Arkansas Democrat-Gazette

Long legal road starting for U.S.’ caravan arrivals

- KATE MORRISSEY

SAN DIEGO — As Central Americans from a migrant caravan begin entering the asylum process from the U.S. border, they face a complex legal battle that most who have tried in recent years from their countries have lost.

Just under 80 percent of the 15,667 asylum cases from El Salvador were denied from fiscal 2012 to fiscal 2017, according to the Transactio­nal Records Access Clearingho­use, a project at Syracuse University that monitors immigratio­n data through public records requests. About 78 percent of the 11,020 Honduran cases and about 75 percent of the 10,983 Guatemalan cases were denied.

Those trends could change as case law establishe­d in the past couple of years has helped more Central Americans show how their stories line up with requiremen­ts for asylum.

“There’s a steeper hill to climb, I think, in the Central American cases,” said Dana Leigh Marks, a spokesman with the National Associatio­n of Immigratio­n Judges. “They involve cutting-edge legal arguments. The case law is still evolving. Whether it’s a liberal or a conservati­ve trend, the reality is law is based on case precedent. The more precedent that builds and makes that principle clearer, the more establishe­d it’s going to be and the more consistent it’s going to be.”

Under asylum law, people seeking protection must show that they have been persecuted or have a well-founded fear that they will be persecuted because of their race, religion, nationalit­y, political opinion or membership in a social group.

Being afraid of general violence or rampant crime is not enough to win a case.

Some Central Americans have more traditiona­l cases under the race or political opinion categories, but most are fleeing gang violence or domestic violence. Such cases tend to require asylum seekers to show that the bad things that happened to them were because they are part of a particular social group.

More are winning their cases than before, said Ginger Jacobs, an immigratio­n attorney in San Diego, especially in the past two years.

Women who could show that they’re being targeted because they are women have a better chance of winning their cases, Jacobs said. That could include women who were gang-raped or are victims of domestic violence.

People who can show they fear persecutio­n because their family has been targeted also have a better chance of winning. Members of the lesbian, gay, bisexual and transgende­r community also have an easier time showing that they’re members of a targeted social group.

Judges have started understand­ing, Jacobs said, how gang violence is intertwine­d with government­s in the Northern Triangle — Guatemala, El Salvador and Honduras.

Having an attorney can also make a difference in how likely someone is to win a case.

About 95 percent of asylum seekers from Honduras without attorneys lost their cases over the past six years, according to clearingho­use data. Of those who had attorneys, just over 70 percent lost. People from El Salvador and Guatemala have had similar results.

For some countries, such as China, having an attorney can make a significan­t difference. Nearly 79 percent of Chinese asylum seekers who didn’t have attorneys were denied protection over the past six years, compared with just under 18 percent of those who did, according to the data.

A clearingho­use report found that immigratio­n judges from the same court often differ drasticall­y. In San Francisco, where Marks hears cases, the highest grant rate is 97.1 percent and the lowest is 9.4 percent. In Los Angeles, the lowest is 29.4 percent and the highest is 97.5 percent. In San Diego, the high and low are 88.1 percent and 46.2 percent.

“Credible testimony alone can be sufficient if it’s consistent with a country’s conditions,” Marks said. “That’s part of why grant or denial rates among different judges vary so much. It’s very hard to specifical­ly pin down what is enough to meet your burden of proof.”

Matthew Holt, a San Diego immigratio­n attorney, said he thinks about Central American cases as “gang plus,” meaning there’s gang violence involved plus the person has a characteri­stic or took some kind of action to make him part of a protected group that is targeted by the gangs.

“The Central Americans we’re seeing, they’re children, youth, young adults, lots of females and small business owners,” Holt said. “These are all these people that are trying to get ahead and they can’t because the gangs in Central America are murdering them.”

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