For years, most undocumented immigrants facing deportation in the U.S. were given a chance to go before a judge—to show evidence, call witnesses, and make a case for why they should be allowed to stay. In 1996, Congress revoked that right for tens of thousands of immigrants, expanding forms of “summary removal,” which can take place without a hearing or judicial input. By 2013, more than eighty per cent of deportations were nonjudicial, with the result that life-or-death decisions now routinely rest in the hands of immigration authorities at the border.
Even when asylum seekers get the opportunity to see a judge, it can be difficult to prove that their fears merit legal relief. Asylum seekers aren’t entitled to lawyers, and children as young as three have been told to represent themselves in immigration court. According to Transactional Records Access Clearinghouse, at Syracuse University, asylum seekers who find legal representation are five times more likely to win their cases. Geography is a strong determining factor in their fates. When the Government Accountability Office studied the outcomes of asylum cases in courts nationwide, it found significant geographical disparities in the responses to nearly identical situations. Between 2007 and 2014, some sixty per cent of asylum applicants won their cases in New York City, while in the courts of Omaha and Atlanta less than five per cent did.
Perhaps the most formidable challenge for asylum seekers is that the Second World War-era categories of protection aren’t well suited to immigrants fleeing modern gang violence. Courts resist recognizing the asylum claims of people who have been targeted by MS-13, for instance, because the motive for violence rarely fits the criteria. For victims of domestic violence, the legal protections, including the Violence Against Women Act, are slightly more favorable. If Laura had gone before a judge, she could have had multiple options for potential relief, including a U visa, for crime victims. Still, the legal scholar Blaine Bookey writes, “Whether a woman fleeing domestic violence will receive protection in the United States seems to depend not on the consistent application of objective principles, but rather on the view of her individual judge, often untethered to any legal principles at all.”
Not long ago, I met a young mother who asked to be identified by her middle name, Elena. In Honduras, where she grew up, her teen-age brother was murdered by MS-13 for being gay, another brother was killed for refusing to join the gang, and her sister was shot for ignoring a gang leader’s sexual advances after he’d raped and impregnated her. A different gang member began pursuing Elena, and fired shots at her house after she turned him down. She reported the crime to police, and then learned that he was planning further retaliation against her.