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Rethinking 'asylum seekers' and 'refugees'

The Guatemalans, Hondurans and Salvadorans fleeing the violence, unemployment and poverty of their homelands (which constitute the Northern Triangle of Central American nations) have largely followed the strategies of their Mexican neighbors. Since 1965, the United States has capped the number of annual immigrants from the Western Hemisphere at 120,000. On the assumption that this meager number would never accommodate their entry, migrants slipped in somewhere along our nearly 2000-mile southern border, agreeing to live in the economic and political shadows. 

Illegal immigration was also prompted by the end of the Bracero program, which until 1964 had allowed seasonal agricultural workers from Mexico to come into this country on temporary visas. Many former Bracero workers simply continued to cross the border. Though the number of unauthorized immigrants fell steadily after 2008, an estimated 10.7 million undocumented immigrants were living in the United States when President Trump took office in 2016. Most were Mexican, and most had been here for more than 10 years. But over a million immigrants without papers were from the Northern Triangle, and this group was growing. 

The lawlessness and extreme poverty in Guatemala, Honduras and El Salvador preceded President Trump. However, Trump’s cruel and erratic immigration policies, including his calls for a wall along our entire southern border, provoked fears in the Northern Triangle that the U.S. border might soon be closed, and so created an urgency to flee among those who felt unsafe and saw no future in their own country. 

As border patrol has grown increasingly stringent across the miles of desert, migrants hoping for a new start in the United States have tended to place their faith in the possibility of entering legally by applying for asylum at a port of entry. This is despite the fact that applying for asylum has been — and continues to be — a long, uncertain, cruel process, often involving detention and family separation, and including a court hearing in which the migrants must, in effect, falsify their stories in order to make them fit the definition of an asylum-seeker or refugee. (A refugee is someone who applies for asylum while in their homeland or a third country, while an asylum seeker applies for asylum at the U.S. border, or even after having entered the U.S.)

Developed by the United Nations in the 1950s, in hindsight for the inadequate responses to those fleeing Nazism, the definition of both refugees and asylum seekers focuses on the violence individuals have suffered, or may be threatened with, as a result of their race, religion, nationality or other group membership. Economic destitution, or the devastation of land due to climate change, are not acceptable causes for seeking asylum. Indeed, while a number of migrants have entered the United States hoping to claim “economic asylum,” there is no legal basis for a court to accept this claim.

Just as important, fears of violence caused by gangs, drug traffickers, domestic abuse, or the corrupt police and judiciary left by failed states, which are the main reasons people are fleeing the Northern Triangle, all remain contested as possible claims for asylum. In 2014, the Board of Immigration Appeals ruled that victims of domestic and gang violence could claim asylum. This ruling was struck down by then Attorney General Jeff Sessions, who used the World War II definition of a refugee to claim that victims of domestic and gang violence were not a “social group.” However, in response to a suit by the ACLU, a federal judge has ruled against the Trump Administration. The Trump administration’s claim that a migrant cannot claim asylum once she or he has crossed the border illegally has also been struck down by the courts.

Unwilling to face legal challenges, and with a backlog of 800,000 cases in U.S. immigration courts, Trump has begun to take extra-judicial actions and enlist the aid of foreign governments. By strong-arming Mexico and Guatemala, he has provisionally created a “Rube Goldberg” system in which Honduran and Salvadoran asylum seekers are now to apply for asylum in Guatemala, while Guatemalans are to follow his new “Remain in Mexico” policy, spending their time in high-crime areas of Mexican cities while awaiting asylum hearings in the U.S.  Fortunately, both countries remain sufficiently democratic that protests and the prospect of elections are already rendering Trump’s harsh deals uncertain. 

With the ever-expanding effects of climate change threatening agriculture, creating water and food shortages, and destabilizing nations around the globe, we need a legal language that accurately describes the straits that are creating increasing numbers of refugees — along with a compassionate and thoughtful process that balances the plight of these refugees with our integrity as a nation.   

Carol Ascher, who lives in Sharon, has published seven books of fiction and nonfiction, as well as many essays and stories.