On a Sunday in the spring, Mariana was at home with her son Jorge, then eleven months old, who was sleeping. She was not expecting anyone, so when she heard people outside her house, Mariana called the police. No answer. Three men, wearing masks, broke into her home. One grabbed Mariana and threw her on the bed, on top of the baby boy, who woke up and began to cry. As the first man raped his mother, the baby continued to cry, annoying the intruders. One of the men picked the baby up and threw him against the wall. He lay on the floor, silent and unconscious, as each man raped his mother. Afterwards, Mariana picked up her son and again called the police, again without success. Four years later, this child does not talk. Loud noises or people arguing cause him great distress.
Mariana and Jorge, Central American refugees, are confined in one of the family “residential” centers that private, for-profit prison corporations operate in Texas via contracts with Immigration Control and Enforcement (ICE).
Mariana does not know the identities of the men who raped her and brutally silenced her child, or who threatened her over the past four years, or who poisoned her dogs so that they could not warn her of intruders. She does not know if any of these men were the same as those who destroyed her small fence while attempting to break into her house. Neither does Mariana know the identities of the men who attacked her ex-boyfriend or who came around her former neighborhood looking for her shortly after she fled her country. She does not know whether her persecutors number three or more.
Without knowing their identities, Mariana can only speculate about the men’s motivations.
The Immigration and Nationality Act (INA) requires a person seeking asylum or withholding of removal to demonstrate that the persecution she fears or has already suffered is on account of race, religion, nationality, membership in a particular social group, or political opinion. Without a nexus between one of these factors and the persecution, the asylum officer issued a “negative reasonable fear” finding for Mariana. The asylum officer also determined that Mariana is not eligible for protection under the Convention Against Torture, because she failed to demonstrate that public officials participated in, or acquiesced to, events that the officer conceded were torture. The same officer did determine, however, that the five-year old, speechless Jorge, through his mother’s testimony, had established a “significant possibility” of success in his claims.yy
Days later, an immigration judge reviewed these findings by asking Mariana – who appeared, blurrily, by videoconference — a series of mostly close-ended questions. The immigration judge affirmed the asylum officer’s negative findings.
At a full hearing on the merits of Mariana’s claim, experts would have testified that perpetrators of murder, rape, and domestic violence in her home frequently enjoy impunity for such crimes. Experts could have detailed the depth of corruption among public officials, including the widespread collusion between these officials and narcotics traffickers and local gangs. At a full hearing, experts would also have supported Mariana’s subjective experience that gangs frequently target single mothers; family and close associates of rival gang members; and people who defy the gangs by reporting criminal activity to the police. Mariana might have proved that she suffered from persecution on account of her membership in a particular social group. But Mariana will not get this hearing.
Let’s assume that the asylum officer and the judge made the correct decision. Because violence, corruption, and collusion are widespread in her country, Mariana and many others are trapped in a legal Catch-22. The worse things are for everyone, the more difficult it is for any given individual to prove that she was singled out for persecution.
Can the U.S. can do nothing to protect Mariana and her son?
No. We are not powerless.
The U.S. could recognize that devastating violence in El Salvador, Guatemala, and Honduras is causing at least as much damage as any hurricane, tsunami, earthquake, volcano, or war, all typical bases for Temporary Protected Status (TPS). It could grant TPS to refugees from these three nations.
Granting TPS is not only the humanitarian option, but also the most financially conservative action that we could make.
1) Taxpayers wouldn’t fill the coffers of prison corporations that boast about growing profits from detention of women and children refugees;
2) The United States Citizenship and Immigration Service would not need to commit so many asylum officers to interview these refugees;
3) The U.S. Department of Homeland Security could turn its attention to removal cases of people who actually do present a danger to the U.S;
4) Immigration judges and court personnel, Department of Justice employees, would not need to adjudicate tens of thousands of these claims.
It would make far more sense to grant protection to Central American refugees with a relatively simple process to of identification and registration, rather than via thousands of lengthy, cumbersome, and expensive individual immigration hearings.
This is a shorter version of a letter I wrote to the Obamas in June, 2016.