Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


4 Comments

TPS – A Viable Solution for Those Fleeing Gang Violence in El Salvador

Carolyn Mills

In San Salvador gang violence and killings are an everyday occurrence. Many people are fleeing the turmoil that the city is facing and heading to the United States in hopes of finding a safe haven. Temporary Protected Status, or TPS, could provide that safe haven. TPS  is granted to eligible nationals of designated countries suffering the effects of an ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions.[1] TPS could provide a potential solution to many escaping the threat of violence and the opportunity to live in the United States without fear of deportation.

CICL Blog Image 3

In the past 25 years since a civil war (with 75,000 civilian casualties), there has been a steady influx of El Salvadoran migrants to the United States. Gang violence and the recent breakdown of a truce between the country’s largest gangs, Barrio 18 and Mara Salvatrucha, has been the cause of the most recent spike in the countries death toll.[2] Newsweek reported that the onset of gang violence between rival gangs has skyrocketed, with a 70 percent increase in violent murders in the past year, overtaking neighboring Honduras in violence[3]. In fact, El Salvador has recently been named the most dangerous country in the Americas! In response to the violence, The Peace Corps has recently suspended all activity in El Salvador[4]. Unsurprisingly, the United States has seen an increase in Salvadoran migrants, often unaccompanied minors. Of the 4,450 people detained at the US-Mexico border in October and November 2015, 3,192 were unaccompanied minors. [5]

CICL Blog Image 2

On top of the massive gang violence, there have also been increased reports of human rights violations—instances of police and armed forces taking justice into their own hands and murdering innocent bystanders. [6] Some police are even calling for the extermination of area gang members.[7] In December 2015, the state Ombudsman of El Salvador found that 92% of the 2,202 human rights violations reported were from military and police personnel in the country.[8] In an effort to make El Salvador safer, it is apparent that due process of law and human rights are a sad casualty.

Those who are already in the United States are still living in fear. The Obama Administration has recently enacted a series of raids—deporting those on final orders of deportation. [9] Thus far, 121 adults and children have been taken and deported. Although none are from El Salvador yet, the fear remains the same in such a close-knit community.[10]

Some Salvadorans who are already here have been granted Temporary Protected Status (TPS). The most recent TPS status granted to Salvadorans was in response to the earthquakes in 2001 and has subsequently been renewed each year.[11]  TPS could be a viable solution. Not only does it provide El Salvadorans with some form of status, it would allow those who are proverbially ‘hiding in the shadows’ to come out and have proper work authorization.  By providing work authorization, individuals would pay taxes and become eligible for some public benefits. It would also stem the tide of legally insufficient asylum applications, which clog the already backed up immigration courts system.

Immigration Overload Flashpoint

A demonstrator that opposes illegal immigration, left, shouts at immigration supporters, Friday, July 4, 2014, outside a U.S. Border Patrol station in Murrieta, Calif. Demonstrators on both sides of the immigration debate had gathered where the agency was foiled earlier this week in an attempt to bus in and process some of the immigrants who have flooded the Texas border with Mexico. (AP Photo/Mark J. Terrill)

Conversely, some would argue that granting TPS would incentivize illegal immigration. However, I don’t think that’s the case. Fleeing on foot is not ideal. It’s expensive and risky. TPS does not provide a pathway to citizenship, but merely a band-aid, a temporary solution to a larger problem.

As a product of the DMV (DC, Maryland and Northern Virginia)—it’s hard. I have friends, neighbors and loved ones who have been impacted through this gang violence, whether fleeing from it or paying to keep their family members safe.

Without a doubt I am an advocate for the law and for justice, but I can’t see the justice in a system is that would deport people back into a chaotic and dangerous situation. It would be counterproductive to send human rights violators back to a country, while seemingly having no regard for the individuals who are being deported back into the same situation.[12] This is not to say that lawful immigration is not important, but what do you do when innocent people are being killed? There isn’t an easy solution, but I think that there is a very human side that many people aren’t seeing. These individuals are your friends and neighbors. They are people who have the same values as all of us. They want the same thing that you want – to live a life free from fear and to freely love and provide for their families.

Carolyn Mills is a graduate from of Bowie State University  and holds a Bachelor of Arts in Political Science. Carolyn is a 2L at the University of Baltimore School of Law. She serves as 2L Representative for the International Law Society.  Her interests and focus areas are on Central America and West Africa; she has traveled to both Guatemala and Honduras and hopes to visit Ghana this summer. She is currently a law clerk for the Department of Homeland Security’s Human Rights Law Section.  

[1] http://www.uscis.gov/humanitarian/temporary-protected-status

[2] http://www.newsweek.com/el-salvador-gang-warfare-death-rate-418201

[3] http://www.irishexaminer.com/world/el-salvador-is-worlds-murder-capital-374864.html

[4] http://www.telesurtv.net/english/news/El-Salvador-Voices-Concern-Over-US-Mass-Deportation-Plan-20160105-0032.html

[5] http://www.baltimoresun.com/news/maryland/bs-md-el-salvador-peace-corps-20160123-story.html

[6] https://www.opendemocracy.net/democraciaabierta/carlos-rosales-ana-leonor-morales/emergence-of-social-cleansing-in-el-salvador

[7] Id.

[8] http://www.businessinsider.com/militarized-police-violence-in-latin-america

[9] http://www.huffingtonpost.com/entry/obama-deportation-raids-families_us_568ac49ee4b0b958f65c5935

[10] Id.

[11] https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-el-salvador

[12] http://www.theguardian.com/world/2016/jan/08/el-salvador-defense-minister-deported-us-human-rights-abuses


3 Comments

Unaccompanied Minors: Keep Them or Send Them Back? A Political Game

Annielle Makon

Tens of thousands of undocumented, unaccompanied immigrants under the age of 18 have crossed into the United States every year.[1] Since 2013, however, the United States has seen an unprecedented increase in the number of unaccompanied migrating children arriving to the country, predominately at the U.S./Mexico border.[2] The majority of the migrant children have come from Honduras, Guatemala, and El Salvador, three nations plagued by organized crime, drug trafficking, and widespread corruption.[3] Gang violence in El Salvador and in urban areas of Guatemala have escalated dramatically in recent months since a weak truce among rival gangs has evaporated.[4] Gang violence has plagued the youth, especially because the gangs are targeting schools and neighborhoods.[5] This massive influx of migrants is placing extra pressure on US lawmakers, spurring even more debate on how to reform immigration policy.[6] President Obama has even called the situation a humanitarian crisis and has sent federal officials to create temporary housing in three states for the migrant children.[7]

Migrant Surge

The Dangers of Migrating

Many flee to escape the horrors of their home country.  Unbeknownst to them, the horror of the migration journey is equally terrible. There have been stories of extreme danger and criminal mistreatment along their journey.[8] Child migrants have experienced abuse and violence at the hands of drug and human traffickers, and even law enforcement.[9] Women and girls are at a high risk for rape and sexual assault.[10] Minors who begin their journey to the United States sometimes find that what they had agreed to do in the US changed or they are required to work or provide sex to “clients” to pay off their debts.[11] Additionally, many of those who are accompanied by smugglers are abandoned at the first sign of trouble, left even more vulnerable than when they began their journey to the United States.[12] Even with these many dangers, migrants continue to make the journey because of the promise of freedom from violence motivates them.

U.S. Government (In)Action

The U.S. immigration system, as a whole, is long overdue for an overhaul. Republicans have passed legislation to force the Obama administration to quickly deport the undocumented immigrants.[13] Yet, the chances of that this legislation becomes a law are slim.

ImmigrantChildren

Currently, many of the unaccompanied minors are being sent to Arizona, though they will not stay there indefinitely.[14] The goal is to process each child within 72 hours and either turn them over to Immigration and Customs Enforcement (ICE) for deportation proceedings or to the Health and Human Services Department (HHSD) to reunite them with their families or place them in foster homes (pending deportation proceedings).[15] In addition, the Obama administration has partnered with the Mexican, Guatemalan, and Honduran governments by placing a public service announcement regarding the dangers of sending unaccompanied minors across the border.[16] Additionally, the Obama administration has stated that the unaccompanied minors are not entitled to any kind of residency or protected status.[17] Yet, they still come.

Domestically, there needs to be reform within the court system. There are roughly 260 immigration judges in the United States and each judge hears about 1,500 cases annually.[18] The unaccompanied Mexican and Central American minors seeking asylum is not as simple as cases from other countries since they often take longer to adjudicate.[19] Whether asylum can be granted to the unaccompanied minor depends on the ability of the minor’s home country government to control non-state actors.[20] Backlog cases have not been this high since 1994, when there were nearly 425,000 cases pending.[21] Yet, they still come.

ChildMigrants

Internationally, the United States owes these children no legal duty. The United Nations Convention on the Rights of the Child (the Convention) is an international human rights treaty that sets out the civil, political, economic, social, health, and cultural rights of children.[22] The Convention defines a child as any individual under the age of eighteen and requires that the state act in the best interest of the child.[23] Article 19 of the Convention states that the parties must “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence.”[24] Therefore, nations that ratify this convention are bound to it by international law.[25]  Although, the United States played an active role in drafting the Convention they have yet to ratify it.[26]  The Convention is unlikely to be ratified in the near future because it forbids both the death penalty and life imprisonment for children.[27] Therefore, by not ratifying the treaty the United States owe no international obligations to the unaccompanied minors. Yet, they still come.

This immigration problem is a complex issue with no easy answers. The main issue should be addressing the root causes of the flight and protecting the children in the process. The US and Central American governments need to address the economic and violence issues that cause these minors to flee. Most importantly, we need to stop treating child migration the same as adults. They should be treated and protected as children. The US government needs to focus its priorities on protection and less on enforcement. These children are in need of protection, not deportation.

Annielle Makon is a third year student at the University of Baltimore School of Law J.D. Candidate (’15). She holds a Bachelor of Arts in Political Science and a minor in Sociology from the University of Maryland Baltimore County. While studying Political Science, Annielle developed a passion for human rights and international relations. In addition to being a CICL Student Fellow, Annielle is an Associate Editor on the Journal of International Law. Annielle also interns at Amnesty International in the Sub-Saharan Africa unit.

[1] Jonathan Ernst, Record number of undocumented minors entering US – report, Reuters (January 31, 2014) http://rt.com/usa/record-undocumented-minors-entering-us-441/.

[2] Mark Seitz et al., Report of the Committee on Migration of the United States Conference of Catholic Bishops, United States Conference of Catholic Bishops (November 2013) http://www.usccb.org/about/migration-policy/upload/Mission-To-Central-America-FINAL-2.pdf.

[3] Ernst, supra  note 1.

[4]Id.

[5]Id.

[6] Ernst, supra note 1.

[7]Bob Ortega, 5 answers: Why the surge in migrant children at border?, The Republic (June 10, 2014) http://www.azcentral.com/story/news/politics/immigration/2014/06/09/immigrant-children-arizona-border-answers/10246771/.

[8] Seitz, supra note 2.

[9] Seitz, supra note 2.

[10] Seitz, supra note 2.

[11] Seitz, supra note 2.

[12] Seitz, supra note 2.

[13] Evan Perez, Number of unaccompanied minors crossing into U.S. tops 60,000, CNN (August 2, 2014) http://www.cnn.com/2014/08/02/us/border-crisis-milestone/index.html.

[14] Ortega, supra  note 7.

[15] Ortega, supra  note 7.

[16] Ortega, supra  note 7.

[17] Ortega, supra  note 7.

[18] Hayley Munguia, The Unaccompanied Minor Crisis Has Moved From The Border To The Courts, Fivethirtyeight (October 2013) http://fivethirtyeight.com/datalab/the-unaccompanied-minor-crisis-has-moved-from-the-border-to-the-courts/

[19] Id.

[20] Id.

[21] Id.

[22] Convention on the Rights of the Child, Sept. 2, 1990, A/RES/44/25.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.