The Central American Minors Program, the Administrative Procedure Act, and the International Refugee Convention

June 14, 2019
Mason Hill
Third-year student at the University of Michigan Law School

On April 12th, 2019, after close to a year of litigation, the government settled a lawsuit filed by the International Refugee Assistance Project (IRAP).[1] The settlement of S.A. v. Trump meant that 2,700 child migrants who had received conditional parole to enter the United States under the Central American Minors Program (CAM Program) would still be able to enter the country and reunite with their family members. This ruling came on the heels of a March 2nd ruling that the Trump administration’s rescission of the CAM program was a violation of the Administrative Procedure Act. The judge said that this group of immigrants had incurred a reliance entitlement to enter under the CAM program. While the settlement is a substantive victory for those that relied on the program, the CAM program nevertheless has been ended moving forward. Many of the immigrants who applied for the CAM Program had done so in lieu of entering the United States as a Convention refugee or applying for asylum from within U.S. borders. The sudden, politicized reversal of the program, and with it a pathway that many potential refugees had relied upon to gain lawful immigration status, illustrates the dangers of measures that attempt to react to a particular situation instead of the more systematic approach envisioned by the Refugee Convention.

The Obama administration started the CAM Program in 2014 in response to a marked spike in migrants fleeing from the three “Northern Triangle” countries of Honduras, Guatemala, and El Salvador. The number of persons claiming asylum in the United States based on a fear of organized crime in these countries increased by an order of magnitude from 2012 up until President Obama announced the CAM program in 2014. The CAM program was an earnest attempt to group together different categories of people: unaccompanied minors, family members of those that were related to persons already granted asylum in the United States, and those seeking asylum as an international refugee.  The animating idea behind this policy was to help hasten their lawful entry into the United States by expediting the verification of their sponsors and other matters while they were out of country. Achieving increased efficiency in processing asylum claims meant that the United States would channel its refugee status determination system through this regionalized program that sought to conduct extraterritorial adjudications.

In 2017, the Trump administration sought to deliver on a campaign promise for increased restrictions on legal immigration. On January 27th, a variety of executive orders were issued that directed the Department of Homeland Security to make dramatic changes to U.S. immigration policy. The Department of Homeland Security formally ended the CAM Program in August 2017. This revocation impacted hundreds of people who had already filed, and many more who were in the process of applying for immigration relief but were still physically located outside the United States.  Chaos ensued, and litigation began over the next year and a half because of the abrupt nature of the termination of the program, the reliance interest that applicants had incurred because of it, and the lack of notice and comment rule-making that underscored the means of the decision.

Attorneys should pursue all litigation strategies that help them achieve their client’s objective. Using the Administrative Procedure Act (APA) to protect the reliance interest of refugees was a good strategy that ensured hundreds of vulnerable persons that had relied on the U.S. government’s promises of immigration relief would not be irreparably harmed by an unlawfully abrupt change in U.S. immigration policy. Observers should be thoughtful to differentiate between a victory for vulnerable migrants, and a victory for refugee law. Victories that are based on administrative procedure rather than substantive international law are going to be inherently less durable in the long-term. The APA regulates how quickly policy programs that originate in U.S. agencies (like the CAM Program) can be altered. This emphasis on procedure rather than substance, which is demonstrated in the S.A v. Trump opinion, means that the Trump administration can still roll back the CAM Program.  An APA remedy does nothing to prevent a more procedurally diligent U.S. government from shirking international legal obligations.

The CAM Program, with its emphasis on pre-emptive, extraterritorial adjudication, screening for family reunification, and regional focus, is something different than the kind of universal, treaty-based definition of who is a refugee envisioned by the International Refugee Convention. Beyond the regional, as opposed to general focus, the emphasis on extraterritorial adjudication is problematic.  Processing asylum applications extraterritorially makes refugee protection seem self-defeating. After all, refugee status is meant to protect those who are unsafe in their home countries; delaying a passage to safety seems self-defeating. These kinds of extraterritorial adjudications are inconsistent with the extraterritorial requirement of refugee determination.

The International Refugee Assistance Project should be applauded for using the APA to slow down a haphazard revocation of the U.S. government’s promise to individuals fleeing the Northern Triangle. However, in terms of conceptualizing a regime that generates a lasting, stabilizing effect, and that is capable of responding to concrete and immediate crises, administrative law challenges and programs like the CAM Program are not an alternative for the faithful implementation of the International Refugee Convention. Procedure can provide relief in individual cases, but it cannot in and of itself provide the sustainable basis of surrogate national protection that the Convention seeks to provide.

Suggested Citation: Mason Hill, The Central American Minors Program, The Administrative Procedures Act, and the International Refugee Convention, RefLaw (June 14, 2019), http://www.reflaw.org/the-central-american-minors-program-the-administrative-procedures-act-and-the-international-refugee-convention/ 

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