AThe United States is facing a migration crisis on its southern border. Unfortunately, media images taken from ICE immigration detention facilities have been heartbreaking. Most of these migrants have come not from Mexico, however, but from the so-called “Northern Triangle”–El Salvador, Honduras, and Guatemala.
The reasons for this migration, which has persisted through the Trump administration until now, is more than just economic, although economics is certainly a factor. In addition to poverty, official corruption and violence are driving the citizens of these countries north towards the US border.
In 2020 El Salvador, Honduras and Guatemala ranked 1st, 4th, and 14th in the world, respectively, in terms of the national murder rate.
It doesn’t get any better when these migrants travel north, either. Tijuana and Juarez, both located just south of the US/Mexico border, rank 1 and 2 in the world, respectively, in terms of city murder rates.
Meanwhile, human smugglers and drug cartels often prey upon vulnerable migrants. The fact that these conditions have failed to deter Northern Triangle migrants goes to show how difficult life is for the people who live in those countries.
In Search of a Long-Term Solution
President Biden has pledged to seek a long-term solution to the migration crisis by helping the Northern Triangle countries deal with the root causes of immigration. Biden’s US CItizenship Act of 2021 contains some measures designed to relieve the migrant crisis.
Biden´s immigration bill includes a provision for $4 billion to be allocated over four years to fight poverty, crime, and corruption in the Northern Triangle. The bill, along with other initiatives favored by the Biden administration, would:
- Establish Designated Processing Centers throughout Northern Triangle countries where intending immigrants could seek refugee resettlement in the United States. One of the primary purposes of establishing these centers in Northern Triangle countries is to discourage migrants from undertaking the incredibly dangerous journey to the US border.
- Re-establish the Central American Minors Program to allow for the reunification of children with parents who are already residing in the United States.
- Help Northern Triangle countries reduce crime through enhanced security and enforcement measures. Unfortunately, this is a long-term solution whose effects may not be fully felt for decades.
- Investing into the economies of Northern Triangle countries. In 2018, for example, the US invested $5.8 billion into the region.
The Path Forward
Ultimately, however, the foregoing measures are only the tip of the iceberg compared to the sustained initiatives that are likely to prove necessary in the long run. Some of the possible future measures that need to be undertaken include:
- Partnering with Mexico to invest money and know-how into the region. The US and Mexico have a common interest in stemming the flow of migrants.
- Targeting aid and investment to the individual needs of each country.
- Engaging with the private sector in Northern Triangle countries to create jobs.
- Working with the governments of Northern Triangle countries to root out official corruption.
There is a reason for hope. Homicide rates, for example, have fallen steadily in El Salvador and Honduras in recent years. Nevertheless, so far it is not enough. The Covid-19 crisis battered the region throughout 2020, while hurricanes devastated parts of Honduras and Guatemala leaving hundreds of thousands of people homeless.
What It’s Going to Take
There are no easy answers to the Northern Triangle migration crisis. What has already become certain, however, is that nothing will ultimately be solved by simply building more walls. Ultimately the US is going to need to build a Central American policy grounded in human rights, long-term solutions, and reasonably flexible immigration policies.
On March 4, 2021, the US Supreme Court issued its decision in Pereida v. Wilkinson. The conservative Court bucked the Biden administration´s trend of liberalizing immigration law, by making it harder for undocumented immigrants convicted of minor criminal offenses to obtain relief from deportation proceedings.
Pereida was seeking “cancellation of removal” under US immigration law. Under cancellation of removal, a non-citizen, who is not a lawful permanent resident can seek the cancellation of any removal (deportation) proceedings against them and gain lawful permanent residence in the United States, if they meet certain conditions:
Requirements for Cancellation of Removal
To obtain the cancellation of removal, nonpermanent residents must establish that they:
- Have accrued at least 10 continuous years of physical presence in the United States,
- Can demonstrate good moral character during their period of physical presence,
- Have not been convicted of a “crime of moral turpitude”, and
- Can prove that their deportation would cause “exceptional and extremely unusual hardship” to at least one family member who is either a US citizen or a lawful permanent resident.
Essentially, cancellation of removal works a lot like an immigration amnesty, except that it is very difficult to obtain and it is awarded on a case-by-case basis. Ultimately, the decision is based on the discretion of the immigration court and is based on the totality of the circumstances.
If the court refuses an application for cancellation of removal, it is difficult to successfully appeal the decision. Nevertheless, appeals are sometimes granted.
The Legal Nuts and Bolts: “Moral Turpitude” and “Intent to Deceive”
Cancellation of removal is based on highly ambiguous legal terms such as “exceptional and extremely unusual hardship” and ”crime of moral turpitude.” In Pereida, the issue was whether a crime on Pereida´s record, “criminal impersonation” (a Nebraska state law crime) constituted a “crime of moral turpitude.”
A crime of moral turpitude means a crime that was committed with some sort of evil intent. Swindling someone out of their money, for example, might constitute a crime of moral turpitude, whereas driving on an expedited driver”s license might not be.
Pereida”s Actions
Pereida”s offense was to present a fake Social Security card in order to obtain employment. The crime was certainly minor if judged by the penalty imposed–a $100 fine and no jail time. The issue, however, was whether presenting a fake Social Security card constituted a “crime of moral turpitude.”
The ambiguity here lies in the fact that the Nebraska state law Pereida was convicted of includes several distinct offenses. Some of these offenses require the defendant to have an “intent to deceive* to be guilty, while other offenses that are also called criminal impersonation” do not require an intent to deceive.
Pereida’s criminal record did not indicate whether or not his conviction required a finding of an intent to deceive. This is critical because under US immigration law, a criminal offense that requires a finding that the defendant had an “intent to deceive” counts as a crime of moral turpitude, and would thereby result in a denial of Pereida’s application.
The Supreme Court ruled that the party seeking relief from deportation bears the burden of proving that they are eligible for that relief. Since Pereida’s criminal record did not indicate whether intent to deceive was a necessary element of the crime, there was no way for Pereida to meet this burden. Consequently, Pereida lost his appeal and his application for cancellation of removal was denied.
A Disturbing Precedent
Because this case was decided by the highest court in the land, it sets a precedent for future cases that can only be overturned by the Supreme Court itself. Even the Supreme Court is unlikely to overturn its precedent, however, unless its composition changes significantly.
In the future, then, this case establishes a rule that the immigrant bears the burden of proving that the crime they were convicted of does not constitute a crime of moral turpitude. In many cases, especially with state law charges, this is likely to prove an impossible task.
The Court’s decision, however, can be effectively reversed without waiting for the Supreme Court to overturn its own precedent. Since the decision was based on the Supreme Court’s interpretation of a federal statute (the Immigration and Nationality Act), Congress can evade Pereida v. Wilkinson by simply changing the wording of the statute.
Until then, immigrants with criminal records are going to face a much more difficult time obtaining the cancellation of removal.