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Asylum for the Few

US immigration and refugee policy has long been determined by what is most politically beneficial to the US — not who actually deserves protection.

Some of the thousands of Central American migrants look at a map after arriving in the small town of Santiago Niltepec on October 29 in Santiago Niltepec, Mexico. Spencer Platt / Getty

Rocío Hernández has twice been held in immigration detention in the United States. Both times, in October 2013 and March 2014, she had come from Mexico to request political asylum at the border crossing. And both times, after spending a month in detention, she was deported. When she first asked for asylum, she had been living in Mexico, her birth country, for four years. Before that, she had spent fifteen years living undocumented in the United States.

“I had gone back to Mexico to go to school, for the chance to have a professional career,” she told me over the phone in 2014. She was in Veracruz, where she had gone to live after being deported for the second time.

With long black hair, a dark complexion, bright eyes, and a wide, vivacious smile, Rocío migrated to the United States with her family, without papers, when she was four years old. Her life unfolded like that of a typical American girl: she went to school and thought about what she would do when she grew up. But when she tried to continue her education after high school, the door slammed shut. She did not have a social security number.

“At the time I wanted to go to art school, which costs twice as much as a regular school, and I couldn’t get a scholarship, or financial aid for immigrants,” Rocío recalls. “My parents did not have a good financial situation. We couldn’t apply for a loan.”

So when Rocío was nineteen, she decided to return to Mexico and continue her education there, leaving behind High Point, North Carolina, her parents, her seventeen-year-old sister, and her thirteen-year-old brother. She went to the Mexican state of Veracruz, where her family was from, and enrolled in a program for graphic design and public relations. The experience was harder than she had imagined. She felt like a foreigner in the country she had considered her own. And the state her parents fondly remembered had become one of the most dangerous in Mexico, where drug cartels and organized crime operated with impunity, journalists were assassinated, and young people were kidnapped, their bodies discovered weeks later in mass graves.

But in spite of the abundant evidence of the violence in Veracruz, the evidence presented by Rocío on her particular situation, and the fact that she had lived most of her life in the United States and her entire family was there, her case was not considered strong enough for an asylum petition.

“My dream was to live in Los Angeles someday and work in a fashion design company, but I couldn’t,” she tells me as we finish our conversation. “The truth is I don’t see myself living in Mexico, I’m afraid here. So I’m considering going to London to study art, or fashion.” It has been five years since she last saw her parents; they cannot travel to Mexico because of their immigration status.

Most of the 11.5 million undocumented immigrants living in the United States have been an integral part of its society, economy, and culture for much longer than one or two years. Only 14 percent of undocumented immigrants have been in the country for less than five years, while 66 percent have made their home in the United States for a decade or more. Just like Rocío, most have deep roots in the United States through their communities and families. But the law still defines them as “aliens,” and they are denied the opportunity to work, to pursue higher education, and to build a stable life.

The proportion of long-term residents is even higher among the 6 million undocumented immigrants from Mexico; just 7 percent of undocumented Mexican immigrants have been in the country for less than five years, and many have been a part of US society for over twenty years. In spite of these statistics, indicating Mexicans’ strong links to the United States and long-term contributions to its economic output, legal and societal stigma, including disparaging myths and clichés, seems to mark immigrants from Mexico as “more undocumented” than those from other countries. Mexicans comprised 52 percent of the total undocumented population but 65 percent of those deported in 2015. Mexicans are also subjected to expedited repatriation, wherein those detained illegally crossing the border from Mexico or Canada can be immediately returned to their countries of origin without any judicial process.

“That’s something I’ve called ‘Mexican exclusion,’ ” says Carlos Spector. “There aren’t waves of migrants coming from the Canadian border and being deported, right? That provision is aimed at Mexico . . . to prevent Mexico’s humanitarian crisis from being reflected in granting political asylum.” US immigration court judges, Carlos says, classify the violence suffered by asylum petitioners as criminal activity rather than political violence, despite the fact that “the crime is being committed by the state . . . They recognize abuses in Cuba, Venezuela, all over the place, but not Mexico.”

Since its founding, the United States has presented itself to the world as a just, fair nation that opens its arms to whoever sets foot on its land in search of freedom and prosperity. Nonetheless, until just before World War II, there was no legal measure in place through which someone seeking asylum could apply for it. After the war, when international norms on the issue were standardized, US law began to guarantee rights to certain individuals as refugees, but generally on the basis of economic, commercial, or political criteria, rather than human or civil rights. The United States has accepted 3 million refugees, but the vast majority of these have come from only three countries: Cuba, Vietnam, and the former Soviet Union. In the United States, “refugee” almost always means “refugee from Communism.” The United Nations Refugee Convention was ratified in 1951 and the United States signed the protocol defining refugees in 1967, but for decades US policy remained entrenched in Cold War politics.

Several episodes illustrate US policy toward those who knock on the door seeking refuge. During the 1930s, for example, President Franklin D. Roosevelt relied on the immigrant quota system in effect at the time to justify US refusal to accept refugees from Nazi Germany. After the war, the Allies had to decide what to do about the 1 million people displaced from occupied territories. The United States created the Displaced Persons Act (DPA), agreeing to admit 205,000 refugees between 1948 and 1950. After that, approximately 80,000 Jewish refugees were also accepted through an amendment to the law, but over 70 percent of those were from the Soviet Union or Eastern Europe.

Several years later, after the Cuban Revolution in 1959, the attorney general’s office exercised its discretion to conditionally admit, or parole, thousands of Cubans who had abandoned the island for the United States. Through the Cuban Adjustment Act of 1966, a legal remedy was created specifically for this population, and any Cuban who had been present in the United States for one year could be granted permanent residency immediately. In addition, various federal assistance programs made it easier for the Cuban community to adjust and assimilate to life in the United States.

This policy of open arms for Cubans contrasts sharply with policies in place for refugees from Haiti, a neighboring Caribbean island. During the 1970s, thousands of Haitians fled their country because of the harsh repression of dictator François Duvalier’s regime. Like the Cubans, many left on small rafts or rickety boats cobbled together from whatever materials they had on hand. They made the treacherous journey and arrived in the United States seeking asylum.

As one would expect, the cases started to pile up. The US government created the Haitian Program to deal with the 6,000 to 7,000 cases that had accumulated at the INS in Miami since mid-1978. But the number of pending cases was rising not because the government did not have the capacity to process them, but rather because of a deliberate policy of addressing the long line of Haitian citizens at a snail’s pace. Duvalier was a US ally, after all. As with other countries in past decades, openly admitting that his government was creating political refugees would have contradicted US diplomatic policy.

In July 1978, the INS established that Haitian refugees would be considered “economic,” not political refugees. This classification dramatically reduced their likelihood of qualifying for political asylum. To discourage Haitians from trying to immigrate in the future, the INS recommended that they be detained upon their arrival in the United States, refused work permits while their cases were pending — if cases were opened for them at all — and processed and deported as soon as possible.

What followed was a disaster: under the new program, refugees were interviewed at a rate of forty per day, with agents who had received no training in political asylum. Almost 40,000 applications were processed under the program, and each and every applicant was denied political asylum.

With the Refugee Act in 1980, the United States finally created a policy addressing refuge and asylum that, in accordance with United Nations policy, would treat everyone facing political persecution equally. The new policy was put to the test almost immediately with the worsening Haitian refugee crisis, as well as the arrival of thousands of Cuban refugees on the shores of southern Florida after Fidel Castro eased restrictions on migrating by sea.

Between April and September 1980, approximately 125,000 Cubans left the island in a mass exodus known as the Mariel Boatlift, named for the seaside town from which many of them departed. Maintaining the approach to asylum of his predecessors, President Jimmy Carter’s administration accepted Cuban migrants from the Mariel Boatlift as political refugees, while the Haitians were denied refugee status and considered to be fleeing for economic reasons. During those months, the deaths of Haitians who drowned before reaching Florida’s coast were largely ignored by the media.

In September 1981, President Ronald Reagan declared that Haitian immigrants represented “a serious national problem detrimental to the interests of the United States.” Through an agreement with Duvalier’s government, the Reagan administration allowed the US Coast Guard to block boats carrying Haitian immigrants from entering US waters and return them to Haiti. This was the first such agreement of its kind. By the end of 1990, 23,000 Haitians had been detained at sea under the new policy. Only eight were granted asylum. In 1991, a boat carrying Haitian refugees to the United States stopped to rescue some Cubans whose boat had sunk. When the Coast Guard intercepted them, the boat filled with Haitians was returned to Haiti with everyone on board, except the Cubans, who were taken to Florida.

In 1994 an energy crisis prompted another mass exodus from Cuba while a military coup that had brought Jean-Bertrand Aristide to power three years earlier provoked an exodus from Haiti. As thousands died at sea, a federal judge ordered US president George H.W. Bush to suspend his policy of repatriating Haitians. Refugees in boats intercepted at sea were taken to the Guantanamo Naval Base in Cuba. By late 1994, 50,000 refugees were being held at the base, at a cost of between $500,000 and $1 million per day. A massive repatriation process began.

Three-quarters of Haitians, even minors who were traveling alone, returned to Haiti “voluntarily.” In 1995 the 20,000 Cubans who had been held at Guantanamo were brought to the United States, and the “wet foot, dry foot” policy began. (Those caught at sea were returned to Cuba, while those who made it to land qualified for expedited permanent resident status.)

This disparity in granting asylum has been a constant in US immigration politics for decades. Cubans, Venezuelans, Syrians, Chinese, and Colombians who cite a fear for their lives or safety, offer a marketable skill to benefit the economy, or are attempting to reunify their families are more likely to be admitted.

Meanwhile, Hondurans, Salvadorans, Guatemalans, Haitians, and Mexicans have a much lower chance of being approved for asylum and few alternative avenues for legally entering the country. Shifting economic, trade, ideological, and military alliances as well as political affiliations and rivalries among nations determine who deserves protection. When it comes to matters of asylum, geography is destiny.

The last major immigration reform legislation to be passed in the United States was signed in 1986 and established that only immigrants who had arrived in the country before January 1, 1982, and could prove it would qualify for legal status. This measure left out most Central American immigrants who had fled violence in their countries after the Sandinista victory in Nicaragua in 1979, when the rightist governments in El Salvador and Guatemala stepped up their campaigns against leftist guerrillas and their presumed sympathizers among the civilian population, including through repression of religious groups and unarmed activists.

In Guatemala, hundreds of indigenous villages were destroyed in what is now openly acknowledged as an act of genocide, and millions of people were internally displaced. Between 1984 and 1990, 45,000 Salvadorans, 48,000 Nicaraguans, and 9,500 Guatemalans applied for asylum. Of the estimated 500,000 to 850,000 Salvadorans who were in the United States in 1986, only 146,000 had been in the country for at least four years.

The United States opposed Nicaragua’s leftist revolutionary government and supported the right-wing regimes in El Salvador and Guatemala; this meant that 26 percent of the petitions from Nicaraguans but only 2.6 percent of the Salvadorans and 1.8 percent of the Guatemalans were approved. This held true for immigrants from other countries that the United States considered enemies: 73 percent of Syrians and 52 percent of Chinese, for example, were admitted. In contrast, many Central American refugees were arrested at the border and returned to Mexico without even the opportunity to request asylum.

This lopsided treatment, on top of the worsening situation in Central America, sparked the growth of an important support network in the United States, including the Sanctuary Movement, which offered refuge and help to thousands fleeing violence in the 1980s. Some organizations were started by refugees themselves, such as the Central American Refugee Center (CARECEN), founded in 1983 and later renamed the Central American Resource Center. These were the first organizations to question and challenge the lack of rights for undocumented immigrants in the public sphere.

Increasing emphasis was placed on the fact that US intervention was one of the principal causes of the violence that prompted the exodus from Central America: “We’re coming here because you were there.” Activist groups called for the withdrawal of military aid to the Contras in Nicaragua and the governments of El Salvador and Guatemala. And social activist organizations filed a lawsuit, American Baptist Churches v. Thornburgh, which resulted in the so-called ABC settlement; as a result, through a long process that would take years for some, thousands of asylum cases were reopened in 1990, giving Salvadorans and Guatemalans another chance at legal residency. Among other things, the Immigration Act of 1990, also known as IMMACT, created Temporary Protected Status (TPS), which granted work permits to immigrants from countries affected by war or natural disasters. The permits were valid for eighteen months, and then could be renewed.

TPS for Salvadorans was extended a few times but then discontinued in 1995 after a peace treaty was signed in El Salvador, ending the civil war. At that time there were around 1 million Salvadorans living in the United States, half of whom had legal status, and 90,000 to 190,000 of whom had TPS. Immigration reforms in 1996 put new obstacles in place for asylum seekers, among them giving every immigration agent the authority to deny them the opportunity to present their case to a judge, or to lock them up in detention while their cases were reviewed.

When the TPS program ended, many Salvadorans once again went forward with asylum petitions that had been put on hold, but were confronted with a tremendous backlog in immigration courts. This resulted in extensive bureaucratic paperwork, followed by extremely long wait times while their applications were processed and a dark threat of deportation hung over their day-to-day lives. In 2001, the Immigration and Naturalization Service (INS) estimated that it could take as long as twenty years to process the 200,000 applications pending for Central Americans.

Between 1999 and 2003, the approval rating for Salvadoran and Guatemalan asylum applicants hovered between 7 and 11 percent, a figure similar to what it had been in the 1980s, which had prompted the ABC settlement. Finally, after devastating earthquakes in El Salvador in 2001 and Haiti in 2011, a new TPS went into effect to afford some relief to undocumented immigrants from those countries, though it offered them neither permanent residency nor an eventual pathway to citizenship.

As Aviva Chomsky puts it in Undocumented: How Immigration Became Illegal, “Immigration law revisions have continued the pattern of creating new ways of punishing illegality, while concomitantly creating sometimes unexpected and apparently arbitrary new avenues for legalization.”