The Odyssey of Salvadoran Asylum Seekers

Susan Coutin

Irma Martínez and her family were elated when they learned that, in 1997, the U.S. Congress had passed a law exempting certain Salvadorans and Guatemalans from the restrictive immigration policies adopted the year before.[1] Since leaving El Salvador in 1986, they had lived in the United States in a virtual state of legal limbo. Irma hoped the new law would resolve their uncertain future.

Irma was among the more than one million Salvadorans who fled to the United States from 1980 until 1992 during their homeland’s civil war. As a young girl, Irma experienced the horror of war firsthand: “I saw things when I was walking in the street. There was a man hanging, whose skin had been removed. I was playing in an empty house in a construction area and I fell down and found a hand.” Such experiences were not unusual. Carlos Pineda, who fled to the United States in 1982 when he was 11, recalls, “I had seen so many dead people and everything; the way in which they were killed. And you know, by just looking at them all destroyed, you know, all torn up in pieces because they were cut by machetes and all that other stuff.”

The years preceding the war were characterized by increasing economic disparity and widespread political repression. Between 1961 and 1971, the percentage of landless families more than doubled—from 19% to 41%—and land holdings became increasingly concentrated in huge estates that cultivated crops for export.[2] Meanwhile, opposition groups and others endured arrests, assassinations and massacres. In response, these groups went underground and, in 1980, formed the leftist guerrilla organization Farabundo Martí National Liberation Front (FMLN). Inspired by the example of the Sandinistas in Nicaragua, FMLN forces hoped to quickly defeat the Salvadoran military. But when a victory was not forthcoming, the FMLN embarked on a strategy of prolonged warfare.

The army countered with scorched earth campaigns that, among other things, used aerial bombardment on areas of suspected guerrilla support. This counterinsurgency tactic, known as “draining the sea to kill the fish,” caused heavy civilian casualties. Widespread abductions, torture, assassinations and disappearances—approximately 95% of which the Truth Commission for El Salvador later attributed to government forces or right-wing death squads—established a culture of fear.[3] Civilians found it difficult to determine what actions, relationships or connections might make them targets of repression. The tortured and dismembered bodies of victims along roadsides served as discomposing warnings to others. Soldiers set up roadblocks, boarded buses and otherwise subjected the population to intrusive surveillance. Combatants from both sides confiscated food and supplies, and men and boys risked forcible recruitment. By 1992, 75,000 people were dead and 25% of the Salvadoran population had been displaced.[4] More than one million of those displaced went to the United States, mostly without visas.

When they arrived, Salvadoran migrants such as Irma Martínez and Carlos Pineda met with a chilly reception. Because the U.S. government was providing the Salvadoran government with military and economic aid, it was reluctant to recognize Salvadoran émigrés as victims of human rights abuses and as deserving of political asylum. According to the U.S. Committee for Refugees, 97% of Salvadorans who applied for political asylum between 1983 and 1986 were rejected, while applicants from Iran, Romania, Czechoslovakia, Afghanistan, Poland and Hungary—all ruled by non-friendly regimes—were approved at rates ranging from 32% to 60%.[5]

In response to U.S. policies, Central American refugees founded committees to support popular movements in their native countries, U.S. religious congregations declared themselves “sanctuaries” for Salvadoran and Guatemalan refugees who risked deportation, lawyers’ groups aided asylum seekers, and Central American refugee community organizations sought to meet the needs of their growing population. Through allies in the U.S. Congress, these groups repeatedly proposed legislation—known as “Moakley-Deconcini,” after its sponsors—that would grant some form of temporary safe haven to Salvadoran émigrés.

The solidarity movement soon caught the ire of the U.S. government. According to the U.S. Senate Select Committee on Intelligence, the FBI investigated groups that opposed U.S. policies in Central America. Sanctuary congregations were subject to mysterious break-ins in which files were stolen, but valuable office equipment was left undisturbed. In 1985, following an extensive undercover investigation, 14 members of the sanctuary movement were indicted in Tucson, Arizona on charges of conspiracy and alien smuggling. After a six-month $6 million trial, eight of the 11 accused sanctuary workers were convicted.[6]

In response to the Tucson indictments, sanctuary activists filed a class action suit against the U.S. government. The suit, which came to be known as “American Baptist Churches v. Thornburgh” or simply “ABC,” sought a prohibition on future sanctuary prosecutions, an end to discriminating against asylum seekers due to foreign policy considerations, and a finding that Salvadorans and Guatemalans were entitled to safe haven.

As advocates sought to change U.S. policies, immigration from El Salvador to the United States continued. Given the devastation wrought by political violence, it is difficult to disentangle economic, political and familial motives for migrating. When Irma arrived in the United States she reunited with two older siblings and members of her extended family. As Irma’s father explained, “The situation in El Salvador was worsening, and we couldn’t stand the separation any longer.” Carlos Pineda came to the United States to avoid forcible recruitment, but his mother had already emigrated to support her family. Félix Dubin left El Salvador in 1989 for two reasons: “One was that the situation in El Salvador was bad. Due to the violence and the civil war, there was no work. And the other reason was that I wanted to meet my sisters. They had grown up in the United States and I had never seen them.”

The late 1980s and early 1990s were watershed years for Salvadoran émigrés. In November 1989, the guerrilla forces launched a “final offensive” designed to provoke a national insurrection, or at least demonstrate the FMLN’s military strength. During this offensive, the Salvadoran Armed Forces assassinated six Jesuit priests, their housekeeper and her daughter. The assassinations provoked widespread condemnation, increasing pressure for a negotiated solution to the conflict. In this context, the U.S. Congress approved the 1990 Immigration Act, which awarded 18 months of Temporary Protected Status (TPS) to Salvadorans. Some 187,000 Salvadorans registered for this benefit. The same year, as efforts to reform U.S. asylum procedures were launched, the U.S. government offered to settle the ABC lawsuit out of court. The settlement gave Salvadorans and Guatemalans the right to apply, or reapply, for political asylum under special rules designed to ensure fair consideration of their claims. Some 240,000 Salvadorans and Guatemalans—including most of the TPS recipients—eventually applied for asylum under the ABC class action lawsuit. Then, in 1992, came the signing of the peace accords, officially ending the Salvadoran civil war.

The peace accords created unexpected dilemmas for Salvadoran émigrés. For years, advocates had argued that Salvadorans were only coming to the United States to escape the civil war, but when the war ended few were eager to return. Victims of human rights abuses worried that their persecutors were still at liberty. Those who had suffered personal tragedies were reluctant to return to the sites of those traumatic events. And many Salvadorans simply wanted to wait and see whether peace would last. Émigrés also found that they had become accustomed to life in the United States, with many having children who were U.S. citizens and relatives in El Salvador dependent on their remittances.

Although Salvadorans were undergoing a transition from being a refugee to an immigrant population, the legal remedies allowing them to remain in the United States—asylum and TPS—remained linked to conditions in El Salvador. With the passage of time and the implementation of the peace accords, it became increasingly difficult for Salvadorans to win political asylum. U.S. immigration officials, facing a huge backlog in asylum petitions, put ABC class members’ cases on hold. As temporary residents with pending asylum applications, ABC class members could not petition for visas to bring relatives to the United States, accrue the five years of permanent residency that confer eligibility to become a naturalized U.S. citizen or travel outside of the United States without permission from U.S. immigration officials.

To prevent mass deportations, Central American advocates sought recognition of the length of time ABC class members had already spent in the United States. Advocates pinned their hopes on “suspension of deportation”—a legal process that granted permanent residency to immigrants who could prove seven years of continuous presence in the country, good moral character and that deportation would be an extreme hardship. But the mid-1990s were a difficult time to advocate for any immigration rights, given the economic recession and strong anti-immigrant sentiment.

In 1996, Congress approved the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Together, these laws stiffened border enforcement, expanded the range of criminal convictions that made non-citizens deportable and made it more difficult for undocumented immigrants to acquire legal permanent residency. Suspension of deportation was eliminated and a new form of legalization, known as “cancellation of removal,” was created. Hopes that suspension would solve ABC class members’ immigration situation were dashed. To receive cancellation, applicants had to demonstrate ten years of continuous presence rather than seven, and prove “extreme and exceptional hardship” rather than “extreme hardship.” Moreover, a cap of 4,000 was placed on the number of cancellation cases that could be approved annually.

In 1997, Central American advocates launched a new campaign to win legal permanent residency for ABC class members. Salvadoran and Guatemalan authorities concerned with the destabilizing effects that would result from deportations also lobbied for a remedy. Several months into the campaign, Salvadorans and Guatemalans joined forces with Nicaraguans who had fled the Sandinista government and were also victims of IIRIRA. This alliance made possible the passage of the Nicaraguan Adjustment and Central American Relief Act (NACARA) in November 1997. NACARA gave Salvadoran and Guatemalan ABC class members the right to apply for suspension of deportation under pre-IIRIRA rules. For Nicaraguans living in the United States since December 1, 1995, the law permitted them to adjust their status to that of legal permanent resident. The differential treatment likely stemmed from the vastly different governmental relations between Washington and the three nations. Nicaraguans fled a government the United States opposed, whereas Salvadorans and Guatemalans fled governments that Washington supported.

Outraged by the disparity between Nicaraguan, Salvadoran and Guatemalan NACARA beneficiaries, advocates and Salvadoran authorities pressured the Clinton administration for equitable treatment. This pressure generated an unprecedented set of regulations. Asylum officials, who normally only hear asylum claims, were granted authority to adjudicate NACARA suspension cases, thus streamlining the application process. The NACARA regulations enumerated for the first time the factors to be taken into consideration in assessing hardship—the applicant’s age at time of immigration, the immigration status of the applicant’s immediate family members, and the applicant’s length of residence in the United States. And, most significantly, the regulations explicitly presumed that ABC class members would suffer hardship if deported, though immigration officials retained the right to rebut this presumption in particular cases. These regulations virtually guaranteed approval for the vast majority of NACARA claims.

Although NACARA was a boon for ABC class members, delays in processing NACARA claims have frustrated many applicants. By the end of 2003, the number of claims filed under the section of NACARA that applies to ABC class members stood at 131,688. Of these, 87,516 had been adjudicated. The ABC-NACARA program manager has estimated that it will take two years to adjudicate the remaining cases.[7] Irma Martínez and her family became residents in 2003 when they were finally called for an interview on their NACARA application.

The delays can be devastating for migrants. To maintain her temporary status in the United States, for example, Irma’s mother had to forego visiting El Salvador to see her dying mother. Irma, a talented artist who hopes to become an elementary school teacher, was unable to attend a four-year university until she obtained a green card. While waiting, ABC class members also have to renew their work permits annually at a cost of $120 per person. Javier López, who has lived in the United States for sixteen years, described how his children in El Salvador anxiously awaited the outcome of his NACARA case so they could join him: “I’d call them by phone and they’d say to me, ‘When are you going to get your papers?’ And I’d tell them, ‘I’m waiting. I don’t know, but any day they will arrive.’”

It appears that NACARA will eventually resolve the situation of many who fled to the United States during the Salvadoran civil war, but it does not address the situation of Salvadoran immigrants that left in the post-war era.[8] The same conditions that make ABC class members reluctant to return to El Salvador also fuel continued emigration. Although political violence has diminished, criminal violence is wreaking havoc in El Salvador. Growth in maquiladora plants that assemble goods for export contribute to emigration by displacing workers from other occupations while only providing transitory employment. Additionally, natural disasters have spurred migration. When El Salvador was still being rocked by aftershocks from the January and February 2001 earthquakes, a worried government official commented, “Before, it was the campesino who migrated, then the factory worker. Now it’s the professionals.” Following these earthquakes, U.S. officials again granted Salvadorans TPS, currently scheduled to expire in March 2005.

Salvadoran officials estimate that nearly one-fourth of Salvadorans live in the United States. The World Bank reports that El Salvador’s economy has achieved “growth and stable prices” in the post-war period. This growth and stability has, however, been achieved in part through the massive influx of migrant remittances. According to El Salvador’s Central Reserve Bank, migrants abroad sent an estimated $2.1 billion—14% of the country’s gross domestic product—to their relatives in 2003.[9]

Broader immigration reforms that would benefit recent immigrants have gained more momentum lately. After the AFL-CIO reversed its position and began supporting legalization legislation in 2000, there was a strong push to pass the Latino and Immigrant Fairness Act (LIFA). LIFA would have granted legal permanent residency to immigrants who had been in the United States since 1986, permitted beneficiaries of family visa petitions to remain in the United States while the petition was pending and created parity among NACARA beneficiaries. Although LIFA was defeated, the push for a broad-based legalization program continued until hijacked planes crashed into the World Trade Center, the Pentagon and a Pennsylvania field on September 11, 2001. Following the terrorist attacks, the immigrant legalization issue disappeared from the political radar until President George W. Bush’s January 2004 proposal for a temporary worker program.

President Bush’s temporary worker proposal suggests that it may now be possible to rekindle debate on these issues. The extraordinary policy making process that produced NACARA is evidence that through coalitions and with changing conditions, proposals that once seemed almost unthinkable can indeed become law. But in the meantime, migrants who lack permanent legal status continue to experience paralyzing uncertainty, agonizing family separations and economic difficulties.

ABOUT THE AUTHOR
Susan Coutin is a professor at the University of California, Irvine, and the author of two books on Salvadoran immigrants’ legal history.

NOTES
THE ODYSSEY OF SALVADORAN ASYLUM SEEKERS
1. The names of immigrants in this article have been changed to protect their identity.
2. Hugh Byrne, El Salvador’s Civil War: A Study of Revolution (Boulder, CO: Lynn Rienner Publishers, 1996), p. 20.
3. Tommie Sue Montgomery, Revolution in El Salvador: From Civil Strife to Civil Peace (Boulder, Co:Westview Press, 1995), p. 243.
4. Hugh Byrne, El Salvador’s Civil War: A Study of Revolution, p. 210.
5. U.S. Committee for Refugees, Despite a Generous Spirit: Denying Asylum in the United States (Washington, D.C.: American Council for Nationalities Service, 1986), p. 9.
6. Susan Bibler Coutin, “Smugglers or Samaritans in Tucson, Arizona: Producing and Contesting Legal Truth,” American Ethnologist, Vol. 22, No. 3, 1995, pp. 549-571. Also see Select Committee on Intelligence, U.S. Senate, The FBI and CISPES, (Washington, D.C.: U.S. Government Printing Office, 1989). Also see Ross Gelbspan, Break-ins, Death Threats and the FBI: The Covert War against the Central America Movement (Boston: South End Press, 1991).
7. Interview with author, March 1, 2004.
8. Salvadorans who fled during the war years, but who did not apply for TPS or asylum and who therefore are ineligible for NACARA, may have legalized through the 1986 “amnesty” program, a family visa petition or employment-based visas. At the very least, such migrants would have been eligible for the 2001 post-earthquake TPS that was granted to Salvadorans.
9. Banco Central de Reserva de El Salvador, “Cifra record de remesas familiares en 2003: US$2,105.3 millones.” Comunicado de prensa No. 1, 2004, http://www.bcr.gob.sv/publicaciones/comunicados.html.

Tags: El Salvador, migration, asylum, US immigration, refugees


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