Editor’s Note: Originally published at: https://jacobtingen.com/2019/noi-11-why-are-central-american-immigrants-applying-for-asylum-part-1/2505
Jacob Tingen: We’re onto Episode 11. Today we’re going to continue our discussion of asylum, and I’m excited to do that. Asylum, again, is just one of those topics that we deal with a lot here at our law firm. It’s something that we fight for our clients for, we hope to get successful outcomes for them, but we understand that it’s an embattled issue. And there’s a lot of contention not just in the courts but in society right now about asylum and about a lot … and particularly of these Central American asylum seekers. So today we’re going to talk about why people come. We’re going to talk about the immigration court backlog and some of the reasons or justifications that are given for some of the policy decisions that have been made out of the Trump administration, and hopefully get to the root of the real reasons people are coming in record numbers across the US/Mexico border seeking asylum in our country.
Jacob Tingen: So I’m excited to do this one today. Again, we’re going to talk about asylum for several episodes. So here it goes, Nation of Immigrants.
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President Obama: America is a nation of immigrants.
Announcer: A podcast about US immigration law, with your host Jacob Tingen.
Jacob Tingen: Thanks for listening in again. I was checking the news today before I got started with the podcast, and was just kind of reviewing what we talked about yesterday and some of the justifications for the policies that have come out over the summer, making people remain in Mexico while they wait for an asylum decision here in the US, and then how to solve this problem of record numbers of people coming across our Southern border. And I read this article, and it had some interesting reasoning in it, reasoning that I disagree with, but basically what it was saying is that Central American immigrants are coming for economic opportunity only, that they’re aware of our immigration court backlog and essentially taking advantage of it, and getting work documents and weakening our economy, as if they’re doing this on purpose to damage the US.
Jacob Tingen: And that was the perspective of the article I read. And that seems to be some of the justification as you read different comments by different newscasters or pundits, or statements from the Trump administration in particular. It seems that that is the logic behind a lot of the policymaking that’s coming out is that, “Oh, these Central American immigrants, they weaken our country, they’re not helping us. And in fact, they know that they can take advantage of our laws.” And I wanted to just respond to that and take a minute to talk about, again, what’s happening at the border to kind of give you an avatar, if you will, or just kind of a summary of the kinds of people who are coming over and seeking asylum, and just kind of rebut that. Because I don’t think … Well, I know the vast majority of the asylum seekers that I meet don’t want to come here and wait five years for a hearing. And so that’s not their fault. It just so happens that there are large numbers of Central Americans coming because, frankly, they need asylum.
Jacob Tingen: And it’s interesting, this whole remain in Mexico thing. There are groups of immigrants waiting for hearings and they are remaining in Mexico during hearings. I read this morning that a lot of them are having their cases heard in the El Paso immigration court. And I was surprised, I thought they were being spread out to lots of different immigration courts, and maybe they are. But if it’s just El Paso, I think that’s problematic, and I’ll talk about that in a little bit.
Jacob Tingen: But let’s just talk about who these immigrants are. Many of them are educated immigrants who don’t have any other options to come to the US and remain here. Many of them are not educated immigrants, who have low education. Many of them are high school grads, some are college grads. Basically they run the gamut. Overwhelmingly, they do tend to be on the poorer side, so a vulnerable population, even in their own countries.
Jacob Tingen: And so I think … I’m not one to throw out, “They’re white nationalists, and that’s why they oppose immigrants coming to the country,” but I do think that the socioeconomic demographic of people coming across the country definitely plays a role. Like we’ve talked about, when it comes to public charge in the US, part of the justification for denying people entry to our country on public charge basis is that, “Oh, well, they’re too poor to contribute to our country.” And I think that that’s a lot of the justification or reasoning behind some of these policies is we don’t want to accept a bunch of poor immigrants to our country. How are they going to contribute to our society? And that’s an idea that I disagree with. Again, I’m not a huge fan of public charge grounds of inadmissibility. I don’t think that that is a fair reason to keep people out. And so, yeah, I mean, but I do think that that’s part of the reasoning that underlies some of the vitriol, or at least hurdles that are directed toward some of these Central American migrants.
Jacob Tingen: Okay, so let’s talk about some of the reasons that people come and ask for asylum in our country. And I’m going to start by talking about persecution. When somebody comes to my office and they ask, “Hey, what do I do,” and then I inform them about asylum, I tell them they have to prove four things in court. First, they have to prove persecution. Then they have to prove that their government can’t protect them from that persecution. Then they have to prove that they belong to a protected ground, so race, religion, nationality, political opinion, or prove that they belong to a particular social group, that they’re a member of that group. And then finally, fourth, they have to prove something called nexus, which is a connection between that protected ground and the persecution they’re suffering. And so basically, what that means is if there’s just general crime in your country and somebody’s harassing you for no particular reason, well, then you’re not being persecuted on a protected ground. There’s no connection between that protected ground and that persecution. So you don’t really merit asylum under the current interpretation of our asylum laws.
Jacob Tingen: Well, when I meet with people, my clients have no idea about all of this stuff. They don’t know they have to prove four factors in an immigration court. They don’t know what evidence they have to bring. It’s not like there’s some giant billboard in Guatemala and Honduras and El Salvador that says, “Come to the US, ask for asylum. Take advantage of a five-year immigration court backlog.” That’s just not reality. That’s not why immigrants come. Nobody uproots their family, brings children on a perilous voyage on the back of a train called “the beast,” because people frequently die on it, travel without adequate food and water, cross the border, and hope to make a better future for themselves in the US because of a five-year asylum backlog. That is not why people do any of that stuff. That’s a really sad motivation, and that’s just not why people are doing this.
Jacob Tingen: Does the backlog exist? Yes. Is that the immigrants’ fault? No. Should they be punished for it? Absolutely not. So let’s start there. That reasoning is not a justification for the way that we’re treating immigrants and the policies that are coming out of this administration. Not okay. So let’s talk about why people are coming. The vast majority of Central American immigrants that I meet, now, again, these are the ones that are seeking relief from removal, because they come into my office and they say, “I’ve got a court hearing,” they present a case that they are afraid of returning to their country.
Jacob Tingen: And they present good reasons for that fear. Again, if they’re still here in the country, that means they likely passed a credible fear interview. And as we talked about last time, that’s an interview to determine if they have a fear. If there’s a chance that they might be able to prove an asylum case in court, then our laws give those people a chance. Our laws giving them due process, a chance to prove their case in court. And my job is to evaluate their reasons for fear, explain those four factors, and then determine if I can make a case that’ll give them the best chance possible in court. Okay?
Jacob Tingen: Now, again, like I said, the vast majority of these immigrants are fleeing fear. And what’s interesting is that some of them are fleeing political persecution, and so when it comes to that protected ground factor, I can say, “Well, political opinion.” Some of them are fleeing persecution based on religion, and so it’s pretty easy to make that claim. But many of them, particularly from Central America, conditions are so bad, they have some of the highest homicide rates, these are very dangerous countries for some of these people, and so they don’t fit neatly into one of the, I’m going to say articulated protected grounds. So there are four protected grounds that are listed by statute. That’s race, religion, nationality, political opinion. Okay? And then, as kind of a tack-on, an add-on to the statute is, “or their membership in a particular social group.”
Jacob Tingen: Now, some people read this statute and they say, “Membership in a particular social group. Well, then that’s a social group that is very particular.” And a lot of the case law has tried to narrow, a lot of the case law in the US has tried to narrow what a particular social group is, how particular does it need to be. And, again, we will have a discussion another day focused solely on particular social groups. We could talk literally hours about this topic. But again, just to give you a general idea, a lot of court decisions have tried to narrow how particular a social group needs to be.
Jacob Tingen: There are generally three factors. You have to prove that the group is immutable, that it has characteristics that can’t or shouldn’t be changed. You have to prove that the group is socially particular, and then socially distinct. And then, because we have different circuit courts, some of those requirements are different in different circuits. Here in the Fourth Circuit, you do have to prove all three factors to prove that a social group exists. And then, additionally, you have to prove, again, that nexus factor to prove that your protected ground is the basis for your persecution. So there’s a whole lot of legalese.
Jacob Tingen: Now, again, just to hearken back to this, the idea that my clients, when they cross the border, understand all of this, and that they’re taking advantage of a broken asylum system, is just absurd. So yeah, that reasoning just, it’s absurd. So what we need to do is we need to start listening to these immigrants and figuring out why they’re coming. Well, I have listened to countless hours of stories from Central American immigrants, and I have listened to them talk about their countries, and I have listened to their reasons for persecution.
Jacob Tingen: Now, a lot of the reasons for persecution, there is a lot of general delinquency, a lot of general crime in these countries. And yet, when I read the asylum statute and I read of those factors, race, religion, nationality, political opinion, or your membership in a particular social group, to me that’s not supposed to be construed narrowly. If it’s saying race, religion, political opinion, or pretty much any other group, as long as its particular, that to me should be read expansively. It shouldn’t be read narrowly. And yet, our courts, in a lot of precedent decisions, have tried to read it narrowly. I do acknowledge that the word particular means that it should have some boundaries, but I don’t think it needs to be read narrowly. I don’t think that’s the point of a humanitarian form of relief where people fear for their lives, that they should be denied asylum because their group wasn’t particular enough or that their group wasn’t small enough.
Jacob Tingen: And I’ll give you an example. There’s a case that is a good precedent decision, Matter of Kasinga, which protects women who flee female genital mutilation. And I’ve heard government attorneys argue that, “Well, but that was just a small tribe in Africa. And so, because it was a small tribe and a small group of women, that’s why it’s particular.” And so my question is, so if women fear and flee female genital mutilation, and they’re in a society of 8 million people, 10 million people, 20 million people, half the population is subject to female genital mutilation, just because it’s 10 million people, we’re going to say that that’s not particular? And so that argument falls flat for me. And so that’s what I’m trying to say is that I don’t think these particular social groups originally were meant to be read narrowly, but that’s what’s happening.
Jacob Tingen: And as the Trump administration puts in place different people, the attorney general, USCIS, we’ve talked about how, through these administrative interpretations, they can change how laws are applied to different people. And that’s been happening in our court system as well and in our court precedent decisions. And so the number of people who might fit into a particular social group, some judges and some courts are trying to narrow that even further. And then other courts are trying to open that up and make it a little broader.
Jacob Tingen: And so that’s kind of the battle that judges and attorneys are trying to determine, what is a particular social group? We spend a lot of time there because a lot of the people, particularly these Central American migrants, they don’t fit neatly into persecution on the basis of race, religion, nationality, or political opinion. Some do. And I think there’s a broad argument that opposition to gangs is a political opinion, and that has been made before and accepted in some cases. And gang violence is one of the major drivers for these Central American migrants coming to the US.
Jacob Tingen: But what’s interesting is that, as asylum gets narrowed, and as it gets widened, at the same token, a lot of commentators and administration officials are saying, “Well, these people don’t have real asylum claims because they don’t fit into race, religion, nationality, or political opinion. They’re just fleeing general violence.” And they’re not acknowledging that these people might be able to form particular social groups. And in fact, the administration has countered or attempted to close up some loopholes, I think that they might call them, such as victims fleeing domestic violence, that that is essentially condoned by society in some Central American societies.
Jacob Tingen: And then the administration is also trying to close family as a particular social group. Here in the Fourth Circuit, that’s in Virginia, in the Mid-Atlantic region, family is considered a social group for purposes of asylum. Kinship ties are particular, you can’t change them. And everybody knows who the Smith family is, right? And so, that’s a particular social group. But the administration has tried to say that it’s not.
Jacob Tingen: And so it’s kind of this battle, this wavering back and forth that is happening. And that’s where the administration says, “Well, people are just filing for asylum to take advantage of this backlog.” They’re saying, “These people don’t have real claims.” And they’re saying that they don’t have real claims because they don’t fit within a particular social group that’s apparent at first look. But again, I think that that’s … I think that they’re getting it wrong. They’re getting it wrong. The people that I speak with, the clients that I have … I won’t represent a client if the case is too weak. I’ll tell them, “Look, there’s no basis for this claim.” So when I represent a client, under the laws, they have a colorable claim.
Jacob Tingen: Now, I’m trying to keep these within about 15, 16 minutes, so I think I’m going to end for today and we’ll pick this up again next time. But I want to talk more about the immigration courts, and how asylum approval rates vary widely between different courts, and just other signals of unfairness in the system and the process. So I want to thank you again for coming and listening today. The asylum conversation is fascinating, but again, I don’t think people are coming to take advantage of an immigration court backlog. They’re coming because they fear for their lives. And we’ll talk about more specific examples of that next time.
Jacob Tingen: Thank you for listening to Nation of Immigrants. I want to make a quick plug. For those of you who are watching, these T-shirts are available for sale at store.tingenwilliams.com. You can also support the podcast by going to jacobtingen.com and donating. Again, we’re setting up a 501(c)(3) to take those funds and make sure that they pay off immigrants’ legal fees. And we’re trying to be active and engaged in helping as many people as possible.
Jacob Tingen: Thank you for listening. Support the podcast. And we’ll see you next time. Thanks.