In December, I gave a snapshot of the Trump administration's refugee and asylum policy in FY 2020 and noted some of the changes to expect with the upcoming Biden administration. As I noted then, most, if not all of Trump's immigration policies will likely be reversed by the Biden administration. These changes, however, won't be immediate, as my colleagues Mark Krikorian and Andrew Arthur have pointed out. The Biden team knows that changing the immigration system too quickly could trigger a crisis at the border, with thousands of migrants from Central America rushing to claim asylum in the United States; a preview of such flows was given by my colleague Todd Benson who wrote about "migrants chanting Biden! Biden!" as they attempted to cross the border into El Paso at end of December.
One program in connection with border crossings, however, is probably set to be revived quickly by the Biden administration. The Central American Minors (CAM) Refugee/Parole program, launched by the Obama administration in 2014, expanded in 2016 by that same administration, and terminated in 2018 by the Trump administration, is likely to be reinstated in early 2021. The Biden administration immigration bill proposes to do just that, but since CAM was originally set up by the Obama administration via executive action, it could be restarted whatever happens to the bill in Congress.
The Central American Minors program was initially set up to provide certain minors (later expanded to include adults) in El Salvador, Guatemala, and Honduras the opportunity to be considered, while still in their home country, for refugee resettlement in the United States. Individuals found ineligible for refugee status were considered for the possibility of entering the United States under parole. Those who could not be processed in their own countries had the opportunity to be transferred to Costa Rica under the Protection Transfer Arrangement (PTA) — mostly funded by the United States — before being resettled here. Unlike CAM, the Trump administration did not terminate PTA.
The Biden administration is likely to reinstate and expand on both programs in 2021. Many eligibility conditions could be lifted for CAM applicants, such as legal presence for relatives in the United States, proof of kinship, DNA testing, background checks, medical clearance, costs, etc. PTA resettlement spots could be expanded and funding increased. Both programs should be running full speed in the coming months as they provide convenient (and low-profile) back-door entry to Central Americans wishing to come here and a safe alternative to risky crossings of the border. They give the new Biden administration the tools to admit increasing numbers of Central American minors and adults behind the scenes, without having to deal with disturbing and politically inconvenient images from a border crisis.
A Response to the 2014 Border Crisis
The Central American Minors Refugee/Parole program was established in December 2014 by the Obama administration to offer minors a safe alternative to a risky crossing of the border after flows of unaccompanied minors from Central America illegally crossing the border from Mexico to the United States reached peak levels during the summer 2014. The initial plan was to provide certain minors in El Salvador, Guatemala, and Honduras the opportunity to be considered for refugee resettlement or parole in the United States while still in their home country. In-country processing programs are quite uncommon and were used as exceptional humanitarian recourses by the United States following, for instance, the Vietnam War and the 1990 Haiti earthquake.
The CAM program allowed parents 18 years of age and above who were lawfully present in the United States (on Permanent Resident Status, Temporary Protected Status, Parole, Deferred Action, Deferred Enforced Departure, or Withdrawal of Removal) to ask for their children to come and join them. To qualify, children (whether biological, step, or legally adopted) had to be unmarried, under the age of 21, and residing in El Salvador, Guatemala, or Honduras. They had to also meet the definition of refugee or be eligible for parole.
The program was met with limited enthusiasm, as I explained in a post in 2016. The conditions and costs involved dissuaded many from participating. First, as mentioned, the parents (age 18 or above) had to be lawfully present in the United States. Second, children (under 21) had to qualify for refugee status (or be eligible for a humanitarian parole after they demonstrated risk of harm). Parents of minors worked with a refugee resettlement agency in the United States and a petition was then filed with the State Department. A DNA test (paid for by the applicants themselves) was also required to prove kinship. If the petition was accepted and the DNA test was positive, the International Organization for Migration (in collaboration with the State Department) prepared the child for an interview, in the child's country of residence, with a U.S. Citizenship and Immigration Services (USCIS) refugee officer. The child was interviewed and granted (or not) refugee status. Background checks and medical clearance were also required. Finally, the child was resettled with family members in the United States and could apply for a green card one year after arrival.
Another (if not the main) reason for this initiative's lack of success was the fact that the majority of the Salvadoran, Guatemalan, and Honduran immigrants present in the U.S. are here illegally, which makes them ineligible to participate. Not to mention that parents legally present in the United States can already sponsor their children for immigrant visas instead of going through this process.
Faced with the limited success of the program, the Obama administration decided to expand it in 2016 to include additional categories of applicants. I wrote in detail about this expansion here. First, the children no longer had to be minors: sons and daughters of a U.S.-based lawfully present parent who were over 21 years old could qualify. Additional categories of applicants, when accompanied by a "qualified child" (the "child" whom parents are petitioning for) were also considered under this program, including the in-country biological parent of the qualified children (if only one parent was in the U.S.) and the caregivers of qualified children who are also related to the U.S.-based lawfully present parents (such as grandparents or aunts and uncles).
To recap: The Central American Minors program was not just for minor children sponsored by parents already in the U.S. — adult children, married children, biological parents, and "caregivers" were also eligible for the program.
PTA. In conjunction with CAM's expansion in 2016, the Obama administration, with the collaboration of the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM), set up a specific refugee resettlement system called Protection Transfer Arrangement (PTA) to be able to process certain individuals from El Salvador, Guatemala, and Honduras in a transit country, and then fly them to the United States. The PTA was described by UNHCR as "an innovative life-saving mechanism that provides individuals exposed to extreme risks in their country of origin with a safe and legal access to a durable solution in a resettlement country via a country of transit." In 2016, Costa Rica agreed to act as a "country of transit" and entered into a protection transfer arrangement with the UNHCR and IOM.
Trump: Ending CAM and Focusing on PTA
The Trump administration decided to phase out the CAM Program in 2018 as "the vast majority of individuals accessing the program were not eligible for refugee resettlement." Most Central American children by UNHCR's own appraisal in 2014 did not even meet the refugee status requirements. The Migration Policy Institute had also concluded in 2015 that "being forced to join a gang or experiencing violence do not generally qualify as a basis for refugee status or fall readily into one of the refugee definition categories."
The parole option of CAM was terminated in August 2017. On June 13, 2018, a complaint was filed in the Northern District of California challenging the August 2017 decision to terminate the CAM Parole Program and related issues. A settlement agreement was issued in 2019 that allowed USCIS to reopen and continue processing certain CAM parole cases, including individuals who had received a conditional parole approval notice that USCIS then rescinded in 2017 following the CAM parole program's termination.
With CAM terminated, DHS/USCIS and the State Department under the Trump administration planned to focus instead on the following:
[M]ore targeted refugee processing in Central America through the Protection Transfer Arrangement (PTA) with the Government of Costa Rica, UNHCR, and IOM. Through UNHCR and IOM, the U.S. government pre-screens vulnerable Salvadoran, Honduran, and Guatemalan applicants and will transfer applicants who qualify for protection to Costa Rica, where they are interviewed by DHS/USCIS and considered for resettlement to the United States. In some situations, the USRAP [United States Refugee Admissions Program] may decide to process UNHCR-identified cases in one of the three countries.
UNHCR's Evaluation of PTA
UNHCR evaluated the "effectiveness of the Protection Transfer Arrangement in Central America" in a 2018 report. As explained in the report, this "innovative protection mechanism" was initiated by UNHCR in September 2016 in response to the increasing number of people fleeing what it called the North of Central America (NCA) countries — El Salvador, Honduras, and Guatemala (often called the Northern Triangle). UNHCR, IOM, and Costa Rica signed a memorandum of understanding in July 2016 to "identify and resettle high risk cases to a third country while transiting through Costa Rica for a maximum period of six months." As set out in the MoU, the temporary stay must not last more than six months and there should be no more than 200 individuals for the PTA in Costa Rica at any given moment. Moreover, Costa Rica is not to accept cases that have not been pre-approved for resettlement by a resettlement country.
It is clear, according to UNHCR, that the "PTA's selection criteria have been primarily established taking into account the requirements of two countries, the United States of America as a resettlement country, and Costa Rica as the transit country." (Emphasis added.) The United States committed to accept individuals for resettlement referred through the PTA and awarded UNHCR $2.6 million from 2016 to December 2018 to implement the program.
UNHCR outlined some of PTA's results for the period under evaluation. At the time of the evaluation, only the United States had taken cases in 2018 (the evaluation covered the period September 2016 to August 2018):
140 persons were resettled under the PTA to four resettlement countries, the United States of America (83), Canada (11), Australia (30) and Uruguay (16); and 71 were resettled through the ICP [in-country processing]. In addition, 75 individuals have been accepted by a resettlement country but are awaiting their departure from Costa Rica and another 1,885 individuals have been considered for the PTA but were either screened out, rejected by a resettlement country, or are pending a final decision. In line with resettlement in general, the PTA is not subject to ceilings for numbers of persons to be resettled for the programme to be successful, however planning figures (or targets) are in place for referrals and for using the full capacity in Costa Rica. The evaluation however finds that the PTA was unable to fill all the potential spaces in Costa Rica or in the United States of America, and at the same time, it also invested resources in a significant proportion of cases/individuals which were subsequently screened out from the PTA. [Emphasis added.]
So, in a period of under two years, some 2,100 individuals were considered for the PTA. Of those 2,100, only 140 (6.7 percent) were successfully resettled (mostly to the United States), while another 75 (3.6 percent) were accepted for resettlement but were awaiting departure.
The evaluation underlined three components influencing the limited numbers of persons resettled:
- Number of resettlement places provided by a third country;
- Capacity and acceptance of the transit country (so far only Costa Rica with 600 individuals per year maximum and 200 at any one time); and
- Capacity of both the PTA partners and UNHCR offices to identify suitable cases/individuals at any given time to meet the full capacity of both 1) and 2).
UNHCR linked to a BBC news story on the "migrant caravan" heading toward the United States in 2018 to conclude:
The ongoing developments in the region and the consistently high numbers of persons seeking asylum from the NCA countries confirms that the PTA must be placed in the context of broader protection efforts, both in country of origin and as part of responsibility sharing among States. [Emphasis added.]
Translation: increase the number of resettlement places provided by a third country (mainly the United States), increase Costa Rica's capacity and/or willingness to process more individuals (perhaps with more funding), and find more applicants to fill in the spots.
Biden Administration: Restart and Expand CAM and PTA?
With yet another caravan headed north from Honduras, "driven by hope that an incoming Joe Biden presidency will open gates closed by the outgoing Trump administration", as my colleague Todd Benson recently noted, Biden — not ready to open the gates (just yet) — can be expected to revive CAM and further expand eligibility, as well as to reinforce programs like PTA and other in-country processes.
CAM could be further expanded by allowing those illegally present in the United States to also petition for their adult children and their families, as well as for other family members or acquaintances; also, requirements like proof of kinship and DNA testing, background checks, and medical clearance could be eased or dropped altogether. PTA could also be expanded with the United States committing to accepting more individuals for resettlement referred through the PTA and devoting more money to the program.