Winning asylum in the U.S.: imminent danger of death is not enough

Reading about the flood of children now arriving on U.S. shores from Guatemala, Honduras and El Salvador, those of us not well versed in immigration law might assume that children who can demonstrate that they will be in imminent danger of death from gangs terrorizing their home towns if deported will be granted asylum. That is probably not so.

Determinations of refugee status or asylum in the U.S. are governed by the Refugee Act of 1980, which derives its criteria from the Convention Relating to the Status of Refugees approved by the U.N. in 1951. To be granted asylum, an applicant

"must prove that he or she would be persecuted on account of one of five protected grounds: race, religion, nationality, political opinion, and social group."  

If the gangs in question are equal opportunity terrorizers, it's hard to see at first glance how those criteria would be met.

In fact, the criteria have in some cases been loosened by interpretation. According to Gregory Siskind, name partner of a firm specializing in immigration law, the concept of persecution due to "membership of a particular social group" provides some wiggle room (my emphasis):

This is the most litigated basis for asylum. Determining what constitutes a social group has proven difficult. Some courts have defined it to mean an identifiable group of people seen as a threat to the country from which they are seeking refuge. Others define it to encompass groups of people tied together because of a common characteristic that they cannot or should not be expected to change. One court has even found that a family unit constitutes a social group. The Board of Immigration Appeals defines social group to be people who share a common, immutable characteristic, whether an innate part of their existence such as gender, or a common experience, such as military service.

In recent years, this category has seen significant expansion, particularly in the area of persecution based on gender. The INS recently developed rules for cases of gender-based persecution. Homosexuality has also recently become a basis for membership in a particular social group.

It's hard to foresee how this crisis will affect the attitudes and standards of the currently vastly understaffed corps of immigration judges.  Since there's currently a two-year backlog, and the Senate immigration bill that would have vastly increased the judges' ranks has been blocked by the House, the fate of many children now being  released to their families to await eventual court hearings may be shaped in large part by the next presidential election One Bush 43 appointee denied 96.3% of all asylum cases that came before him between 2007 and 2012). 

As a footnote, some regional international bodies have expanded the criteria for asylum. The Organization of African Unity adds this:

Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.

And the Latin American signatories of the Cartagena Declaration added criteria that would protect many of these children if it applied:

Persons who flee their countries because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.

Update, 7/15: Jennifer Podkul of the Women's Refugee Commission asserts that the president can grant the children refugee status by executive order:

With the stroke of a pen, Obama could solve the current crisis of the Central American children coming to America without visas. He could, and should, declare most or all of them to be refugees under the Immigration and Nationality Act.

That statute gives any president the power to determine that an “emergency refugee situation is justified by grave humanitarian concerns” and to admit a limited number of refugees per year.