Crisis at the Border: A Personal Story and Practical Solutions

This month, as I have been hearing of the thousands of children fleeing Central America, the story of one mother and her murdered son keeps coming to my mind. About ten years ago, when I worked as an immigration paralegal while serving as a Jesuit Volunteer in Los Angeles, I met with a Salvadoran woman—I’ll call her María—whose son had just been killed in El Salvador. I wasn’t able to help her, but I promised that I would tell her story when I could.

Around 1985, Maria, a new mother, fled the civil war raging in her country. She fled carrying her baby Isaac with her and, after a treacherous journey, she reached Los Angeles. She had no choice but to live in the shadows, finding whatever work she could. She couldn’t apply for asylum because she knew that at that time, the US government was systematically rejecting the asylum claims of Salvadorans and Guatemalans (while routinely granting the asylum claims of Cubans and Nicaraguans for ideological reasons). At the time, our government supported the Salvadoran and Guatemalan regimes, while opposing the Cuban and Nicaraguan regimes. This prevented people like Maria from getting a fair day in court. Over the course of the wars in El Salvador and Guatemala, about 75,000 Salvadorans, mostly civilians, were killed by their government, and about 200,000 Guatemalans, mostly civilian indigenous Mayans, were killed or disappeared by their government. In Guatemala, the military admitted to razing 500 villages, purposely burning fields to cause widespread starvation. In El Salvador, a generation grew up finding tortured bodies of men, women, and children killed by the death squads on the streets each morning.

So, like countless Central American mothers, she survived in the undocumented world. She worked several jobs at a time, hoping to make a better life for herself and, most importantly, her children. Although she was able to bring in enough money to keep a roof over her family’s head and put food on the table, she didn’t have the capacity to protect them. When these child refugees were alone in their neighborhoods after school, the African-American and Chicano gangs started to attack the Central American kids. So the Central American kids began to band together to protect themselves, and quite soon, these groups morphed into more violent gangs that in turn preyed on their neighbors– the most well-known being the Mara Salvatrucha 13 and 18th Street gangs.

During this time, religious organizations were stepping up to demand that refugees not be deported to their deaths. In 1991, this resulted in the American Baptist Churches v. Thornburgh settlement, which gave Salvadorans and Guatemalans a real chance for their asylum claims to be heard. Maria was able to get a work permit and start emerging from the shadows. However, the process was so slow that claims didn’t start being seriously adjudicated until around 2000, through another law, the Nicaraguan and Central American Adjustment Act (NACARA).        But before NACARA could have its intended effect of providing legal status to the Central Americans who fled their governments, white supremacist Timothy McVeigh blew up the Oklahoma City Federal Building. Taking advantage of this national tragedy, Congress slipped in draconian changes to the immigration system that had very little to do with the real threats of domestic terrorism. It stripped away most of the discretion judges had to decide whether a person deserved to stay in the United States and made a whole class of non-serious crimes for which probation and fines were the normal punishment into automatically deportable defenses.

Concretely, this meant that the same crime had a radically different punishment depending on if you were a citizen or not. A US citizen would be monitored by the criminal justice system for a little while. For the exact same crime, a non-citizen would be deported. Imagine two brothers, the older one who fled on his mom’s back as a baby, and the younger, born a year after she arrived in Los Angeles. Both are convicted of joyriding together. The younger kid might do a few months in jail, get a slap on the wrist, complete probation, and get on with his life. The older kid who fled on his mom’s back before he had any memories of El Salvador would be sent back to a country of which he had no knowledge. Quite possibly, all his relatives would be dead or gone, and he might not be able to speak Spanish. Very often, kids with no gang involvement whatsoever found themselves in San Salvador without the slightest clue as to how to survive. Many connected with the gangs because, again, the gangs gave them protection in their new environment. Now, gangs started to spread throughout Central America and Mexico as deportees started their own gang outposts, still centrally managed by gang leadership in Los Angeles. But unlike in the United States, law enforcement in Central America is essentially non-existent. While gangs in the US make life horrible for countless neighborhoods, they do not compete against the government for power and control. In Central America, they do.

While the NACARA application for her and Isaac was pending, and the gangs were spreading throughout the continent, Maria continued raising her son in a rough part of LA. He was friendly with the neighborhood boys who had joined a gang, but he never got involved. Isaac, 17 at the time, did something stupid—I forget the details, but it was something like simple theft or joyriding—and ended up in jail. While serving his sentence, he took advantage of the available programs and completed his GED. The facility allowed a graduation ceremony, complete with a rented satin blue cap and gown.

While a US citizen would have been released after those few months, as an immigrant, this conviction meant nearly automatic deportation. He was transferred to an immigration prison and was housed with members of the same gang that controlled his neighborhood. Representing himself without the assistance of a lawyer, like the majority of immigrants in detention, he pled with the judge for his life, telling him that he would certainly be killed if he were returned to El Salvador. The judge told him that he didn’t believe him, that he wasn’t credible. He was deported. When he landed in the airport, he made his way to his grandmother’s place–to family who were, more than anything, strangers to him. Members from a local gang were informed by their California contacts that Isaac was associated with a rival gang. Less than two days after arriving, he was fatally shot.

A few months before Isaac was deported and killed, Maria had finally received her permanent residency, her green card. This meant that for the first time in nearly 20 years, she could finally travel to El Salvador. So she traveled to the country she had fled in order to bury the son she had carried on her back so many years ago. She brought photos of her son along with his immigration papers, including the transcript of his deportation hearing. When returning to the US through Texas, because of these papers, she was detained for three days by immigration officials before finally being released.

As an American citizen who believes strongly in our Constitution and rule of law, I have never felt more powerless than I felt listening to her. She wanted to hold the government accountable for refusing to listen to the pleas of her son. I could offer her nothing. I sat in silence and grief with her as we looked at a picture of her son celebrating his GED, and then the pictures of this young man in his casket.

We can do better now. We can listen to the children fleeing for their lives, who are terrified by the prospect of returning. We can believe their accounts of the dangers they face in their home countries. The policy changes under consideration by President Obama and many Republicans and Democrats in Congress seek to fix the problem of this influx by limiting access to the courts and, in one proposal, allowing Customs and Border Patrol Agents to screen Central American children for possible refugee status. Imagine if you are a 10-year old Salvadoran girl who has been raped by the police in her country; are you going to immediately reveal your trauma to a police officer, or will you be too scared to show that you may have a claim for relief? If our country makes changes like this, we will be returning to the dark strategies of the 1980s, when we deported Central Americans not by giving them their day in court, but by refusing to hear them out.

To fix the immediate problem in a way that is consistent with our values of equal protection under the law, the government should do three things. First, it should significantly increase the number of immigration judges. Right now, 250 immigration judges each have an average of more than 10,000 cases. Increasing the number of judges will give them the time they need to consider all their cases, and processing time will be cut down by years.

Second, all children should have access to a lawyer. The current process is that an unrepresented child, sometimes as young as four, is called up to the judge, who tries to explain the law to the child, listens to the child, and then, in consultation with the government attorney, tries to decide what to do. On July 15, TRAC Immigration published a report analyzing data on unaccompanied children in immigration court, underscoring the need for representation. These statistics show that many children, for lack of an attorney who can tell their story, are being denied relief to which they may be entitled:

  • In almost half (47%) of the cases in which the child was represented, the court allowed the child to remain in the United States. The child was ordered removed in slightly more than one in four (28%) of these cases. And in the remaining quarter (26%) the judge entered a “voluntary departure” (VD) order.
  • Where the child appeared alone without representation, nine out of ten children were ordered deported — 77 percent through the entry of a removal order, and 13 percent with a VD order. One in ten (10%) were allowed to remain in the country.

Third, for Guatemalan children, many of whom seem to be coming from indigenous Mayan regions of the country, competent indigenous interpreters and legal assistants need to be available. Many of these children have a basic understanding of market Spanish, but cannot articulate the basis of their need for protection in Spanish. They need to have Mam, Quiché, Ixil, and other interpreters.

Ultimately, the answer to the new refugee crisis on the border is to support efforts for peace in these countries. But in the meantime, we need not further destroy our Constitutional principle of due process under the law.

Peace is not the product of terror or fear.
Peace is not the silence of cemeteries.
Peace is not the silent revolt of violent repression.
Peace is the generous, tranquil contribution of all to the good of all.
Peace is dynamism. Peace is generosity.
It is right and it is duty.
Archbishop Oscar Romero (1917-1980)