After asylum limits, some ask: Does 'gang violence' need a new name?
On Monday, Attorney General Jeff Sessions announced that domestic abuse and gang violence cannot be considered grounds for asylum.
Does the bloodshed in Central America really count as “gang violence” anymore?
That question took on renewed urgency this week, after United States Attorney General Jeff Sessions announced new limits on asylum Monday, ruling that domestic abuse and gang violence can no longer be considered factors.
The decision would restore “sound principles of asylum and longstanding principles of immigration law,” he said, as US immigration courts face a backlog of some 700,000 cases – increasingly from Central America’s Northern Triangle, made up of Honduras, Guatemala, and El Salvador.
Immigrants’ advocates hunkered down with the ruling this week, formulating arguments against it. But many also say it raises a larger issue about the reality in Central America: Over the past decade, violence has taken on a new shape.
Transnational criminal groups have not only carved out physical territory, but play outsize roles in formal and informal politics and power brokerage, observers say. Violent death rates in El Salvador and Honduras are higher than most nations at war, and more people are estimated to be dying today than during the region’s bloody civil wars of the 1970s and ’80s. The military is deployed on the streets from Mexico to Honduras, and in recent years international organizations that typically limit their work to war zones have started popping up in Central America.
“Gang violence,” most observers agree, is no longer a suitable label. And in light of Mr. Sessions’ ruling, finding more accurate language could become more urgent. More than 80,000 unaccompanied minors and family units from the Northern Triangle were apprehended at the US’s southern border in fiscal year 2018, often fleeing extreme violence back home. Fewer people crossed the border in 2017, but asylum claims for individuals from the “Northern Triangle” region went up 25 percent between 2016 and 2017.
“I would say 80 to 85 percent of my clients are coming from a context of gang violence or unchecked domestic violence,” says Nicole Ramos, an asylum lawyer in Tijuana with the legal-aid organization Al Otro Lado. “They’re coming from countries, especially domestic violence victims, where there is no system of protection. Lives are seen as not worthy of protection.”
The concepts of war and persecution that shaped today’s asylum laws, many advocates argue, no longer match reality. “The language we use to describe armed conflict is surprisingly imprecise,” says Robert Muggah, co-founder and research director for the Igarapé Institute, a Brazil-based think tank focused on security in the Americas. He was part of the team that ran the Humanitarian Action in Situations Other than War project, which studied how changing violence in Latin America has created the need for new approaches to humanitarian response.
“The language we have goes back to the mid-20th century with the laws of war and the Geneva Convention,” he says, but the nature of conflict around the world has transformed dramatically since then.
“Today we’re increasingly seeing organized crime, extremism, terrorism, and [we’re] grappling with what to call these things. There’s no international legal class,” he says, which affects not only asylum-seekers’ treatment, but how the international community observes and regulates the conflict.
'Never meant to alleviate all problems'
Sessions notes in his ruling that “the mere fact that a country may have problems effectively policing certain crimes – such as domestic violence or gang violence – or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”
"Asylum was never meant to alleviate all problems – even all serious problems – that people face every day all over the world," he said Monday. The number of people claiming a “credible fear of persecution” in interviews with homeland security shot up to 94,000 in 2016 – nearly 19 times the number in 2009, Sessions said.
The announcement overturned previous decisions that abused women could apply for asylum, if they can prove that their home country is unable or unwilling to protect them. Experts fear the move could push domestic violence back into the shadows, where it has festered as a “private matter” for decades.
And Ms. Ramos says she hopes this doesn’t translate into judges interpreting any case that happens against the backdrop of violence in Central America as invalid.
“This will be harmful for people detained right now or having their cases heard right now,” she says.
Nearly all her cases coming from Central America are related to gang activity in some way, even if that’s not the sole argument for an applicant’s credible fear. Take, for example, a religious figure in El Salvador who was forced to preside over a gang-member’s funeral. Later, he was threatened by an opposing gang for his involvement, she says, and told he couldn’t participate in religious events anymore. Will US authorities see this as interference in the free practice of religion, or more narrowly as “gang violence?”
“It’s time to redefine how we label violence in Central America,” says Ramos. “I don’t think it’s an apt term at all.”
Apt or not, there are few good alternatives, observers say. Referring to what’s happening in Central America as a “war,” even if it looks and feels like one, comes with consequences.
“There’s certainly a political element,” says Steven Dudley, co-director of Insight Crime, a foundation that studies organized crime in Latin America. “It creates a de facto recognition of an enemy when you declare something like a war or civil war…. That could embolden and strengthen the gang’s position, essentially giving them political capital they can use for everything from recruitment to negotiations,” Mr. Dudley says.
“You really put them on a different playing field.”
But there are positives, too. The rules of the game become clearer when a country is officially at war. There is more international observation of human rights abuses by players on both sides of the conflict.
“You have much less accountability when there’s no declared war,” Dudley says. “For the military in particular.”
The conversation over what to call the violence across Latin America has been heating up since around 2010, Mr. Muggah says. But it’s not all talk. Groups like the International Committee of the Red Cross (ICRC) and Doctors Without Borders (MSF) have expanded their work in the region.
“ICRC has quietly been running pilot projects across Latin America and the Caribbean, where they never really worked before outside a war context,” says Muggah, noting small projects in Brazil, El Salvador, Haiti, and Mexico. “The idea was to see if they had a role to play in these kinds of situations, and they determined that yes, they do. It was a very radical move for an otherwise conservative organization.”
“Every day along the migration route we treat and counsel patients from Honduras, Guatemala, and El Salvador, who have survived the types of violence our organization usually sees in war zones,” Jason Cone, executive director of MSF-USA, said in a statement this week.
Sessions’ decision Monday is “in a way highlighting the limitations of our international legal systems,” says Muggah.
“The dirty secret of international laws of war is that there is no actual legal definition of what is or is not a war,” he says. “It’s like the judge who had to define pornography: [War] is hard to define, but you know it when you see it.”