New U.S. asylum rules bring confusion, fear and few options for immigrants

‘First they beat me, then my son,’ says asylum seeker in Sacramento

Melanie immigrated with her two children from Guatemala to escape gang violence. Now she seeks asylum for her family. (McClatchy is not identifying Melanie and her son by their real names because she fears it could affect their legal case.)
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Melanie immigrated with her two children from Guatemala to escape gang violence. Now she seeks asylum for her family. (McClatchy is not identifying Melanie and her son by their real names because she fears it could affect their legal case.)

Pregnant, poor and afraid, Melanie felt out of options.

Her family had been targeted by one of the gangs that ruled the streets near her home in San José Pinula, Guatemala, she said. Last year, gang members had physically attacked her and her elder son. Since then, they had continued to harass the family — as they did to everyone who wasn’t in their ranks. She was so worried about her boys — Monteroso, 15 and Christopher, 11 — that she wouldn’t let them leave the house, in fear they would come across these “bad people,” she said.

Melanie, a high school teacher, made a drastic decision. She and her boys took their family’s savings — about $10,000 — and traveled through Mexico, crossing the Rio Grande River into Texas in April with the help of a “coyote.” They arrived days before the Trump administration began its short-lived policy of separating families at the border. (Melanie’s husband stayed in Guatemala because the money didn’t cover his trip.)

Once on U.S. soil, she said, she immediately turned herself in to border patrol agents. In federal detention, Melanie passed a “credible fear” interview — the first step in an asylum claim — and the family was released after four days.

They now are living in Rancho Cordova outside of Sacramento, where a friend offered them a place to stay, while Melanie awaits her first appearance in front of an immigration judge and the September birth of her child. (McClatchy is not identifying Melanie and her sons by their real names because she believes it could affect their case.)

Melanie said she is broke and exhausted, but hopeful she can persuade a judge to grant her the permanent safety she seeks. “I don’t want to return because it’s dangerous,” she said through an interpreter. “We’re not lying.”

The odds are Melanie and her children will be deported.

Thousands of immigrants, many from Central America, are asking for asylum in the U.S. based on rampant gang violence or domestic abuse in their countries of origin. But two new actions by the Trump administration in recent weeks mean few of them are likely to win their arguments.

Asylum for abused women and those fleeing gang violence has all but ended in the U.S., regardless if a case has been pending for years or is a fresh plea at the border. The changes in policy were unexpected and unilateral — and have thrown asylum cases in California and across the country into turmoil.

In June, U.S. Attorney General Jeff Sessions made the unusual move of intervening in a domestic violence case in which a North Carolina immigration judge denied the application of a Salvadoran woman who said she had been sexually, emotionally and physically abused by her ex-husband. A subsequent appeals board ruled in favor of granting asylum to the woman. Sessions stepped in and overruled the appellate decision, restoring the lower court’s denial. Immigration courts are not part of the regular judicial system, and are entirely under the power of the U.S. Department of Justice, giving Sessions control over them.

In his decision, Sessions argued that domestic abuse was “private violence” and that because Central American societies likely don’t view married, abused women who are unable to leave their abusers as a “distinct group in society,” the United States should not either. Under current asylum laws, a petitioner must prove they are part of a “particular social group” if the bid for asylum isn’t based on race, religion, nationality or political grounds.

“(T)he asylum statute does not provide redress for all misfortune,” Sessions wrote in his decision. “The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

This past week, the Trump administration took a further step when U.S. Citizenship and Immigration Services began instructing its officers to reject new asylum seekers who made gangs or domestic violence the basis of their pleas — preventing these immigrants from even arguing their case in front of a judge.

For those who back Trump’s hardline stance on immigration, the moves are long-overdue curbs on an abused and overburdened system. Sessions’ ruling was a victory for those who argue the inclusion of domestic and gang violence victims is beyond the intent of asylum laws, and has created a loophole that allows people to make false claims that grant them undeserved entry into the country.

Before 2013, approximately one in every 100 arriving immigrants made asylum claims, according to federal statistics. Now, about one in 10 people crossing the border ask for it.

“Our laws do not offer protection against instances of violence based on personal, private conflict that is not on account of a protected ground, but over the years grounds for qualifying for asylum have greatly expanded far beyond what congress originally intended,” said USCIS spokesman Micheal Bars in an emailed statement about the new policy at his agency.

Immigration advocates said it’s unprecedented for immigration law to be changed in such a one-sided manner, and it represents an overreach of the U.S. attorney general’s power — and an attack aimed squarely at women.

“These measures are aggressive, unfair and unnecessary,” said Maggy Krell, chief counsel for Planned Parenthood California in Sacramento and a current legal volunteer for parents separated from children at the border. “It’s dramatic, it’s drastic and it’s a death sentence with no due process for traumatized immigrants who are seeking safety.”

Increase in denials

For the asylum seekers, the changes mean more fear and uncertainty.

“I’m scared. We’re scared,” said Cecelia Escobedo, an immigrant from Mexico now living in Merced who once had hopes of winning asylum for herself and her four kids.

Speaking through an interpreter, she said the recent developments have left her worried that her family will be forced back into the life-threatening situation that caused them to flee their country.

Escobedo said she was sleeping in her home in Teúl de González Ortega, Mexico when a group of men burst through her door and took her hostage in 2010.

Cecelia Escobedo, 45, of Merced, says she was told it would be almost impossible that she would be awarded asylum in the United States, during in interview in Merced, Calif., on Tuesday, July 3, 2018.

The men beat her 15-year-old and 11-year-old sons and pointed guns at them, she said. With her head covered and wrists bound, Escobedo remained a captive for about five days while her brother negotiated the ransom the bandits demanded. The crime — targeting random people for kidnapping — is an increasingly common one across Mexico as drug cartels grow in power.

When they finally let her go, the “sicarios,” as drug cartel assassins are called, warned her to leave the city or they would kill her and her family, she said. The family fled to the United States, obtaining tourist visas and planning on applying for asylum when they arrived.

“All we wanted was to get out and be safe,” she said. “We did not come here because we wanted to come here. We had no choice. It was the circumstances of that life.”

But Escobedo has discovered that asylum cases always have been difficult to win. An immigration lawyer told her it would be nearly impossible to prove her case without documentation of her ordeal, she said. She ultimately didn’t pursue it, instead opting for a type of visa given to victims of crimes and their families, following an incident involving one of her daughters in Atwater, a small town near Merced.

The slim odds of winning asylum are a reality that some say proves the system was working and wasn’t exploited. However, proponents of the recent reforms have seized on those same odds, saying they show the courts have been filled with too many flimsy cases that take too long to process, and that Trump’s crackdown was needed.

Currently, the average wait time for pending cases in California immigration courts is 715 days, according to data collected by Syracuse University’s Transactional Records Access Clearinghouse (TRAC), and there is a backlog of more than 300,000 affirmative asylum cases in the U.S., according to federal statistics.

In 2017, more than 30,000 asylum cases were heard in immigration courts, with nearly 62 percent of claims denied, TRAC data shows. That year had the largest number of cases decided since 2005, and was the fifth consecutive year that denial rates have risen.

In 2012, before the rise in denials began, 44.5 percent of people won their asylum fight.

Denial rates are higher for those from Mexico and Central America, according to TRAC data. During the six years from 2012 to 2017, Mexican nationals had 14,688 asylum cases heard in U.S. immigration courts with 88 percent of claims denied. In the same period, 79 percent of the 15,667 claimants from El Salvador were denied, as were 78 percent of those from Honduras and about 75 percent of those from Guatemala. Both of those countries had about 11,000 cases heard during the time frame.

Access to a lawyer matters: 91 percent of asylum seekers without legal representation were denied, according to the TRAC data, though immigration courts do not provide pro bono attorneys. So does the right judge. In San Francisco, one immigration judge has a denial rate above 97 percent while another denies only about 9 percent of claims.

“I understand that (the government doesn’t) want to clog the court system, because there are cases that do drag on,” said Fresno immigration attorney Sully Bryan. But proving asylum can be complicated. “You can’t just say ‘There’s violence in my country,’” she said.

Domestic violence

Successfully claiming societal violence as a cause for asylum has a long history in immigration courts. But successfully claiming domestic violence as a cause is relatively new in the U.S.

In 2014, the case of Aminta Cifuentes opened the door to it after decades of legal fights. Cifuentes, a Guatemalan woman whose husband severely abused her, including attempting to set her on fire and kicking her while she was 8-months pregnant, won her precedent-setting case known as the Matter of A-R-C-G. (Immigration cases are usually publicly known by the claimant’s initials.)

Cifuentes had sought help from police multiple times, but they told her it was a private marital problem and refused to intervene. She tried leaving her husband, but he found her and continued the abuse. She fled to the U.S. and eventually was granted asylum by arguing that she was a member of a “particular social group”: abused married women in a country where there was no help.

Since the Cifuentes ruling, thousands of women fleeing similar circumstances have sought asylum based on the idea that abused women in countries that condone spousal or relationship violence — in a de facto sense because authorities do nothing to stop it — do make up “particular social groups” as the asylum law requires.

But in his recent ruling, Sessions overturned the Cifuentes precedent, and added the gang issue into his opinion, though no gang claims were mentioned in the case he wrote about.

Shouan Riahi, lead attorney for Services, Immigrant Rights, and Education Network (SIREN) in the Central Valley, said he believes Sessions made his asylum announcement based on how he feels about the law and not based on how the law actually applies. He called Sessions’ policy changes “arbitrary and capricious,” a legal standard that has been successfully used to fight other Trump policies in federal courts.

Riahi said he expects this fight to wind up in those federal courts as well — where some immigration appeals ultimately can land, and which lie outside Sessions’ control.

“He cannot unilaterally change the law,” Riahi said. “What he intended to do was to change universally accepted and understood interpretations of the Immigration and Nationality Act. ... We’ve come to these legal conclusions after years and years of case law.”

Riahi said he will continue to argue that victims of domestic or gang violence qualify for asylum and his office will continue to represent them. Riahi said he is confident that a federal court ruling will “reign in the attorney general” and reverse the current prohibitions.

“Everyone that applies for asylum that I represent is applying because their life is in grave danger,” Riahi said.

Few choices

Many asylum seekers said despite the changes, they have little choice but to keep fighting.

It will take months if not years for any affected cases to reach the federal appeals level, said Blaine Bookey, co-legal director at the Center for Gender and Refugee Studies at UC Hastings College of Law.

Meanwhile, other cases will continue to be decided.

“It’s going to make it more difficult; (Trump) might deport all of us seeking asylum,” said Maria, who is in Stanislaus County with her 6-year-old daughter and is seeking asylum. (She requested that only her first name be used.)

She said she is running from the drug cartel violence in her hometown of Apatzingan, in the Mexican state of Michoacán. There, the sound of gunfire is common, along with news reports of mutilated bodies in garbage bags dumped on the side of the road, she said.

In early March, the attempted arrest of a high-ranking gang member triggered hours of violence throughout the region, Mexico News Daily reported. At roadblocks, gang members carjacked as many as 29 vehicles and set them on fire.

Subsequent shootings and threats forced the teachers to end classes at her daughter’s elementary school, she said.

“Weeks would go by, and there would be no classes,” Maria said. “My daughter would get so scared, asking ‘Why are there so many cars on fire?’ It was all of those people wanting to maintain control of the drug trade.”

She said local residents tried seeking help from the police, but law enforcement’s attempt to curb the violence was futile.

Maria, pregnant with her second child, said her husband drove her and their daughter to Tijuana. They walked to the El Chaparral port of entry, where they were admitted to the U.S. and put on the asylum track. (Her husband stayed behind to earn money.)

Now, Maria is waiting for her first immigration court date in late September. She can’t afford a lawyer but knows about the changes in asylum rules, and the long odds of winning her case. Her best option is to try anyway, she said.

“I’m certain if (people) lived where we lived, they wouldn’t doubt the dangers we face,” she said. “Only God knows whether they let me stay or bounce me out of the country.”