21 de mayo 2024
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Since the outbreak of the socio-political crisis and massive repression in Nicaragua in 2018, more than half a million Nicaraguan migrants have entered the United States. The vast majority arrived by land at the U.S.-Mexico border, and approximately 60,000 entered by air through the humanitarian parole that allows them to stay in the country for two years.
Most of the migrants are facing an uncertain situation presently because they have not applied for political asylum and have an irregular legal status, amid a highly polarized electoral debate in which Donald Trump and President Joe Biden are competing to impose new restrictive measures on migration.
In an interview in Esta Semana, attorney Astrid Montealegre, an expert on migration issues and advisor to the Nicaraguan American Human Rights Alliance (NAHRA), and researcher Manuel Orozco, an expert on migration and remittances at the Inter-American Dialogue, warned about the seriousness of this situation and recommended that all people with an irregular legal status study their cases of political persecution or religious persecution, and file their asylum applications as soon as possible, a process that is slow and extremely complex.
“Between a rock and a hard place”
Manuel, in the article you published this week in CONFIDENCIAL, you say that Nicaraguan migrants in the United States will be “between a rock and a hard place,” in the next three years. Why?
Manuel Orozco: We are dealing with a complicated situation. The Nicaraguans who have arrived in the United States are people with an irregular (migratory) status and many of them need to undergo an adjustment to apply for political asylum. However, the conditions in which they currently find themselves are such that the asylum process may take two years.
In two years the political situation in Nicaragua may be much more complicated if the dynastic succession leads to a second fraudulent election, a process in which repression will increase. The potential return of many people who did not manage to enter the asylum process will not be possible, or there will be a deportation of people. We are talking about thousands of people. Virtually 97% of those who have arrived in the United States since 2018 are in irregular status.
Those who have arrived in this new migration wave after 2018, which also had a spike after 2021, are estimated at more or less 465,000 Nicaraguans. Most of them arrived through the border and about 60 000 of this group have arrived under humanitarian parole. What is the legal status of these different groups?
Manuel Orozco: Those who arrive at the border receive a notification to submit the possibility of an asylum application. Those arriving under humanitarian parole have the option to apply for asylum within a certain period. But in practical terms, all of these people are legally in an irregular status, that is, they have no legal status.
Many of them may have work permits, but they are in limbo. Sixty percent of those who have arrived have not applied for asylum and are really at a higher risk of possible deportation or the risk that they are going to be undocumented after an electoral process where immigration status is a central issue with a rather restrictive approach.
Astrid, you are a lawyer with expertise in immigration issues and have seen many, many cases since 2018 as part of your work as a volunteer and lawyer with Alianza Nahra, which provides services to Nicaraguans. Is asylum the only option or are there other avenues that Nicaraguans seek to regularize their status?
Astrid Montealegre: Generally, political asylum is the route that most Nicaraguans are aware of. But it is important to note that even within asylum there are different reasons for which one can request it.
There is also the possibility of employment visas, sponsorship through family visas and also adjustments to refugee status. And for our compatriots who are in Costa Rica and who have not yet arrived in the United States, also the State Department has passed a law to protect people who arrived in Costa Rica from Nicaragua, fleeing persecution of any kind before September 2023. Why do they choose this date? To avoid the “call” effect. They do not want people to go out to Costa Rica to qualify as refugees, but they take into account people who were already there as of September 2023, and in the next nine months they will be opening an office to process these refugee cases from Costa Rica.
Asylum seekers get a 50-50 resolution
We know how many asylum seekers there are at this moment. What is the trend in the process? Specifically, what has been the practice so far regarding the percentages of approval, rejection, or postponement of these cases, which I understand can last a considerable amount of time?
Astrid Montealegre: The statistics change and depend on the type of asylum case. Most of the Nicaraguans entered without any humanitarian parole program. Those are the people who face a defensive asylum process. What does that mean? Most likely they have already exceeded one year of being in the country and when they start their asylum process it will be in a judicial setting, where a judge determines the resolution, and those cases last three years or more.
There is also the affirmative (humanitarian parole) process, and in affirmative cases you don't go before a judge, you have your case decided by an immigration officer. And those cases can be resolved in as little as a couple of months, a year, and some extend over a year, but generally in areas that are not very crowded, like Florida, the affirmative asylum processes are more expeditious.
In global terms, taking into account the affirmative and defensive cases of Nicaraguans who have applied, it is generally a 50-50 approval. This is the same as the national average. We do not have higher odds than other countries in winning and that national percentage is going to vary significantly depending on the state in which the person is located, because in the United States we have a federal system, so the percentages of judges in California and New York are very different from the percentages of judges in the Texas and Arizona areas.
Manuel, in your article you talk about there being a relatively small number of judges dedicated to this activity or also officers. How much do they know about the environment of the Nicaraguan reality? I have spoken with people who have presented cases and they are surprised that the judges have very little knowledge of the repression in Nicaragua and do not have much understanding of this type of situation.
Manuel Orozco: Of the total number of Nicaraguans, almost half a million people, about 85,000 have entered the asylum application process. Of these cases, a few are resolved annually, about a thousand asylum applications have been positively approved, asylum has been granted and another thousand have been rejected. The process is so slow that there is room for very few. And part of the problem is precisely because there are very few judges, very few immigration officials who are in charge of the asylum review process. And here there is a very important legal theory debate, when it comes to determining whether the judge needs to have a sensitization or not on the issue, because the judge reviews the case according to the correspondence between the asylum request, the mounted case and what the law tells you, under what conditions a person is considered to be persecuted for political, religious and even other forms of persecution. So, judges really don't have a lot of training on these issues, and it can be an advantage or a disadvantage. Sometimes it is a disadvantage in the sense that ignorance is bold. I have been an expert in testimonies where you are talking to the judge about the situation in El Salvador and suddenly he talks to you about Haiti, or you are talking about Nicaragua and he asks you, -but there is no Ortega there. But, on the other hand, there is a need to focus strictly on the case, according to what the law tells you, and there are 700 judges. As far as we have seen, there are fewer lawyers than judges in the whole country to handle these political asylum cases. So, it's complicated. There are more than a million asylum applications that are pending right now.
What has been your experience as a lawyer, as an advisor or litigator in these types of cases? It seems that the dimension of the applicants is much larger than the resources and capacities of the system to resolve it, because we are not only talking about Nicaraguans, but also about applicants from other countries.
Astrid Montealegre: That is precisely why NAHRA was established, because there are not enough lawyers to handle all the cases. So, through a network of volunteers we help with the preparation of the forms, with preparing the evidence. NAHRA even prepares an annual country report in which we gather reports from the State Department, the United Nations, the OAS, and we also include sections for each type of persecution relevant to Nicaraguans. For example, the situation of doctors, journalists, human rights workers, and this report allows us to present it to judges in asylum cases, including immigration officials in administrative processes. The country report can be submitted up to the day of the trial and can be obtained free of charge by requesting it from NAHRA.
Rejection of an asylum claim
What happens if an asylum petition is rejected, does the applicant have another option, is there a middle ground, is there an actual danger of deportation to the country, or can that person be in the U.S. and continue working?
Astrid Montealgre: The most dangerous situation is for the person who is already in court proceedings or in detention. And if that person receives a negative response to his asylum trial, he has the right to appeal. They have a limited time, a maximum of 30 days to file their appeal. But then the appeal process can take more than five years. And if the person is in detention, it is very possible that they will have to wait their time in detention during the appeal process. When a person is in an affirmative process, then there is even more opportunity to appeal the decision because the immigration officer recommends the case for judicial review. They do not have the jurisdiction to deny the case, they can only approve it. Then, if they don't approve it at the administrative level, then it is referred for judicial review, which means a hearing and a trial. And then, if the judge denies the asylum, you will still have an appeal.
What happens to people who travel to the United States under the humanitarian parole program, with a sponsor? They are there for two years. Some will apply for asylum. Some may decide, for example, to return to Nicaragua, it depends on the particular condition and the political situation in the country. Can they return to Nicaragua or not?
Manuel Orozco: Legally, they can return to Nicaragua. That is, while you are under parole and you have not entered the asylum application process, you can return to Nicaragua. Obviously there is a very perceptible risk that there may be persecution for the fact that you left under this system. Some people who have left under parole are told by Migration when they leave: if you leave, you don't come back here. But in general, most of the people who have arrived under parole, after a year of being in effect, have not made their asylum application. Now, this is not the only procedure. I mean, parole allows you to use an adjustment of status through a relative that you have to legalize. But the main remedy is asylum. So, if the person has been there for a year and has a year left to apply for asylum and then the situation gets complicated and they have to come back [to Nicaragua], that's where they are really between a rock and a hard place.
This article was published in Spanish in Confidencial and translated by our staff. To get the most relevant news from our English coverage delivered straight to your inbox, subscribe to The Dispatch.
