amid widespread public protest, both the number of children forcibly removed from their families and the number who have so far been reunited with those families remain unknown, though they are estimated to be over five thousand57.

Though they have received significantly less media attention, the Trump administration has implemented several other policies in an attempt to decrease migration and asylum-seeking from Central America. One of President Trump’s earliest continuing initiatives was the expansion of deportations to undocumented aliens without criminal records58. Following the official end of family separation, the administration implemented a metering policy to restrict the number of migrants who could claim asylum each day59. This has forced thousands of migrants to remain in Mexico to begin their asylum claims, where few have permanent homes and many are victims of the violence they attempted to flee, specifically rape and theft60.

Those migrants who reach American immigration courts to make an asylum claim face judges with dramatically divergent rates of granting asylum and a system whose official rules are erratically applied to individual cases6162. In the same courthouse, one judge may be as much as 1820% more likely to grant asylum as his colleague down the hall63. The disparity between courts by location is just as vast: a Chinese asylum seeker has only a 7% chance of success if her case is heard in Atlanta, but a 76% chance of success in Orlando64.

“Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment” by Deborah Anker reports the findings of an empirical study on the asylum determination process; its principal finding is that “the current adjudicatory system remains one of ad hoc rules and standards…[in which] ideological preferences and unreasoned and uninvestigated political judgments continue to influence the decision-making process”65. The wide disparity between asylum law on the books and in practice extends to numerous aspects of an asylum case: unpredictable evidentiary rules, judges’ participation in testing the credibility of an asylum seeker, unreliable foreign language interpretation, inconsistent acceptance of objective human rights assessments of applicants’ countries, and wide-spread bureaucratic errors66. This confluence of inconsistent rules and opaque standards has created a system in which the only applicants granted asylum in Anker’s study were “relatively well-educated, represented by experienced counsel, and generally able to produce an extraordinary quantity of corroborative evidence”67. Needless to say, this prototype of a successful asylum applicant is not representative of the average individual in need of the asylum entitlement, who has often fled persecution in his home with little in the way of corroborative documents or money to pay an experienced attorney68. This means that even if a Central American asylum-seeker can overcome the numerous hurdles imposed by the Trump administration, his case is likely to be rejected by an unreliable and over-burdened immigration court6970.

Difficulties Situating Central American Migration in the Existing Asylum Paradigm

To understand the current wave of asylum-seekers from the Northern Triangle, it is essential to study these migrants’ motives for leaving their home countries of El Salvador, Guatemala, and Honduras. The improper perception that these are economic migrants seeking better work opportunities has existed since at least the 1980s and continues to be the narrative advanced by the Trump administration71. The reality is that the majority of asylum-seekers arriving from Central America are fleeing “peacetime” violence that, in the words of Salvadoran journalist Oscar Martinez, “makes nonsense of the words war and peace”72. These migrants are not migrating north for economic gain, but rather fleeing from violence in their homelands7374. It is necessary to put the scope of this danger in perspective: “The United States, usually regarded as a violent country, has a current average of 4.5 murders per 100,000 inhabitants. Honduras has 90. In 2015, El Salvador’s murder rate began to skyrocket…with an average of one murder taking place every hour”75. This puts Central America alone in having a “peacetime” homicide rate that outpaces everywhere but active warzones in Iraq and Syria76.

These outstanding levels of peacetime violence fall far outside the parameters of persecution imagined by the United Nations in 1951 when it conceived of what would become modern asylum law. Far from the government-orchestrated persecution for which modern asylum was designed, the majority of asylum-seekers arriving from the Northern Triangle countries are fleeing violence perpetrated by non-state actors—specifically, by gangs and drug trafficking organizations77. Because they are not often persecuted on the basis of race, religion, nationality, or political opinion, asylum-seekers frequently claim asylum as members of a PSG, the most nebulous of the categories protected by US asylum law78.

In Matter of SEG, the BIA considered whether youth who had been subjected to recruitment efforts by gangs and resisted membership could constitute a PSG, along with their family members79. This is an increasingly urgent question, as more than half of all asylum-seekers from Central America in the past five years were unaccompanied minors, many of whom were boys and young men fleeing forcible gang recruitment8081. Yet the BIA concluded that such individuals and their families did not constitute a PSG because, though the asylum-seeker’s testimony was credible, he had “failed to establish either past persecution or a well-founded fear of future persecution”82.

One year later, Benitez Ramos v. Holder found that a former member of a Salvadoran gang could be considered a member of a PSG83. Judge Posner held that individuals who had abandoned their gang membership could be singled out for negative treatment, but did not opine on the issues of Matter of SEG: namely, whether individuals who resisted gang membership were also likely to face similarly negative treatment and whether they deserved protection from the same8485. In 2016, the court in Reyes v. Lynch reversed and found that former gang members were not, indeed, members of a PSG because such a social group was not sufficiently particular or distinct86. These irregular outcomes have left men and boys, often as young as twelve, in legal limbo as they flee from gangs, regardless of whether they are fleeing their former membership or their efforts at recruitment878889.

When a gang targets an individual for recruitment or to participate in transactions (i.e., selling drugs from a family store), the target includes not only the individual, but his family as well9091. The respondent in Matter of LEA thus argued that membership in a family targeted by a gang constituted membership in a PSG, as his relationship to his father had made him a victim of gang violence upon his first deportation to Mexico92. Historically, the BIA has indeed recognized familial sub-clans in Somalia as PSGs93. The Attorney General found the opposite in regard to nuclear families in this case, though, and concluded that family was insufficiently socially distinct to qualify as a PSG, even if an individual were targeted for his membership to a family94.

It is necessary to clarify that the violence motivating mass migration from Central America has been enabled by weak law enforcement and state institutions. In 2014, impunity rates for homicide were 95% in El Salvador, 93% in Guatemala, and 97% in Honduras, indicating a state apparatus far too weak to successfully combat even the most serious of crimes95. Gang assassins are able to commit over fifty murders in their short-lived careers with impunity, and fear retaliation from gangs rather than capture by law enforcement96. Following bloody civil wars that lasted well into the 1990s, Northern Triangle countries continue to lack what Jaya Ramji-Nogales terms “transitional justice”: state mechanisms that “successfully reconstruct social norms opposing violence” 97. Far from establishing law enforcement bodies, courts, and government institutions that “oppos[e] violence,” the existing order is one in which individuals often fear and denounce police as much, or even more, than gangs9899. Journalist Oscar Martinez recounts a case study in why this is so: “When one badly beaten migrant managed to escape the house in a small town where he was being held [hostage] along with dozens of other migrants, and went to police to make a report, the police returned him to the kidnappers”100. This depth of corruption is not uncommon, and the inability or unwillingness of police to intervene in violence drives another commonly cited impetus for asylum-seeking: domestic violence101.

Like men fleeing recruitment and former membership to gangs, women seeking asylum on the basis of domestic violence do not fit neatly into the existing asylum categories (all landmark cases involving domestic violence have been made by women)102. This has led to yet another set of cases examining whether or not abused women can constitute a PSG. In Matter of ARCG, the BIA considered the case of a woman who claimed asylum on the grounds of membership to a group of “married women in Guatemala who are unable to leave their relationship”103. The respondent in this case detailed “repugnant” abuse by her husband, for which she had sought help from law enforcement numerous times only to be informed that they would not “interfere” in a marital relationship104. While the BIA reiterated its stance opposing “proffered social group[s]…defined principally, if not exclusively, for the purposes of the asylum claim” (internal quotations omitted), it found that “married women in Guatemala who are unable to leave their relationship” could constitute a cognizable PSG for the purposes of claiming asylum105.

The finding in Matter of ARCG reflected the norm of accepting domestic violence survivors as asylum-seekers under the Obama administration, but this norm quickly became a target of President Trump’s above-mentioned efforts to reduce Central American migration. In Matter of AB, then-Attorney General Sessions certified an asylum matter concerning a domestic violence survivor to himself and reversed the holding of Matter of ARCG106. Here, Attorney General Sessions emphasized that “when the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unable or unwilling to protect her”107. Matter of AB narrowed the scope of asylum claims by drawing a distinction between persecution and “private violence” so that an asylum-seeker needed to evidence that the “government condoned the private actions or demonstrated the inability to protect the victims”108. Despite the above-mentioned rates of impunity in Central America, Attorney General Sessions explicitly found that the applicant needed to “consider whether government protection is available, internal relocation is possible, and [whether] persecution exists countrywide” rather than seeking asylum in the US109110.

The reversal of Matter of ARCG was widely perceived as politically motivated and prompted the US District Court for the District of Columbia to take up the issue yet again in Grace v. Whitaker, which again reversed111. Judge Sullivan’s holding struck at the heart of Matter of AB, finding that an “immigration decision precluding credible fear determinations in expedited removal proceedings based on claims of domestic violence and gang-related violence was arbitrary and capricious” and that the Trump administration’s policies requiring a showing that “government condoned private actions or demonstrated complete helplessness to protect victims was inconsistent” with the definition of “persecution” 112113. Grace v. Whitaker has thus given women fleeing domestic violence an ability to claim asylum on the basis on their membership in a PSG, unlike men and boys fleeing gang violence on the same grounds114115116. The issue of whether these women constitute a PSG remains unsettled, though, as Attorney General Barr has since filed an appeal from Grace v. Whitaker117.

Legal Approaches to Accommodating Atypical Asylum-Seeking Groups

The contemporary surge of asylum-seekers from the Northern Triangle is far from the first group of migrants to fall outside the normal parameters of asylum law. Congress has proven willing to carve out means for some such irregular groups to claim asylum, beginning with the Migration and Refugee Assistance Act of 1962, which was passed with the broad goal of “enabl[ing] the United States to participate in the assistance rendered to certain migrants and refugees”118. This Act was subsequently used under the Clinton administration to assist individuals suffering widespread civil war and ethnic cleansing in the Balkans in the 1990s, but has not been directly applied to asylum-seekers reaching American soil in large numbers119.

By contrast, the Indochina Migration and Refugee Assistance Act of 1975 (“IMRAA”) was designed expressly to assist individuals “in urgent need of assistance for the essentials of life” in their efforts to resettle in the US120. Under the IMRAA, approximately 130,000 refugees from countries affected by the Vietnam War (specifically Cambodia and Vietnam) were permitted to enter the country and receive relocation aid and financial assistance in the process121. While the IMRAA did focus on asylum-seekers who sought relocation due to persecution on the basis of political opinion or religion, which were already included in asylum law in 1975, it was a landmark recognition of the US’s obligation to individuals facing persecution and violence due to American military activity in their home countries122.

Like the IMRAA, many of the beneficiaries of the Cuban Adjustment Act (“CAA”) were persecuted on the basis of political opinion and religion—but under the CAA, such persecution was not a requirement for an individual to claim asylum in the US123. In contrast to the IMRAA, the CAA was created in response to a large and growing population of Cubans who had fled the island to come to the US but were unable to obtain legal status as immigrants because of stonewalling by the Castro regime124. In this way, the CAA was “created as a managing technique…in an effort to hasten the resettlement of the ever increasing, unemployable Cuban population” that was stranded in an illegal status they could not remedy without “great hardship…and financial burdens”125.

Under the CAA, Cubans were able to apply for permanent residence status after being in the US for one year, without needing to prove persecution under one of the five categories of the asylum law126127. The political angle of the CAA cannot be overstated when considering this Act: the US has never created a lower barrier to entry than it did for individuals fleeing Cuba, America’s communist rival that had threatened it with nuclear war and allied with the USSR128. Nevertheless, the CAA can serve as an example for the potential simplicity of asylum laws; Congress was evidently able to minimize the complexity of the byzantine asylum law system when it was sufficiently motivated and sympathetic to asylum-seekers who are “already impoverished by force or circumstances”129.

Thirty-two years after Congress passed the CAA, the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) took a similar approach to individuals fleeing Nicaragua, Cuba, and—to a lesser extent—nationals from Central American and Eastern European communist states130131. NACARA provides amnesty for individuals from Nicaragua and Cuba specifically, and requires only that they be eligible individuals admissible to the US who have been physically present in the country for a continuous period on or before December 1, 1995 (and not ending before their application is filed)132. The bar for individuals seeking asylum from Central American and Eastern European countries was significantly higher than that for Nicaraguans and Cubans133. This disparate treatment resulted in lawsuits from individuals originating outside Nicaragua and Cuba, but courts have routinely held that such differing standards are not a violation of equal protection because “NACARA is rationally related to a legitimate government purpose”134.

Like CAA, NACARA creates a vastly wider path to permanent residency and employability for individuals arriving in the US from countries against whom the US is frequently pitted politically135136. The authors of NACARA retained greater discretion over the immigrants who may qualify under it, however: individuals seeking an adjustment of status must be independently admissible to the US, meaning that those with criminal records or other undesirable characteristics can be excluded137. This is a critical caveat that would prevent fiascos like the Mariel Boatlift, in which the Castro regime exported 125,000 Cubans to the US, including numerous prisoners who caused an unparalleled crime wave when they arrived in Miami138.

The most recent instance of a statutory carve-out for a particular group of migrants is also the most specific. The Iraqi special immigrant visa program (“SIV”) was established in 2008, and “makes Iraqi nationals eligible for special immigrant status if they: (1) were employed by or on behalf of the US government in Iraq between March 20, 2003 and September 30, 2013, for not less than one year; (2) provided documented valuable service to the US government; and (3) have experienced an ongoing serious threat as a consequence of the individual’s employment by the United States” (internal quotations omitted)139. Like the IMRAA, the SIV was designed specifically to address a debt owed by the US to individuals who were placed in harm’s way by American military activity140. Unlike the above-mentioned programs, however, the SIV program is notoriously specific in which individuals it will recognize (i.e., only translators, rather than civilians in the affected areas generally), and has long been bedeviled by “problems with policy specificity, efficiency, and resource allotment [that] threaten the true realization of the goals” of the SIV program141.

Beginning with the Migration and Refugee Act of 1962, the US has attempted to address various groups of individuals in need of refuge whose plights were not adequately addressed by general asylum law142143. Between 1962 and 2008, two distinct trends in these groups have emerged. First is the concept of an obligation on behalf of the US to address the needs of people who have been exposed to violence and persecution as a direct result of its military actions; this is reflected in both IMRAA and SIV144145146. Second is the realization of a simpler, better channeled asylum-seeking process, as seen in the CAA and NACARA147148. As discussed at length below, both these trends could be applied to the current wave of asylum-seekers from the Northern Triangle to remedy an asylum process that many consider “unjust because it create[s] a great personal hardship to, and impose[s] financial burdens upon, people who are already impoverished by force or circumstances”149.

The Role of the US in Creating the Current Migration Surge from Central America

The image of Central American migrants as undeserving economic migrants whose problems can best be solved by in situ economic development, rather than a policy of opening America’s doors to the world’s poor, has long been promoted to downplay the very real conflicts from which such asylum-seekers flee150151. Because the US funded and trained right-wing forces in these conflicts, persisting political and ideological biases in immigration courts reduced the number of Central American asylum-seekers deemed deserving of such an entitlement152153154. Yet the role of the US in these conflicts—which included funding regimes known to be committing genocide against their populations and training death squads on American soil—cannot be overstated155. As the brief overviews below illustrate, the US played such a fundamental role in the root causes of contemporary migration from the Northern Triangle that asylum-seekers from these countries would be more properly grouped with beneficiaries of IMRAA and SIV than with individual cases processed via the regular asylum process.

The Guatemalan Civil War spanned from 1960 to 1996, making it the longest and bloodiest civil war in Central America156. It began shortly after the overthrow of Jacobo Arbenz’s democratically elected government in 1954, which was orchestrated by the CIA out of fear for Arbenz’s leftist leanings157158. During the following thirty-six years, the US was “intimately involved in equipping and training Guatemalan security forces that murdered thousands of civilians” and the CIA in particular “retained close ties to the Guatemalan army in the 1980s, when the army and its paramilitary allies were massacring Indian villagers… US officials were aware of the killings at the time”159. Driven by Cold War anxieties about socialism spreading in the Western Hemisphere, the US gave the Guatemalan military $33 million in aid through the 1960s and 1970s160. Throughout this period, the Department of Defense was aware of the US-backed government’s strategies, which included mobile military police, paramilitary death squads, torture, indiscriminate killing of civilians, and razing of villages, with a disparate targeting of indigenous populations161162. When the civil war ended by treaty in 1996, 200,000 were estimated dead and 45,000 remained disappeared163.

Since the beginning of the conflict in 1960, thousands of Guatemalan civilians had fled the bloodshed in their home country and settled in concentrated areas in the US164. Unlike Guatemala, major US cities like Los Angeles were rife with gang culture, to which many Guatemalan youth were exposed after fleeing165. This was followed by an abrupt shift in US immigration policy that deported large numbers of gang-affiliated youth to Guatemala at a time when the Guatemalan state was particularly fragile, having just emerged from a civil war and completely lacking infrastructure to manage widespread crime166. The result was the creation of trans-national gangs and drug trafficking organizations that were able to operate with impunity and completely dominate the weak Guatemalan state167. Today, large swaths of the country are entirely without a state presence, instead being controlled by narcotraffickers who have made Guatemala the center of US-bound cocaine trafficking168. As journalist Oscar Martinez writes of the gang-filled areas of the Northern Triangle: “Here a man without a gun isn’t considered a man. That’s not an exaggeration; it’s life”169.

American involvement in the Salvadoran civil war was similar to its role in Guatemala: “Over the course of the Salvadoran civil war the United States sent more than $4.5 billion in aid to El Salvador, [and] trained many Salvadoran soldiers on US soil in counter-insurgency tactics and torture techniques” at the School of the Americas as a part of its Cold War containment policy170. The conflict in El Salvador began with a coup d’état in 1979; unlike the overthrow of President Arbenz in Guatemala, however, this coup was supported by the majority of Salvadorans, amongst whom the deposed General Romero was unpopular171. The US perceived this as a “leftist insurgency” and would spend the next twelve years funding right-wing militias as they fought the left-wing FMLN172. This funding reached such levels that, through the 1980s, the Reagan administration “was essentially funding the entire war in El Salvador,” which it considered a “war on terrorism”173.

Many of the most notorious atrocities carried out during the Salvadoran civil war were executed by soldiers trained and armed directly by the US174175. After completing courses at the US-based and -funded School of the Americas, right-wing Salvadoran militias murdered—in separate incidents—six Jesuit priests, their housekeeper, and her daughter; Catholic activist Father Rutilio Grande; and four American Catholic nuns, who were raped and left in shallow graves176. Foremost among these American-sponsored militias was the Atlacatl Battalion, which was trained in the US just three months before carrying out the El Mozote massacre177. The massacre, perpetrated on a village of largely Pentecostal civilians unaffiliated with either the left- or right-wing in the civil war, resulted in the deaths of approximately 1,200 individuals178. Beyond the scope of civilian casualties, the brutality of the El Mozote massacre sent shockwaves through the already war-torn country: “Old men were tortured. Then executed. Mothers were separated from their children. Raped. Executed. Crying, frightened children were forced into the convent. Soldiers fired through the windows. More than a hundred children died; their average age was six”179. This was the Atlacatl Batalion’s first operation after completing training at the School of the Americas180 .

Thousands of Salvadorans fled the civil war in their home country, many of whom were young men who had deserted from the right-wing military or fled forcible recruitment into left-wing militias and possessed little skill or education beyond fighting when they settled in the US181 . When they were deported back to El Salvador in the 1990s alongside their Guatemalan counterparts, these individuals laid the foundation of a gang culture that has overwhelmed the fledgling Salvadoran state182. These gangs are now so deeply entrenched that “there are as many as 50,000 Salvadorans directly involved in gangs and up to half a million more, out of a population of 6 million, who are economically dependent on them”183. The result is a murder rate that is twenty times higher than the US and ninety times higher than Great Britain184.

The combination of American funding of Central American civil wars and mass deportations of Central Americans with criminal convictions and gang affiliations to war-torn countries with weak state institutions resulted in the violence driving today’s asylum-seekers185. The gang networks that have now spread through the Northern Triangle “originat[ed] in the Salvadoran refugee and immigrant communities of Los Angeles in the 1980s, [and] Mara Salvatrucha (MS or MS-13) and the 18^th Street gang (Calle 18) emerged largely in US jails, as immigrant detainees and inmates were confronted, and challenged, by US prison gangs” and were transplanted in Central America when more than 67,000 immigrants were deported186. Rather than effective transitional justice to hold individuals to account for war crimes or reconstruct social norms, the cycle of violence begun in the civil wars continues as “children face[] extreme levels of violence on a near-daily basis” (internal quotations omitted)187188. Worsening a crisis enabled and escalated by the US, Central American children were left behind by parents fleeing to the US during civil wars, creating a generation gap that facilitated gang recruitment and incentivized children to lean on gangs, rather than families, for support189. Those resisting gang recruitment by fleeing north have been denied protection under US asylum law, leaving young men and boys with still fewer options190.

Available Legal Responses to Today’s Central American Asylum-Seekers

In light of the US’s above-detailed role in creating the current wave of asylum-seekers from the Northern Triangle and difficulties fitting these asylum-seekers in the existing asylum law paradigm, the US is has three fundamental options in how it can respond to the ongoing migration crisis. The first option is to change nothing and allow cases to be heard one-by-one through immigration courts, wherein they would be adjudicated on an individual basis and applicants would be admitted or denied asylum on the basis of how well their specific case conformed to asylum law. While this is the simplest concept of the three, it is unlikely to be either politically popular or practically feasible because of the magnitude of asylum applications: there were 280,000 pending asylum cases at the end of 2017, and there is currently a backlog of over a million active cases in US immigration courts, even as Immigration and Customs Enforcement arrests over 4,000 undocumented immigrants without criminal records for deportation each month191.

The second available approach is that of the Trump administration: attempt to deport undocumented migrants currently in the US, narrow the parameters for successful asylum claims, and deter asylum-seekers from making the journey north to file claims in the first place192. Despite the popularity of this approach among right-wing politicians and voters, the continued arrivals at the US-Mexico border in spite of lowered chances of successful asylum claims does not bode well for this policy193. Those who advance a closed-boarder policy rarely understand the violence from which these migrants are fleeing and the risk to which they expose themselves on the migrant trail to arrive in the US, both of which testify to the fact that migrants will continue to arrive regardless of the obstacles placed before them. Asylum-seekers travelling to the US via la Bestia, the notoriously dangerous network of trains frequently ridden by migrants on their way north, have decided that traveling a route known for “hundreds of attacks, of people beaten to a pulp, of murder, of women screaming while they were raped” was safer than remaining in their home countries194. Such desperate individuals are unlikely to be deterred in their search for safety by narrowed asylum laws.

This leaves the third viable option: the creation of a legal carve-out to accommodate asylum-seekers arriving from the Northern Triangle. The surge of migrants arriving from El Salvador, Guatemala, and Honduras today are similar to the beneficiaries of IMRAA and SIV in that the violence driving them to the US border is a direct result of US actions, beginning with sponsorship of civil wars and continuing with mass deportations of gang-affiliated individuals195196. The overburdened immigration court system, Central American migrants, and migrants’ prospective US employers would all benefit from a simplified process by which asylum-seekers could apply for legal residency and work permits, mirroring the situation that created the CAA and NACARA197198199. Such a targeted, streamlined legislative approach could provide a solution for much of the immigration system’s backlog, which affects not only asylum-seekers from Central America but those who fall within the regular parameters of immigration and asylum law, as well as ameliorating much of the human toll of an overly complicated and ineffective immigration system, such as family separations and deportations in mixed-status families. A carve-out remedy would not require a change to the existing asylum concept; asylum could continue as a limited entitlement and would not have to be redefined in such a way that could open the metaphorical floodgates to considering all individuals suffering in their home countries as potential refugees200.

The circumstances of contemporary asylum-seekers from the Northern Triangle is deeply analogous to those of Cubans fleeing the Castro regime at the time the CAA was created. Cubans fled not only due to economic difficulties, but to “protect their lives and fundamental liberties,” and embarked on trips from Cuba to Florida in spite of the frequent fatalities on these journeys201. This influx of migrants prompted the US to create the CAA as a means of regularizing Cuban immigration, since the process of obtaining an immigrant visa was a nearly impossible task for Cubans desperate to leave their homeland202. A major secondary aim of the CAA was to address the “ever increasing, unemployable Cuban population,” which wanted to work but could not readily obtain legal permission to do so203.

Consider the parallels to current migrants from the Northern Triangle: Though poverty reaches 66.5% and extreme poverty hovers around 46%, individuals are not only fleeing economic difficulties204. Instead, they are primarily fleeing countries in which 85% of interviewees reported living in a neighborhood controlled by gangs or other violent criminal groups, and 62% reported being confronted with dead bodies in their neighborhoods, often on a weekly basis—undoubtedly, these individuals arrived at the US border with the goal of “protect[ing] their lives and fundamental liberties” like Cubans before them205206. The inability or unwillingness of authorities to protect individuals threatened by gangs means that many migrants must flee for their lives, making the lengthy process of obtaining a migrant visa in their home country wholly unrealistic207. Central American migrants have increasingly arrived in the US illegally in a bid to escape their homelands, creating an “ever increasing, unemployable” population working without protections and paid off the books208.

The obvious disparity between Central American migrants and their Cuban predecessors, despite their strikingly similar circumstances, is political. During the 1960s in particular, the US was locked in a bitter rivalry with the Castro regime, which it correctly perceived as a threat to human rights and democracy in the Western Hemisphere209. US aid in Central America was distributed to the nominal right-wing governments through the Cold War, however210211. Yet the creation of a unique legislative policy does not require the US to renounce its former actions, as the governments it backed are no longer those in power, having been replaced by at least nominally democratic ones after peace accords were signed212. President Trump’s plan to designate drug trafficking organizations as terrorist organizations would further bolster any unique plan for migrants fleeing from these groups and their strongholds in the Northern Triangle213.

Further complicating any proposed CAA- or NACARA-style solution to the current migration crisis is the longstanding perception that the acceptance of migrants from Central America symbolizes the opening of the floodgates to all desperate and poor people who wish to come to the US214. This is plainly unwarranted. As stated above, an express purpose of such a specific solution for asylum-seekers from the Northern Triangle would be to preserve the rarity of the asylum entitlement; in other words, a narrowly-tailored approach to this wave of migration would actively prevent the floodgates from opening215. Both the CAA and NACARA initiated widespread litigation from individuals outside Cuba and Nicaragua challenging these specific solutions on equal protection, and the resulting precedent provides a robust defense against any equal protection litigation that would ensue following the passage of a targeted solution to the wave of Central American asylum-seekers. Courts have also proven stringent in their interpretation of NACARA in particular, holding that the statute’s grant of more expansive protections to Nicaraguans and Cubans than to other groups of individuals fleeing communist regimes satisfied the rational-basis test applied to equal protection challenges to immigration classifications and that Congress had a sufficient basis for differentiating between immigrants from various countries within the same statute216.

The peculiar treatment of certain groups of migrants has been reaffirmed repeatedly by courts to prevent individuals from all countries claiming the simpler, better-channeled paths to permanent residency or employment that Congress has seen fit to design for particular classes of individuals. In Villagrana Maldonado v. Gonzales, the Ninth Circuit held that a petitioner’s claim that he was denied equal protection because he was required to meet standards not imposed on individuals covered by NACARA lacked merit because “NACARA is rationally related to a legitimate government purpose”217. Likewise, the court in Ram v. I.N.S. held that “exempting aliens from specific war-torn countries” from rules imposed on asylum-seekers from other countries did not violate the latter’s equal protection rights218. Because “Congress had a rational reason for providing special-rule cancellation for aliens from only certain countries,” migrants from outside those countries were not entitled to similar rule cancellation219. As the court stated in Moreno-Estrada v. Ashcroft, the contention that favoring certain aliens over others violates equal protection fails as long as the act favoring certain aliens satisfies the rational basis test, which an immigration act virtually always does because of Congress’s plenary power over immigration220.

No floodgates were opened by the creation of special rules for individuals fleeing Nicaragua and Cuba, and none would be opened by a similarly specific designation for those fleeing the Northern Triangle today. Instead, a legislative act tailored to the needs of migrants from the Northern Triangle would conform to an established tradition of creating particular immigration rules for populations fleeing risks created by the US and groups who do not easily fit within the established asylum paradigm. This keeps the floodgates closed by accommodating practical needs of both the migrants in question and the overburdened immigration system without permanently expanding the concept of the asylum entitlement. The doors that would be opened by such an act are those of family reunification, employment, and opportunity for asylum-seekers and Americans alike.

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Acknowledgements

This article was written under the direct supervision of Professor Mary Holper of Boston College Law School.

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Endnotes

Title note: “Una vida mejor,” translated as “a better life” is a shorthand justification given on the migrant trails from Central America to the US-Mexico border when asylum-seekers are asked why they left their homelands. Oscar Martinez, The Beast 1, 2014.

[1] Sophia Lee, A Shifting Border Policy, World Magazine, Oct. 1, 2019, at 2.

2.) Id. at 3-16.

3.) Id. at 2-3.

4.) Convention and Protocol Relating to the Status of Refugees; Article 33.1 of the Convention, 189 U.N.T.S. 150, 176 (1954).

5.) Id.

6.) Asylum, 8 U.S.C.A. § 1158 (2019).

7.) Id.

8.) Id.

9.) Id.

10.) Deborah Anker, Law of Asylum in the US § 3:19 (2019 ed.).

11.) David Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, Int’l Migration and Global Justice, 2006 at 807.

12.) Id. at 806.

13.) Id. at 806.

14.) Id. at 806.

15.) Id. at 807-08.

16.) Id. at 808.

17.) Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989).

18.) Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295, 296 (2007).

19.) Deborah Anker, Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment, 19 N.Y.U. Rev. L. & Soc. Change 433, 454 (1993).

20.) Gutierrez-Olivares v. Mukasey, 533 F.3d 946, 949 (8th Cir. 2008).

21.) Njong v. Whitaker, 911 F.3d 919, 922 (8th Cir. 2018).

22.) Gutierrez-Olivares v. Mukasey, 533 F.3d 946, 949 (8th Cir. 2008).

23.) Njong v. Whitaker, 911 F.3d 919, 922 (8th Cir. 2018).

24.) Id.

25.) Asylum, 8 U.S.C.A. § 1158 (2019).

26.) Matter of M-E-V-G, 26 I. & N. Dec. 227, 227 (BIA 2014).

27.) Id.

28.) Matter of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014).

29.) Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).

30.) Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).

31.) Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016).

32.) Matter of M-E-V-G, 26 I. & N. Dec. 227, 227 (BIA 2014).

33.) Matter of LEA, 27 I. & N. Dec. 581, 586 (U.S. Att’y Gen. 2019).

34.) Matter of LEA, 27 I. & N. Dec. 581, 586 (U.S. Att’y Gen. 2019).  

35.) Matter of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014).

36.) Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).

37.) Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).

38.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 591 (2019).

39.) Id. at 591.

40.) Id. at 594.

41.) Id. at 595.

42.) Am. Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal. 1991).

43.) American Baptist Churches v. Thornburgh (ABC) Settlement Agreement, U.S. Citizenship and Immigration Services, http://www.uscis.gov/laws/legal-settlement-notices/american-baptist-churches-v-thornburgh-abc-settelement-agreement.

44.) Am. Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal. 1991).

45.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 595 (2019).

46.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 594 (2019).

47.) Asylum, 8 U.S.C.A. § 1158 (2019).

48.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 591-92 (2019).

49.) Sophia Lee, A Shifting Border Policy, World Magazine, Oct. 1, 2019, at 2.

50.) Id. at 2.

51.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 593 (2019).

52.) Sophia Lee, A Shifting Border Policy, World Magazine, Oct. 1, 2019, at 1-16.

53.) David Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, Int’l Migration and Global Justice, 2006 at 803-09.

54.) David Greene, President Trump Tells Asylum Seekers That ‘Our Country Is Full.’ Is It?, NPR, Apr. 15, 2019.

55.) Sophia Lee, A Shifting Border Policy, World Magazine, Oct. 1, 2019, at 5-6.

56.) Id. at 6.

57.) Id. at 6.

58.) Id. at 3-4.

59.) Id. at 6-7.

60.) Id. at 11-12.

61.) Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295, 296 (2007).

62.) Deborah Anker, Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment, 19 N.Y.U. Rev. L. & Soc. Change 433, 435 (1993).

63.) Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295, 301 (2007).

64.) Id. at 329.

65.) Deborah Anker, Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment, 19 N.Y.U. Rev. L. & Soc. Change 433, 446 (1993).

66.) Id. at 448-57.

67.) Id. at 454.

68.) David Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, Int’l Migration and Global Justice, 2006 at 808.

69.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 597-98 (2019).

70.) Deborah Anker, Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment, 19 N.Y.U. Rev. L. & Soc. Change 433, 435 (1993).

71.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 593 (2019).

72.) Oscar Martinez, A History of Violence XIX (2016).

73.) Id. at 189.

74.) Oscar Martinez, The Beast 1 (2014).

75.) Id. at XIII.

76.) Id. at XII.

77.) David Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, Int’l Migration and Global Justice, 2006 at 808.

78.) Asylum, 8 U.S.C.A. § 1158 (2019).

79.) Matter of S-E-G, 24 I. & N. Dec. 579 (BIA 2008).

80.) Sophia Lee, A Shifting Border Policy, World Magazine, Oct. 1, 2019, at 2.

81.) Sofia Martinez, What Central American Asylum-Seekers Are Fleeing: Today’s Migrant Flow Is Different, The Atlantic, June 26, 2018 at 3.

82.) Matter of S-E-G, 24 I. & N. Dec. 579 (BIA 2008).

83.) Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. 2009).

84.) Id.

85.) Matter of S-E-G, 24 I. & N. Dec. 579 (BIA 2008).

86.) Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016).

87.) Id.

88.) Matter of S-E-G, 24 I. & N. Dec. 579 (BIA 2008).

89.) Sofia Martinez, What Central American Asylum-Seekers Are Fleeing: Today’s Migrant Flow Is Different, The Atlantic, June 26, 2018 at 3.

90.) Matter of LEA, 27 I. & N. Dec. 581, 586 (U.S. Att’y Gen. 2019).

91.) Oscar Martinez, The Beast 15-16, 2014.

92.) Matter of LEA, 27 I. & N. Dec. 581, 586 (U.S. Att’y Gen. 2019).

93.) Id.

94.) Id.

95.) Adriana Beltran, Children and Families Fleeing Violence in Central America, Feb. 21, 2017 at 3.

96.) Oscar Martinez, A History of Violence XIV, 2017.

97.) Jaya Ramji-Nogales, Designing Bespoke Transitional Justice, 32 Mich. J. Int’l. L. 1, 2 (2010).

98.) Id. at 2.

99.) Oscar Martinez, The Beast XI-XIV (2014).

100.) Id. at XIV.

101.) Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).

102.) Asylum, 8 U.S.C.A. § 1158 (2019).

103.) Matter of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014).

104.) Id.

105.) Id.

106.) Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).

107.) Id.

108.) Id.

109.) Id.

110.) Adriana Beltran, Children and Families Fleeing Violence in Central America, Feb. 21, 2017 at 3.

111.) Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).

112.) Id.

113.) Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).

114.) Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).

115.) Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016).

116.) Matter of S-E-G, 24 I. & N. Dec. 579 (BIA 2008).

117.) Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).

118.) Migration and Refugee Assistance Act, Pub.L. 87-510, § 2, June 28, 1962, 76 Stat. 121, 121-124 (1962).

119.) Memorandum: Migration and Refugee Assistance Act of 1962, Clinton White House Archives (Jan. 18, 2001), https://clintonwhitehouse5.archives.gov/library/hot_releases/January_18_2001_7.html.

120.) Indochina Migration and Refugee Assistance Act of 1975, Pub.L. 94-23, May 23, 1975, 89 Stat. 87 (1975).

121.) H.R. 6755 (94^th): Indochina Migration and Refugee Assistance Act, GovTrack (Oct. 11, 2018), https://www.govtrack.us/congress/bills/94/hr6755/summary#oursummary.

122.) Indochina Migration and Refugee Assistance Act of 1975, Pub.L. 94-23, May 23, 1975, 89 Stat. 87 (1975).

123.) Cuban Adjustment Act, Pub.L. 89-732, Nov. 2, 1966, 80 Stat. 1161 (1966).

124.) Leslie Perez, Are Cubans Unjustly Favored Relative to Non-Cuban Immigrants? An Understanding of the Communist Reality in Cuba and the Legitimacy of the Cuban Adjustment Act, 22 ILSA J. Int’l & Comp. L. 563, 571 (2016).

125.) Id. at 571.

126.) Id. at 571.

127.) Asylum, 8 U.S.C.A. § 1158 (2019).

128.) Leslie Perez, Are Cubans Unjustly Favored Relative to Non-Cuban Immigrants? An Understanding of the Communist Reality in Cuba and the Legitimacy of the Cuban Adjustment Act, 22 ILSA J. Int’l & Comp. L. 563, 574 (2016).

129.) Id. at 571.

130.) District of Columbia Appropriations Act, 1998, 8 U.S.C.A. §1255 Note, Pub.L. 105-100, Nov. 19, 1997, 111 Stat. 2160.

131.) Lourdes Rodriguez, Understanding the Nicaraguan Adjustment and Central American Relief Act, 5 ILSA J. Int’l & Comp. L. 501, 502 (1999).

132.) Id. at 503.

133.) District of Columbia Appropriations Act, 1998, 8 U.S.C.A. §1255 Note, Pub.L. 105-100, Nov. 19, 1997, 111 Stat. 2160.

134.) Villagrana Maldonado v. Gonzales, 131 Fed.Appx. 556 (9th Cir. 2005).

135.) Id. at 502.

136.) Leslie Perez, Are Cubans Unjustly Favored Relative to Non-Cuban Immigrants? An Understanding of the Communist Reality in Cuba and the Legitimacy of the Cuban Adjustment Act, 22 ILSA J. Int’l & Comp. L. 563, 564 (2016).

137.) Lourdes Rodriguez, Understanding the Nicaraguan Adjustment and Central American Relief Act, 5 ILSA J. Int’l & Comp. L. 501, 503 (1999).

138.) Robert McKnight, The Impact of the Mariel Boatlift Still Resonates in Florida After 38 Years, Miami Herald, Apr. 18, 2018

139.) Austin Fragoman, Jr., Immigration Legislation Handbook § 2.23 (2019).

140.) Marianne Twu, A Sanctuary for Those Who Serve: United States Iraqi Special Immigrant Visa Programs, 35 N.C. J. Int’l L. & Com. Reg. 724, 730 (2010).

141.) Id. at 725.

142.) Migration and Refugee Assistance Act, Pub.L. 87-510, § 2, June 28, 1962, 76 Stat. 121, 121-124 (1962).

143.) Asylum, 8 U.S.C.A. § 1158 (2019).

144.) Indochina Migration and Refugee Assistance Act of 1975, Pub.L. 94-23, May 23, 1975, 89 Stat. 87 (1975).

145.) H.R. 6755 (94^th): Indochina Migration and Refugee Assistance Act, GovTrack (Oct. 11, 2018), https://www.govtrack.us/congress/bills/94/hr6755/summary#oursummary.

146.) Marianne Twu, A Sanctuary for Those Who Serve: United States Iraqi Special Immigrant Visa Programs, 35 N.C. J. Int’l L. & Com. Reg. 724, 725-26 (2010).

147.) Leslie Perez, Are Cubans Unjustly Favored Relative to Non-Cuban Immigrants? An Understanding of the Communist Reality in Cuba and the Legitimacy of the Cuban Adjustment Act, 22 ILSA J. Int’l & Comp. L. 563, 571-72 (2016).

148.) Lourdes Rodriguez, Understanding the Nicaraguan Adjustment and Central American Relief Act, 5 ILSA J. Int’l & Comp. L. 501, 503 (1999).

149.) Leslie Perez, Are Cubans Unjustly Favored Relative to Non-Cuban Immigrants? An Understanding of the Communist Reality in Cuba and the Legitimacy of the Cuban Adjustment Act, 22 ILSA J. Int’l & Comp. L. 563, 571 (2016).

150.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 593 (2019).

151.) David Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, Int’l Migration and Global Justice, 2006 at 807.

152.) Deborah Anker, Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment, 19 N.Y.U. Rev. L. & Soc. Change 433, 454 (1993).

153.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 593 (2019).

154.) David Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, Int’l Migration and Global Justice, 2006 at 804.

155.) Douglas Farah, Papers Show US Role in Guatemalan Abuses, Int’l Journal of Health Services, 897, 897 (1999).

156.) Heather Ewing, A Perfect Storm: How the Guatemalan Civil War, US Immigration Policy and Drug Trafficking Organizations Debilitated the Guatemalan State (May 11, 2018) (unpublished M.A. thesis, Vanderbilt University)(on file with Vanderbilt University).

157.) Douglas Farah, Papers Show US Role in Guatemalan Abuses, Int’l Journal of Health Services, 897, 898 (1999).

158.) Heather Ewing, A Perfect Storm: How the Guatemalan Civil War, US Immigration Policy and Drug Trafficking Organizations Debilitated the Guatemalan State (May 11, 2018) (unpublished M.A. thesis, Vanderbilt University)(on file with Vanderbilt University).

159.) Douglas Farah, Papers Show US Role in Guatemalan Abuses, Int’l Journal of Health Services, 897, 897 (1999).

160.) Id. at 898.

161.) Id. at 898.

162.) Heather Ewing, A Perfect Storm: How the Guatemalan Civil War, US Immigration Policy and Drug Trafficking Organizations Debilitated the Guatemalan State (May 11, 2018) (unpublished M.A. thesis, Vanderbilt University)(on file with Vanderbilt University).

163.) Id.

164.) Id.

165.) Id.

166.) Id.

167.) Id.

168.) Oscar Martinez, A History of Violence 33, 2017.

169.) Id. at 33.

170.) Cara McKinney, Twelve Years a Terror: US Impact in the 12-Year Civil War in El Salvador, Int’l ResearchScape Journal, Vol. 2, Art. 5 (2015).

171.) Id.

172.) Id.

173.) Id.

174.) Id.

175.) Raymond Bonner, America’s Role in El Salvador’s Deterioration, The Atlantic, Jan. 20, 2018, at 3.

176.) Cara McKinney, Twelve Years a Terror: US Impact in the 12-Year Civil War in El Salvador, Int’l ResearchScape Journal, Vol. 2, Art. 5 (2015).

177.) Raymond Bonner, America’s Role in El Salvador’s Deterioration, The Atlantic, Jan. 20, 2018, at 3.

178.) Id. at 2.

179.) Id. at 2-3.

180.) Id. at 3.

181.) Id. at 3.

182.) Id. at 3-4.

183.) Oscar Martinez, A History of Violence XIII, 2017.

184.) Id. at XIII.

185.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 598-99 (2019).

186.) Id. at 598-99.

187.) Jaya Ramji-Nogales, Designing Bespoke Transitional Justice, 32 Mich. J. Int’l. L. 1, 2 (2010).

188.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 598 (2019).

189.) Id. at 598-99.

190.) Matter of S-E-G, 24 I. & N. Dec. 579 (BIA 2008).

191.) Sophia Lee, A Shifting Border Policy, World Magazine, Oct. 1, 2019, at 2-3.

192.) Id. at 1-16.

193.) John Gramlich, How Americans see illegal immigration, the border wall and political compromise, Pew Research Center, Jan. 16, 2019, at 5.

194.) Oscar Martinez, The Beast 27, 2014.

195.) H.R. 6755 (94^th): Indochina Migration and Refugee Assistance Act, GovTrack (Oct. 11, 2018), https://www.govtrack.us/congress/bills/94/hr6755/summary#oursummary.

196.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 598-99 (2019).

197.) Sophia Lee, A Shifting Border Policy, World Magazine, Oct. 1, 2019, at 2-3.

198.) Leslie Perez, Are Cubans Unjustly Favored Relative to Non-Cuban Immigrants? An Understanding of the Communist Reality in Cuba and the Legitimacy of the Cuban Adjustment Act, 22 ILSA J. Int’l & Comp. L. 563, 565-68 (2016).

199.) Lourdes Rodriguez, Understanding the Nicaraguan Adjustment and Central American Relief Act, 5 ILSA J. Int’l & Comp. L. 501, 502-04 (1999).

200.) David Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, Int’l Migration and Global Justice, 2006 at 804-07.

201.) Leslie Perez, Are Cubans Unjustly Favored Relative to Non-Cuban Immigrants? An Understanding of the Communist Reality in Cuba and the Legitimacy of the Cuban Adjustment Act, 22 ILSA J. Int’l & Comp. L. 563, 564-68 (2016).

202.) Id. at 571.

203.) Id. at 571.

204.) Jake Johnston & Stephan Lefebvre, Honduras Since the Coup: Economic and Social Outcomes, Center for Economic and Policy Research, 1, 10 (2013).

205.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 598 (2019).

206.) Leslie Perez, Are Cubans Unjustly Favored Relative to Non-Cuban Immigrants? An Understanding of the Communist Reality in Cuba and the Legitimacy of the Cuban Adjustment Act, 22 ILSA J. Int’l & Comp. L. 563, 564-68 (2016).

207.) Oscar Martinez, The Beast 15-16, 2014.

208.) Leslie Perez, Are Cubans Unjustly Favored Relative to Non-Cuban Immigrants? An Understanding of the Communist Reality in Cuba and the Legitimacy of the Cuban Adjustment Act, 22 ILSA J. Int’l & Comp. L. 563, 571 (2016).

209.) Id. at 563-64.

210.) Raymond Bonner, America’s Role in El Salvador’s Deterioration, The Atlantic, Jan. 20, 2018, at 2-3.

211.) Douglas Farah, Papers Show US Role in Guatemalan Abuses, Int’l Journal of Health Services, 897, 897-99 (1999).

212.) Raymond Bonner, America’s Role in El Salvador’s Deterioration, The Atlantic, Jan. 20, 2018, at 4.

213.) Rachel Martin, Trump Aims to Designate Mexican Drug Cartels as Terrorist Groups, NPR, Nov. 28, 2019.

214.) Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 Denv. L. Rev. 585, 593 (2019).

215.) David Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, Int’l Migration and Global Justice, 2006 at 804-07.

216.) Morales-Salazar v. I.N.S., 213 F.3d 642 (9th Cir. 2000).

217.) Villagrana Maldonado v. Gonzales, 131 Fed.Appx. 556 (9th Cir. 2005).

218.) Ram v. I.N.S., 243 F.3d 510 (9th Cir. 2001).

219.) Delgado Bernal v. Gonzales, 177 Fed.Appx. 644 (9th Cir. 2006).

220.) Moreno-Estrada v. Ashcroft, 92 Fed.Appx. 163 (9th Cir. 2004).