Many policymakers, including Sen. Roy Blunt (R-MO), have made a suggestion that sounds like an easy solution to the child migrant crisis: children shouldn't be coming to the US to seek asylum, because they should be applying for asylum in their home countries.
That's close to something the US might be planning to do. Rumors circulated last week that the White House was going to start a program in Honduras to take in refugee applications. But it totally misses the point of asylum, which is that people apply for protection when they've already left for another country.
Here are the six things you need to know about how asylum works, and how it relates to the current crisis.
1) Refugee status is for people applying in their home countries; asylum is for people applying here
Under US law, the two main forms of humanitarian protection an individual can receive are refugee status, and asylum. The difference between the two is where the protection is being granted.
If someone goes to the US embassy in his or her home country and applies for protection, he or she is considered for refugee status. The number of refugees the US can accept from any given region are capped each year. (Under the current caps, the US can accept 5,000 refugees from Latin America and the Caribbean — including Cuba. There's also an additional allotment of 2,000 emergency refugee slots worldwide.)
If someone comes to the US without legal papers and then applies for protection — anytime within a year of when he or she enters — he or she is considered for asylum. Asylum exists because, in the words of law professor Karen Musalo of the University of California-Hastings, "people fleeing persecution don't have the luxury of obtaining legal documents." So while people seeking asylum don't have legal papers when they get to the US, they're following a legal process when they arrive. In fact, if the US tried to send them back and make them apply for refugee status from home, it would violate international law. There's no limit on how many individuals can get asylum a year, but the burden of proof is more or less on the applicant to prove that he or she qualifies.
2) Refugee and asylum applicants have to show they've been persecuted
To get either refugee status or asylum, an individual has to prove two things:
- He or she has been persecuted
- The persecution was because of his/her race, religion, nationality, political opinion, or membership in a particular social group.
Many advocates, led by the UN Office of the High Commissioner on Refugees (UNHCR), have argued that 58 percent of children who have come to the US from Central America qualify for "international protection" of some form, because they're under threat. But not all of those children qualify for refugee status or asylum as the US defines it. The question is whether the threat that Central American children face from criminal gangs rises to the level of persecution.
3) The US cares more about persecution by governments than persecution by gangs
On Friday, President Obama threw cold (or at least tepid) water on rumors of a new program that would allow Honduran young people to apply for refugee status without leaving Honduras, by talking about how narrow the standards for refugee status really are:
Typically, refugee status is not granted just based on economic need or because a family lives in a bad neighborhood or poverty. It's typically defined fairly narrowly — the state, for example, that was targeting political activists and they need to get out of the country for fear of prosecution or even death.
That's not an inaccurate description — after all, an activist targeted by the government would certainly be persecuted because of her political opinions. But it avoids the important question when it comes to Central American children seeking asylum: does persecution have to come from the government? Or does it count as persecution if someone's being targeted by another group — like a criminal gang — and the government's just unable to protect him?
That's what's happening to many of the children and families coming from Central America — especially Honduras and El Salvador — to the US. As Amanda Taub wrote for Vox:
The street gangs known as "maras" - M-18 and Mara Salvatrucha, or MS-13 - target kids for forced recruitment, usually in their early teenage years, but sometimes as young as kindergarten. They also forcibly recruit girls as "girlfriends," a euphemistic term for a non-consensual relationship that involves rape by one or more gang members.
If children defy the gang's authority by refusing its demands, the punishment is harsh: rape, kidnapping, and murder are common forms of retaliation. Even attending school can be tremendously dangerous, because gangs often target schools as recruitment sites and children may have to pass through different gangs' territories, or ride on gang-controlled buses, during their daily commutes.
UNHCR thinks this counts as persecution. Its guidebook for child asylum claims is clear: "the recruitment by a non-State armed group of any child below the age of 18 years would be considered persecution."
But the US government disagrees. The Board of Immigration Appeals, which sets the standards for immigration court cases, has told judges not to approve asylum claims just based on fear of persecution by a gang.
"If, say, the ruling party of Iran tries to recruit you, and you say no, and then they try to kill you, you can get asylum," says asylum lawyer Jason Dzubow. But "if a gang tries to recruit you, and you say no, and now the gang wants to kill you, that's not a basis for asylum."
4) Children can still qualify if their families have been targeted
But even though being threatened by a gang doesn't qualify someone for asylum on its own, a child can still qualify for asylum if he or she proves that the gang was targeting him or her based on one of the five categories above: race, religion, political beliefs, nationality, or membership in a particular social group.
The "social group" standard is the most flexible — and some judges will grant it to children if the gang has targeted their relatives, as well. Asylum lawyer Dzubow says, "If the gang wants to kill everyone in my family, including me, family is a 'particular social group'" — one of the five categories of persecution that are protected in asylum law. "And so I might get asylum for that reason."
It's also possible for a child to argue that he was targeted by the gang because of his religious beliefs, or couldn't join the gang — and therefore risked death — due to religion.
Whether such a claim succeeds is going to depend on the asylum officer or judge looking over the case. It's also going to depend on whether or not the applicant is found to be credible. Applicants lose credibility if there are holes in their story, or if what they say during an interview or hearing contradicts what they've written on their application — even when it comes to details like dates and chronology. In one asylum hearing I witnessed in 2008, a judge ruled that two Honduran teenagers' stories of fleeing gang threats were not credible, because they mixed up the order in which events happened — and because he didn't believe their claims that if they went back, a greedy grandmother would abuse them for not making enough money in the US.
5) Most children who come to the US aren't actually getting asylum
Even though the government currently makes it easier for children who come to the US unaccompanied to apply for asylum, not many of them do so.
The director of US Citizenship and Immigration Services, Leon Rodriguez, testified to Congress on Tuesday that his agency has gotten 1500 applications for asylum from unaccompanied children from October 2013 to June 2014. Over that period, 108 children have been granted asylum, while 59 were turned down and had to go to immigration court for a last chance.
Furthermore, most unaccompanied children don't formally file their asylum applications until several months after they've arrived in the US. So very few of those cases were from children who had actually come to the US during the last several months.
Children often have other options for legal status that are easier to obtain, like Special Immigrant Juvenile Status. Many of them apply for those instead: 3,900 immigrants applied for Special Immigrant Juvenile Status from October to June. All in all, the number of unaccompanied children who end up receiving asylum in the US is much smaller than the number who come.
6) The US can make it easier to apply for refugee status from home — but they have to keep offering asylum, too
According to news reports last week, the US is considering a program to make it easier for young people in Honduras to apply for refugee status without having to come to the United States first. That's the program that President Obama downplayed the importance of on Friday. And his implication, that the program would only grant refugee status to a few people, is consistent with how programs like this have worked in the past.
As a general rule, programs for what's called "in-country processing" only tend to consider applications from a particular subset of people. After the Vietnam War, for example, an American team evaluated refugee applications from Vietnamese who had been in reeducation camps, had worked for the US government or for a non-governmental organization, or were Amerasian children— i.e. potential children of American soldiers.
Other programs have been even more limited. When the US instituted in-country processing in Haiti in the 1990s, according to law professor Musalo, the US only considered applications from members of the elite: "people who were part of [deposed president Jean-Bertrand] Aristide's government or journalists. High-level people." As a result, she said, only a "miniscule" number of people were allowed into the US.
If the US launches such a program in Honduras, though, it's still on the hook to provide asylum to persecuted Hondurans who come to the US without papers. The obligation to allow people to come to the US and seek asylum is baked into both US and international law.