Monday, January 30, 2017

The impact of Trump's executive orders on Salvadorans fleeing their country

El Salvador has one of the highest percentages of its native born population currently living in the United States.   Estimates vary, but if there are approximately 2 million people originally born in El Salvador living in the US, then approximately 1 in 4 people alive who were born in El Salvador live in the US.  As a result, the actions of new US president Donald Trump on immigration and border security have major implications for El Salvador.

Although media attention has focused on the impact of Trump's executive orders from January 25 and January 27 on Muslim immigrants and refugees, the effects of the orders are more far-ranging and will have immediate impacts on Salvadoran migration.

There is currently a significant flow of children and families from El Salvador towards the US, seeking asylum as they flee violence and gangs in the country.   Nearly 14,000 Salvadoran children and family members were detained at the US border in October and November 2016 alone.  

Under policy as it existed under the Obama administration, such families were detained until they could be given a "credible fear" interview to determine if they reasonably feared harm if returned to their homes.   If they passed that interview, the families would be placed into regular deportation proceedings where they could prosecute their claims for asylum.   While their cases were pending, children and families could often be released on "parole" usually with electronic ankle bracelet monitoring or on a monetary bond of $5000 or more, to ensure that they appeared for future proceedings.  (Trump has dismissively called such parole of migrants as "catch and release.")

Trump's Executive Order on Border Security and Immigration Enforcement Improvements dated January 25, 2017 makes changes.    First, he orders that more detention facilities be built so that migrants can be held and not released:
Sec. 5.  Detention Facilities.  (a)  The Secretary shall take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico.
Second, he seeks additional asylum officers and immigration judges to rapidly adjudicate asylum claims:
5(b)  The Secretary shall take all appropriate action and allocate all legally available resources to immediately assign asylum officers to immigration detention facilities for the purpose of accepting asylum referrals and conducting credible fear determinations pursuant to section 235(b)(1) of the INA (8 U.S.C. 1225(b)(1)) and applicable regulations and reasonable fear determinations pursuant to applicable regulations.
(c)  The Attorney General shall take all appropriate action and allocate all legally available resources to immediately assign immigration judges to immigration detention facilities operated or controlled by the Secretary, or operated or controlled pursuant to contract by the Secretary, for the purpose of conducting proceedings authorized under title 8, chapter 12, subchapter II, United States Code.
Third, he orders the Secretary of Homeland Security to make sure migrants are detained and not released on parole except for "urgent humanitarian reasons" or where there is a "significant public benefit":
Sec. 6.  Detention for Illegal Entry.  The Secretary shall immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law.  The Secretary shall issue new policy guidance to all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the INA, including the termination of the practice commonly known as "catch and release," whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law.


Sec. 11.  Parole, Asylum, and Removal.  It is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.
(a)  The Secretary shall immediately take all appropriate action to ensure that the parole and asylum provisions of Federal immigration law are not illegally exploited to prevent the removal of otherwise removable aliens.
(b)  The Secretary shall take all appropriate action, including by promulgating any appropriate regulations, to ensure that asylum referrals and credible fear determinations pursuant to section 235(b)(1) of the INA (8 U.S.C. 1125(b)(1)) and 8 CFR 208.30, and reasonable fear determinations pursuant to 8 CFR 208.31, are conducted in a manner consistent with the plain language of those provisions.
(c)  Pursuant to section 235(b)(1)(A)(iii)(I) of the INA, the Secretary shall take appropriate action to apply, in his sole and unreviewable discretion, the provisions of section 235(b)(1)(A)(i) and (ii) of the INA to the aliens designated under section 235(b)(1)(A)(iii)(II).
(d)  The Secretary shall take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.
The net impact of this Executive Order is that we should expect to see increasing numbers of mothers and children from El Salvador and other Central American countries imprisoned in privately run detention centers, waiting for their petitions for asylum to be heard.   Mothers and children, literally fleeing for their lives, will be imprisoned in the country where they sought shelter.   Please note that we saw these images under the Obama administration as well, which hoped that the use of detention centers would discourage the flow of family asylum seekers.   But now the use of detention seems poised to increase as fast as the stock of the private prison companies.

Under the Obama administration, there was a small program to process families displaced by violence as refugees in connection with the UN High Commissioner on Refugees.    Families who were identified could receive shelter in Costa Rica before a small number might be resettled as refugees in the US.    Under Trump's most recent executive order, any refugee admissions under this or any other program are suspended for four months:

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES dated January 27, 2017

    Sec. 5.  Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017.  (a)  The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days.  During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.  Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures.  Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States....
It's not clear whether the Central America program would be restarted after that 120 day period.

US refugee policy has fixed annual numerical caps on a global basis.    Trump's executive order lowers the current cap to 50,000:
   (d)  Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
Since that cap has to cover all the existing refugee needs in the world, the number of slots open to Central American refugees would necessarily decrease.   In addition, Trump's decision to prioritize refugee claims for persons claiming religious persecution as a minority religion, may also diminish the chances of any refugee from El Salvador ever making his or her way to the US.




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