Neither reckless nor improper: Central Americans’ search for safety

Attorney General Jeff Sessions doubled down on family separation this week, vowing to continue the cruel and inhumane policy of forcibly separating migrant children from their parents. He criticized those parents who would “recklessly and improperly” cross the border with children in tow. But the actions of these parents are neither reckless nor improper. And this administration’s zero-tolerance attempt at deterrence suffers (at least) one major flaw: you can’t deter families fleeing for their lives.

My own clients — mothers from the “Northern Triangle” region of El Salvador, Guatemala and Honduras — have fled horrific, unrelenting violence. They are survivors of rape, domestic violence, death threats by relatives and gang members, and extortion; they have lost partners, children and parents to murder, kidnapping and disappearance. Despite their pleas for help in their home countries, their governments were either unwilling or unable to protect them from continuing harm. Indeed, reports to police about the abuse they endured often put them in even greater danger.

{mosads}They are not outliers. Since 2014, tens of thousands of women and families have sought asylum in the United States on this basis. The United Nations High Commissioner for Refugees (UNHCR) interviewed more than 160 women from Northern Triangle Countries seeking asylum in the United States in 2015. These women reported that they and their children faced “extreme levels of violence on a near-daily basis.” Eighty-five percent of women interviewed reported living in a neighborhood controlled by gangs or other violent, criminal groups. Sixty-two percent of women reported that they were confronted with dead bodies in their neighborhoods, many on a daily basis.

Moreover, the women interviewed reported “prolonged instances of physical, sexual and psychological domestic violence, for which authorities provided no meaningful help.” The common denominator in all their stories: these women fled to save their lives and the lives of their children.

And families’ flight from violence was not a choice — it was a necessity. In fact, 69 percent of the women interviewed by UNHCR attempted to first find safety within their home countries, by fleeing to other cities and towns, or by going into hiding. Only after they remained in danger at home did they finally flee to the United States. Their decision to seek asylum in the United States wasn’t reckless; it was rational.

And yet Sessions argues that these families’ decisions to seek asylum were not only reckless, but improper. Despite there being no law that requires such cruelty, Sessions contends that as a result of their “reckless and improper” behavior, these families “have to” be separated and prosecuted.

Section 208 of the Immigration and Nationality Act (INA) states: “Any alien who is physically present in the U.S. or who arrives in U.S. (whether or not at designated port of arrival…) irrespective of such alien’s status, may apply for asylum.” Traditionally, then, there are two ways to apply for asylum — either at a port of entry or, having entered the United States without authorization, a noncitizen can seek asylum when apprehended by law enforcement.

Both avenues are lawful and both are contemplated and authorized by the statute. Insidiously, though, the former avenue is becoming more difficult to accomplish. Reports of Customs and Border Protection (CBP) officers forcibly turning away asylum seekers at ports of entry, in violation of international law, are becoming more common.

This month, reporting from the Paso del Norte Bridge between Texas and Mexico, journalist Robert Moore described Customs agents crossing into Mexico to physically prevent the entry of would-be asylum seekers. Other Central American migrants were — incredibly and erroneously — told by CBP agents that CBP was “at capacity,” and similarly have been prevented from entering the United States to make their claims for asylum.

At the same time, asylum seekers who pursue the latter avenue are being systematically prosecuted under the Trump administration’s “zero tolerance” approach — a matter of policy, and not required by law. This policy has resulted in the separation of hundreds of children from their parents and mass, summary trials at the southern border.

Sessions’ escalating, and misleading, rhetoric is a red herring, part of the continuing efforts of this administration to criminalize and demonize Central American refugees. These families flee their countries in attempts to save their lives. Their decisions are rational and proper — indeed, they are making the only “choice” they have.

Sarah Sherman-Stokes is associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.