When Deportation Is A Death Sentence

For years, most undocumented immigrants facing deportation in the U.S. were given a chance to go before a judge—to show evidence, call witnesses, and make a case for why they should be allowed to stay. In 1996, Congress revoked that right for tens of thousands of immigrants, expanding forms of “summary removal,” which can take place without a hearing or judicial input. By 2013, more than eighty per cent of deportations were nonjudicial, with the result that life-or-death decisions now routinely rest in the hands of immigration authorities at the border.

Even when asylum seekers get the opportunity to see a judge, it can be difficult to prove that their fears merit legal relief. Asylum seekers aren’t entitled to lawyers, and children as young as three have been told to represent themselves in immigration court. According to Transactional Records Access Clearinghouse, at Syracuse University, asylum seekers who find legal representation are five times more likely to win their cases. Geography is a strong determining factor in their fates. When the Government Accountability Office studied the outcomes of asylum cases in courts nationwide, it found significant geographical disparities in the responses to nearly identical situations. Between 2007 and 2014, some sixty per cent of asylum applicants won their cases in New York City, while in the courts of Omaha and Atlanta less than five per cent did.

Perhaps the most formidable challenge for asylum seekers is that the Second World War-era categories of protection aren’t well suited to immigrants fleeing modern gang violence. Courts resist recognizing the asylum claims of people who have been targeted by MS-13, for instance, because the motive for violence rarely fits the criteria. For victims of domestic violence, the legal protections, including the Violence Against Women Act, are slightly more favorable. If Laura had gone before a judge, she could have had multiple options for potential relief, including a U visa, for crime victims. Still, the legal scholar Blaine Bookey writes, “Whether a woman fleeing domestic violence will receive protection in the United States seems to depend not on the consistent application of objective principles, but rather on the view of her individual judge, often untethered to any legal principles at all.”

Not long ago, I met a young mother who asked to be identified by her middle name, Elena. In Honduras, where she grew up, her teen-age brother was murdered by MS-13 for being gay, another brother was killed for refusing to join the gang, and her sister was shot for ignoring a gang leader’s sexual advances after he’d raped and impregnated her. A different gang member began pursuing Elena, and fired shots at her house after she turned him down. She reported the crime to police, and then learned that he was planning further retaliation against her.

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“Time traveller for dinner again?”

In 2012, Elena crossed the U.S. border near Eagle Pass, Texas, and told a Border Patrol agent that she feared for her life. He logged her possessions: a black sweater, a hairband, gray shoelaces, and a key chain with photographs of her two children, whom she’d left behind in Honduras. He asked, “Would you be harmed if you are returned to your home country?” He wrote down a single word: “No.”

In detention, Elena fought back against this supposed denial, and won a hearing with an asylum officer, who corrected the record. Here she encountered a new obstacle. After she related her experiences, the officer asked her whether she was persecuted on account of her race, religion, nationality, political opinion, or membership in a particular social group—the refugee criteria created by the United Nations to reflect the political threats of 1951. Elena answered no on all counts, and the officer determined that she did not qualify to apply for asylum.

Elena appealed, requesting a hearing with a judge. Asking to go before an immigration judge often means a long stint in detention, and detention can mean poor food, minimal medical care, and scant access to legal counsel. In the past, federal policy has encouraged releasing asylum seekers while they await court hearings, sparing taxpayers the cost of detention. But in the last year of Obama’s Presidency, and then under Trump, the percentage of asylum seekers who were granted parole plummeted. Government data obtained in a civil-rights lawsuit showed that, in one New York facility, fifty per cent of parole requests were granted in the months immediately before Trump’s Inauguration. In the months after, twelve per cent were.

After three months in detention, Elena was granted a rare hearing before an immigration judge. The hearing took place virtually, with the judge appearing on a video monitor. He asked Elena one question.

“Did you move to any other city in Honduras before coming to the United States?” he inquired.

“No,” she said.

“Well, the government of the United States doesn’t afford you protection for this type of reason. I affirm the asylum officer’s decision. Nothing further.” Elena was deported two weeks later.

Back in her home town, Elena was assaulted at gunpoint by the man she’d fled. He tortured her, holding a lighter to her skin. Other gang members cracked her thirteen-year-old son’s skull. She fled, with her kids, to a tobacco-farming town in western Honduras, where the man who’d been pursuing her found her again. Once more, she escaped to the U.S. This time, authorities agreed that Elena’s fear—and the threat to her kids’ lives—was credible. But, like Rosaleda, she is barred from receiving asylum because of her prior deportation.

Many immigrants, after being deported, never get a second chance to prove their claims. Constantino Morales was a cop in Guerrero, Mexico, until he tried to break up a drug cartel and became a target of violence. He escaped to the U.S. and worked at a Cheesecake Factory in Des Moines, Iowa, and then became a popular laborers’-rights advocate. As with Laura, a minor traffic stop led to his removal, which he initially fought. At a community meeting with Tom Latham, at that time a Republican congressman, Morales said, “If I am sent back, I will face more violence, and I could lose my life.” Morales had applied for asylum a month earlier. He was denied. At the time, the U.S. State Department called Guerrero “the most violent state in Mexico.” Seven months after Morales’s deportation, he was shot and killed.

In October, Attorney General Jeff Sessions decried the “rampant abuse and fraud” in the asylum system and said that “the system is being gamed.” The Trump Administration has called on Congress to crack down, which federal immigration judges may be doing already. For the past several years, asylum grant rates have declined. In 2017, judges rejected some sixty per cent of asylum seekers, the highest denial rate in more than a decade.

Protections have also evaporated for many refugees seeking resettlement in the U.S. Trump has portrayed refugees from countries such as Syria, Iraq, and Somalia not as candidates for humanitarian assistance but as national-security threats. In his first days in office, he banned many of them from travelling to the U.S. The ban is being contested in ongoing litigation. Several asylum and refugee officers told me they worry that the ban, and the inflamed discourse about refugees more generally, misrepresents their highly comprehensive vetting process, and undermines core American values.

The road where Laura was pulled over for a routine traffic stop, which led to her return to Mexico and her death. “When a woman is afraid,” Laura’s mother asked, “why can’t you give her the opportunity to show her documents, to show her evidence?”

Photograph by Carolyn Drake / Magnum for The New Yorker

“We have a great mission characterized by extreme caution and care,” Michael Knowles, a U.S. asylum officer for the past twenty-five years, told me, speaking as the president of Council 119, a union representing refugee and asylum officers and other staff of U.S. Citizenship and Immigration Services. “Ours is a dual mission—to identify people who aren’t refugees and who, worst case, might wish us harm, but also to identify and protect refugees.” At a meeting in March, 2017, with John Kelly, the Secretary of Homeland Security at the time, Knowles warned that asylum and refugee officers are “deeply concerned” about the future of the program. Knowles told me what he wished he could have said to Kelly: “You’ve already unshackled Border Patrol. Please, don’t put the shackles on us.”

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