The Definition of 'Refugee' Is Out of Date. And It's Leaving People Behind.

The international idea of who counts as a refugee is over half a century old. But today the lines between "refugee," "migrant," and "illegal border crosser" have all begun to blur.
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Border Illustrations Diptych

TIJUANA, Mexico — The 14-mile wall that runs along the northern edge of Tijuana doesn't stop when it arrives at the Pacific, but continues out into the ocean for about 100 yards, along the imaginary extension of the border between Mexico and the United States. Out in the waves, the prison-style steel bollards and razor wire look severe, but also absurd. A strong swimmer could get out and around the wall's far end without too much trouble. In the course of that swim, however, an array of motion sensors, cameras, and pressure pads would alert Border Patrol. Agents would arrive on land quickly, in SUVs from the east and quad bikes from the north. The idea behind the wall is simple: Even if it is penetrable, it can deter would-be border crossers by guaranteeing that they'll be caught once they get to the other side.

But the wall—and Border Patrol—was built on the assumption that border crossers don't want to be caught. Today, like the immigration system itself, that assumption has collapsed. On a cold day in mid-December, about a month after two caravans arrived in Tijuana from Central America, families gathered on the beach on the Mexican side of the wall to surrender themselves to Border Patrol. Something about the ocean pattern, some accident of gravity, had pulled the tide unusually low, and a hole about the size of an elementary schooler's desk had appeared right where the wall met the ocean. A father tugged back some of the razor wire that was placed on the base of the wall as his family crawled through. On the other side, they held hands—father, mother, son in a line—and walked up the beach, where border agents had arrived in three white SUVs. The child looked about 10 years old; his sweater had cartoons on it. His mother had lost one of her shoes. They didn't converse with the agents waiting for them, and got straight into the back seat of a Border Patrol car.

Border Patrol agents gather on the United States side of the wall between Tijuana and San Diego, California, awaiting border crossers on the beach.

Border Patrol agents gather on the United States side of the wall between Tijuana and San Diego, California, awaiting border crossers on the beach.

More families followed them, even as Border Patrol, alerted to the crossing, arrived en masse. Agents showed up in full camouflage and night-vision goggles, with assault rifles and submachine guns. As the armed men gathered near the surf, shouting into the radio on their shoulders, more people crossed through the hole: three families, and a group of single men. On the Mexican side, a raucous crowd had collected, and before the last family climbed through the hole, a mariachi band materialized out of the dusk. It sang a mournful corridosomething about a broken promise—as a woman spread her mother's ashes into the ocean. Then the scene descended into the surreal. People shouted and sang with the mariachis. Cameras flashed. An elotero pushing a cart with street corn and other snacks brought his stall up toward the wall to see whether he could sell his wares. After the crossings were complete, an agent wearing a headlamp picked up two large rocks from the edge of the waves and threw them down in front of the hole.

Tijuana has become a city of ambiguities. In the city, you can still find polleros who will take you hundreds of miles to the east to travel across the border in remote desert, and locals assume that there are still tunnels under the wall that the authorities haven't found yet. But the sort of border crossing in December—done in plain daylight, with no intention of evading Border Patrol—is something new. It challenges the words we have for it: undocumented immigration, illegal border crossing. What do you call it when a family crawls under steel or across razor wire with the intention of placing themselves in detention?

A mariachi band mingles with a crowd on the Mexican side of the wall.

A mariachi band mingles with a crowd on the Mexican side of the wall.

The day after the scene at the border wall, Marisol, a mother from Honduras who traveled north with one of the two caravans last fall, described her decision to cross as a choice between unfreedoms. When I met Marisol, whose name has been changed to protect her safety, she was living in a tent with her three children near the border wall, in one of the most dangerous neighborhoods in Tijuana, a city with one of the world's highest murder rates. Back home, her neighbors' child had been killed, chopped up, and left in a bag on their doorstep.

The small hole that the families and other crossers crawled through.

The small hole that the families and other crossers crawled through.

Marisol and those who had crossed the night before were fleeing for their lives—but were they refugees under international law? Created in the immediate wake of World War II to protect people escaping persecution at the hands of their own government, the legal definition of refugee didn't imagine the sorts of reasons people would become refugees in the 21st century. Today, hundreds of thousands of people running from brutal gang violence or even climate change-fueled famine don't qualify for refugee status under the definition created in the last century. Without the benefit of refugee protections, these people often get treated by foreign governments as unwelcome—indeed, as soon as Marisol would cross the border, she'd become, in the arcane legal terms of the U.S. government, an illegal alien.

Like the entire border-security system, our terms for what's happening on the southern border were never built for what's happening today. And they're not working anymore.

"This tent is better than Honduras," Marisol told me, describing why she'd left Honduras for Tijuana. "And detention on the other side is better than this tent."

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Though Marisol was nervous about her children being put in detention, she was hopeful it wouldn't last long. Like many of the people who traveled with the caravans, Marisol had learned that, if she was arrested by Border Patrol, she could still ask for asylum. She also knew that, because she was traveling with children, the authorities on the other side of the wall could not legally detain her and her family for more than a few weeks. Federal law protecting the basic rights of children limits the amount of time minors can remain in immigration detention to 20 days, which means that most asylum-seeking families are released in less than three weeks and given a court date for their asylum proceedings.

For President Donald Trump, this stratagem explains why so many families are now arriving at the nation's southern border: What Trump calls the country's "broken" immigration laws are acting like a magnet, a "pull factor" drawing thousands of families northward because they know that the U.S. will have to go easy on people traveling with a child.

"They're all met by the lawyers," Trump said during a rally in Michigan in March, talking about people arriving at the border. "They say, say the following phrase: 'I am very afraid for my life. I'm afraid for my life.' I look at the guy. He looks like he just got out of the ring. He's the heavyweight champion of the world. He's afraid for his life? It's a big, fat con job, folks. It's a big, fat con job."

Two single men sit handcuffed together after crawling through a hole in the border wall and surrendering themselves to Border Patrol.

Two single men sit handcuffed together after crawling through a hole in the border wall and surrendering themselves to Border Patrol.

Part of the reason Marisol left Honduras is because she heard rumors that Central American families could get into the U.S.—but that "pull factor" in the north doesn't explain why she chose to leave as much as when.

For many of the people Marisol walked with in the caravan, through Guatemalan forests and Mexican brushland, preparing to leave Central America had taken years. For Marisol, the time from when she made the decision to leave to the moment she left took only 10 days. In early October, Marisol's neighbors found their 10-year-old son in a bag, in pieces.

Marisol was used to the killings: Since Honduras' 2009 coup, as rival gangs battled for control of her neighborhood, Marisol had begun keeping a tally of the number of murders she could hear from her house. She had counted up to eight. For many years in the past decade, the three countries that make up the Northern Triangle of Central America—El Salvador, Guatemala, and Honduras—have been some of the most dangerous countries in the world. Based on homicide rates, which hardly measure all forms of violence, El Salvador and Honduras are deadlier than many active war zones. Although the rates have slowed some in recent years, experts say the violence has decreased largely because gangs have gained full control of entire cities and neighborhoods.

"Americans hear gang and think street gangs running drugs on corners like in The Wire," says Meghan Lopez, the head of the El Salvador mission for the International Rescue Committee, a humanitarian-aid agency. "But what we're talking about is a total control. It's a complete control of the area—it is a non-state, armed actor who has claimed territory."

Marisol's son looks through a gap in the border wall.

Marisol's son looks through a gap in the border wall.

Marisol, like many of her friends, paid "taxes" to the gang that controlled her town. To live in a neighborhood like Marisol's was to constantly strategize: Will that bus take me into rival gang territory? That man outside is a lookout, but for which gang? Can I walk down that street? Will they think I'm a spy?

The boy in the suitcase challenged Marisol's calculus. She agonized over what it meant: Was it an attempt to extort the boy's parents, or had the gang targeted the child himself?

In Honduras—as well as in El Salvador and parts of Guatemala—nine is the prime age of gang recruitment for boys. Lopez says that 75 percent of gang members are recruited before the age of 12. Outside a child's school, older pandilleros will invite him to play soccer, or ask him to deliver a note. The activities might be casual, but the invitations are mandatory.

Marisol's son was already a teenager when she decided to leave, but young faced and slight featured. The gangs had approached him, but thus far the excuses he gave—he was sick, he had to help his mother—had worked. Marisol knew it wouldn't last. She ran a small shop out of her home, and when the men came to collect her "taxes," they began asking about him. Marisol also worried about her daughters, who were 12 and 16 years old. Lopez says the age of recruitment for girls is around 14, when gangs will start pressuring them to become "girlfriends of the gang," a form of sexual extortion.

Marisol knew something had to be done, but did not know what, until a different neighbor showed her a message from a WhatsApp group: A caravana was forming in San Pedro Sula, a city to the northwest. The caravan would move through Guatemala into southern Mexico, then up to the border with the U.S.

News of the caravan—and the situation on the U.S.–Mexican border—spread over WhatsApp and Facebook, and by word of mouth throughout Honduras. In the nationwide game of the telephone, different messages made different claims. Some people heard that Central Americans could get a work permit in the U.S.; others thought that Central Americans who traveled to the U.S. with a child could get in easily, or that families could cross the border without trouble, because the Americans wouldn't arrest children.

Marisol wasn't sure what would actually happen at the U.S. border, but she made a quick decision. She asked a neighbor to take over the shop and take care of her house, and she and her children packed their things.

Is it fair to say that Marisol left because she thought the U.S. government would be lenient on a mother traveling with children? The hope that the Americans might let them in was part of what led to her decision, certainly, Marisol said—as was the chance to travel with the caravan instead of paying a smuggler, something she could never have afforded.

But Marisol's decision had to do less with what she knew about the U.S., and more with what she knew about Honduras. There, her son would become a soldier. Her daughters would be forced into relationships with one or more gang members. If any one of them refused, they could all be killed. Like the other murdered families, they'd be dead in a home with "veer, oir, y callar" ("look, listen, and shut up") painted across the front of the house. At least in the U.S. they had a chance for something else.

"I think part of the error is to think of what's happening at the border as the" main reason people are leaving, Lopez says. "The movement of people out of the Northern Triangle is about the Northern Triangle. It's not about the U.S.–Mexico border."

Lopez says that the caravans and the increasing rumors about U.S. laws haven't created the desire to leave, but have, for the first time, made an alternative possible to people who believed that they would never have another option.

One man, unable to fit his shoulders through the hole at the bottom of the wall, quickly climbed up to join his wife and daughter on the other side.

One man, unable to fit his shoulders through the hole at the bottom of the wall, quickly climbed up to join his wife and daughter on the other side.

After packing a backpack each—Marisol's son's bag had Spider-Man on it; her 12-year-old wore one decorated with Peppa Pig—the family of four walked eight hours to arrive in San Pedro Sula, where a group of thousands had gathered. From that city, they walked eight to 15 hours a day for almost six weeks, sleeping in parks, in shelters, on the side of the road. Marisol says the journey was not easy. "There were accidents; people lost their lives." After traveling on foot, on rafts across rivers, in the back of trucks, and on buses for more than a month, Marisol and her three children arrived in Tijuana on November 16th, 2018.

When we met, Marisol had been waiting for more than a month to ask for asylum at the official port of entry between Tijuana and California. When she first arrived in Tijuana, she had been eager to seek asylum at the port—to tell Border Patrol that she and her children were refugees. But immensely long wait times—aggravated by the Trump administration's policy of "metering," which limits the number of asylum seekers Customs and Border Protection accepts each day—meant that she still had weeks before she had the chance to even ask for asylum. She had already spent most of her money.

In the end, she let her children make the final decision of whether to wait or to cross illegally. They decided that whatever waited for them on the other side of the wall was better than the tent in Tijuana.

Marisol hadn't met any lawyers, but she had spoken with other Central Americans, who had talked with legal experts, and she knew what to say once she crossed.

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When I asked Marisol exactly what she would tell Border Patrol when she was arrested, she said: "The same things I told you. The boy in the suitcase. That I'm afraid for my life."

But even if Marisol could prove her story, it might not have been enough to make her, definitionally, a refugee.

The definition of refugee that forms the basis of both U.S. and international law today was created by a United Nations treaty in 1951, and is not as simple as someone who's afraid for her life. Drafted in the wake of the Holocaust, the Convention Relating to the Status of Refugees describes a refugee as someone fleeing a specific kind of "persecution," based on "race, religion, nationality, membership of a particular social group or political opinion." Focusing on persecution, the legal definition of refugee was built with political exiles in mind. It envisions a distinctly 20th-century kind of oppression and totalitarianism. In U.S. history, it has most often been applied to people fleeing Communist regimes: individual political dissidents escaping the repression of their own government.

But this definition does not imagine the kind of situation that's now taking place in the Northern Triangle, where the mortal threat is real but there is no clear ideological or political divide, and where persecution often comes at the hands of non-state actors. (The current U.S. and international definition of refugee also fails to acknowledge the kind of migration that will likely define the next century: climate migration. In the past year, a huge percentage of the families arriving at the southern border have come from Guatemala, where a climate change-fueled drought has led to famine-like conditions across much of the country's highlands.)

"Many judges [hearing asylum cases] don't see the violence by these non-state actors as rising to the level of political opinion," says Kennji Kizuka, an asylum attorney and a senior researcher at the advocacy organization Human Rights First. "A lot of judges don't see the violence as having any political dimension."

This lack of legal recognition creates a sense of invisibility that, in Tijuana—a border town filling ceaselessly with people trying to make it to the other side—drives a sort of confessionalism that makes conversations between strangers, even out on the street, intense and bare. People try to prove the legitimacy and ugliness of what they've fled. In the same tent camp where I met Marisol, I spoke with an ex-police officer from Honduras whose investigation into a group of narcos led him to his own commander. He pulled up the leg of his shorts to show me the bullet holes in his thigh: "I'm not going home to become another one of the dead," he told me.

A woman from El Salvador told me that her husband had put cigarettes out on her, and that, if she went back, he'd kill her.

A farmworker from Guatemala explained how the drought in Huehuetenango, in the country's highlands, has people starving. Try to understand what it's like to be a father and see your children become gaunt, he implored me.

But none of these stories alone could make them refugees under U.S. law. The idea of refugee might seem almost spiritual, but the procedure of becoming one is rote, banal, and almost uniquely tedious.

Kizuka and other asylum lawyers have been able to win cases for people fleeing gang violence by arguing that they fall under the "particular social group" category in the refugee definition. But this means asylum seekers have to prove not only the reality of what they're fleeing, but also that this threat to their life rose to a level of persecution that their government was either unable or unwilling to stop. This is a complicated and challenging proposition, made all the more difficult by the fact that the U.S. government does not guarantee a lawyer to people in asylum cases.

Lawyers describe the difficulty of proving cases for people who have fled complicated and unclear situations. If Marisol's son, a teenager, had joined the gang, would he have been a child soldier and potentially a refugee, or a gang member and thus barred from asylum? Are the women who are forced to be "girlfriends of the gang" victims of private instances of domestic violence, or countrywide gender-based violence? Are the people fleeing starvation in Guatemala refugees, or economic migrants?

The fact that each asylum seeker has to prove her story on a case-by-case basis contributes to a massive backlog in the U.S. asylum system, which has left people waiting for months in Mexico for the chance to even ask for refuge in the U.S. Tens of thousands of Central Americans now find themselves living in precarious, and often desperate, conditions along the Mexican–U.S. border.

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When I first met Marisol and her family, it was a gray, overcast morning in mid-December. We were in Zona Norte, perhaps the most dangerous neighborhood in Tijuana. Marisol stood outside a small two-person tent, wearing a red sweater, her hands clasped tight in front of her. Inside the tent, her older daughter and her son lay sleeping. Her 12-year-old daughter sat cross-legged between them, completing a sudoku puzzle in a small book.

The avenue where Marisol had set up the tent looked like a decomposed city block: On each side of the street, rows of tents, four or five deep, lined the road, as if apartment buildings had deteriorated into tarps and canvas. Most of the people in the camp were from the Northern Triangle and had arrived in November with the second of the two caravans. At the end of the street, past two more blocks of tents, I could see the steel bollards of the wall that runs between Tijuana and California.

The tent camp where Marisol and her children had lived for almost a month, in Tijuana's notorious Zona Norte neighborhood.

The tent camp where Marisol and her children had lived for almost a month, in Tijuana's notorious Zona Norte neighborhood.

Today, when Syrians fleeing that country's civil war cross the border into Turkey, the United Nations High Commissioner for Refugees—the U.N. refugee agency—more or less immediately acknowledges them as refugees. The UNHCR has set up vast refugee camps in Turkey, and provides direct services like schools, clinics, and food aid. But even though you can find blue-vested U.N. staffers throughout Tijuana, the UNHCR is in a tricky position: Because it relies on the U.S. and the Mexican governments' invitation to provide services, it defers to those two countries to use their own asylum systems to determine who is a refugee and who is not.

As Pierre-Marc René, a spokesman for the UNHCR, explained to me, the agency provides direct aid only to people already determined to be refugees by the U.S. or the Mexican government. For someone like Marisol, essentially all the help the UNHCR will provide is instructions on how to apply for asylum in Mexico or the U.S. This means that, today, more than 10,000 people are waiting to ask for asylum who have very little access to any services and limited or no legal status to work. Many of these people have a valid refugee claim, but simply have not gone through the asylum process yet.

Last winter, I asked Morgan Weibel, a longtime asylum attorney, what she thought Americans would have said about the caravans had the people walked out of a country like Syria—a war zone. Would the government have been more inclined to see them as refugees?

"Let me answer your question this way," Weibel said. "What if you think of a place like El Salvador, or Honduras, as a war zone?"

The U.S. government clearly does not.

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Human rights groups have accused the Trump administration of essentially creating illegal border crossers out of asylum seekers by making asylum wait times intolerably long. Indeed, an internal investigation by the Department of Homeland Security found that the metering policy had turned would-be legal asylum seekers into illegal border crossers. "While the stated intentions behind metering may be reasonable, the practice may have unintended consequences," the report reads. "For instance, [the investigators] saw evidence that limiting the volume of asylum-seekers entering at ports of entry leads some aliens who would otherwise seek legal entry into the United States to cross the border illegally."

That was certainly the case for Marisol. Given the option, she would've asked for asylum at the port. But after a month of waiting, she couldn't take it anymore.

Marisol's decision to cross, mirrored by that of thousands of families across the length of the border, raises a question: Why not stay in Mexico?

Pedestrians walk up to El Chaparral, the official port of entry from Tijuana into California—one of the busiest border crossings in the hemisphere.

Pedestrians walk up to El Chaparral, the official port of entry from Tijuana into California—one of the busiest border crossings in the Western hemisphere.

The answer to this also explains why many people have stopped relocating internally in Central American countries: In the Northern Triangle and up through Mexico, gangs have solidified control in the nations' most impoverished regions. People who once would have become internally displaced—for example, those moving to a new town in search of a job—now feel compelled to leave their country entirely. As gangs consolidate extreme control in poor and desperate neighborhoods and towns, people can't just move into a new neighborhood, because it might mean crossing a territorial line. Though these countries have safe areas, the high cost of living means that these secure cities and neighborhoods aren't accessible to low-income migrants. Take Tijuana, for instance: In the beachside city, tourists can still stay in nice hotels. But for Marisol and her children, the only options were the most dangerous—and thus the cheapest—neighborhoods.

Migrants from the Northern Triangle also face an additional threat in Mexico: In cities across the country, Central Americans are targeted for exploitation, robbery, assault, and rape because they are foreigners. Mexicans can notice a Honduran or Salvadoran accent, and that simple fact of vulnerability can make a person a target. According to a 2014 study by the global-health-services non-governmental organization Médecins Sans Frontières (Doctors Without Borders), an astounding 68.3 percent of Central American migrants and asylum seekers reported having experienced violence during their journey through Mexico, and a third of women had been sexually abused. Furthermore, many of the crime syndicates and cartels that control neighborhoods in the Northern Triangle are international, and can pursue people across borders into Mexico.

Nonetheless, everyone arriving at the U.S.–Mexican border from the Northern Triangle is regarded by the U.S. authorities as an "economic migrant" trying to enter the country illegally, even if she is asking for asylum. Asylum seekers are essentially guilty until proved innocent: Even if they do not break any law and present themselves at an official port of entry to ask for asylum, the first step of the process is detention. Once asylum seekers pass a "credible fear" interview—confirmation that their claim is not frivolous—the government has the option to parole them. But under Trump, most asylum seekers have been kept in detention for as long as possible during the duration of their proceedings. Cases currently take anywhere from six months to five years, which means that, today, some asylum seekers—who may well go on to be declared refugees—have been sitting in detention for years without having committed any crime or had any charges filed against them.

The inevitability of detention had, in a way, made the decision to cross simple for Marisol's family. When I talked with her the morning of the day she would try to get into the U.S., she had just received word of what had happened at the beach the night before: A hole had appeared in the wall. People were getting through. It was the news she'd been waiting to hear, but the prospect of crossing still filled her with dread.

"Do you know when you'll cross?" I asked, as well as inquiring into what number she had on La Lista, the semiofficial ledger that the asylum seekers themselves had created to keep track of whose turn it was to ask for asylum at El Chaparral, the official point of entry from Tijuana to San Diego, California.

"My number is maybe going to be called in a month," she said. "But we're crossing today."

Marisol's family joins a group of others intending to cross the border.

Marisol's family joins a group of others intending to cross the border.

Marisol told me she hoped that she and her children wouldn't be detained for long—or separated, as she had heard the Americans were once doing. But she said that even the possibility of a months-long detention or separation wouldn't change her decision to cross. "I trust God will keep my children safe and strong," she said. "And at least in detention they'll have food and be safe."

That afternoon, the family of four built a small pile of the things they'd leave behind. Marisol's teenagers said goodbye to friends they'd made. Finally, as evening fell, Marisol's family joined a group of others who would also try to cross. From the camp, they walked to where a bus would take them to the coastal neighborhood of Las Playas, and from there to the beach, where they would try to climb through the hole that had appeared at the waterline the day before. Marisol's children all wore two sweaters, and her daughters wore jeans over their leggings. They'd heard from others that the Customs and Border Protection detention facilities would be cold (many migrants call them hieleras, or ice boxes), and that people would be forced to sleep on concrete floors.

"Where are you going?" a woman shouted from a shopwindow as the group walked through the neighborhood. "Al otro lado!" one of the teenagers in the group responded. "To the other side!" The woman shook her head and crossed herself. "God be with you," she said.

The border wall extends into the Pacific between Mexico and the United States.

The border wall extends into the Pacific between Mexico and the United States.

When Marisol and her children arrived at the beach, they found that the hole in the wall had slipped back under the tide. When they felt around for it in the cold green water, they discovered that Border Patrol had, in the past day, attached a metal sled blocking the entrance.

I asked Marisol what she would do next. She was quiet for a long time, then said something about finding a place to sleep on the beach.

The next day, I returned to the camp where I had met her family. As I walked down the row of tents, I got to the gap where theirs had been. In a pile on the pavement was what they'd left behind: a plastic bag full of apples, a paperback Spanish Bible, and the book of sudoku puzzles.

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