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Asylum under Siege

Ana Puente Flores and Valeria Luiselli
6 Snaps

The women asked:

“What time is it?”

“Are we still in August?”

Others said:

“I’ve lost track of time since my son and I got locked up in here.”

“I was separated from my children on June 9. I don’t know how many days have passed.”

As in any incarceration space, time moves at a strange pace in the South Texas Family Residential Center in Dilley, the largest immigrant family detention center in the United States. Dilley is run by Immigration and Customs Enforcement (ICE) and CoreCivic, the private prison corporation contracted by the federal government to manage nearly 63 percent of the immigrant jails in the US. It’s one of 120 active immigration detention spaces in the country’s rapidly expanding, and extremely profitable, prison industrial complex.

While these testimonies from women and children at Dilley were recorded in 2018, the fear they express is current. Conditions for families in detention are the worst they’ve ever been. Twenty-four people have died in ICE custody since 2017, including six children. Migrants are often held in rooms with freezing temperatures and denied medical treatment. In an El Paso detention center, a midwife wishing to serve pregnant women was barred from entering; the facility cited “security concerns.” Such cases are the rule.

The United States has constructed the largest immigration detention infrastructure in the world. On average, forty-two thousand people were detained each day in 2018—the highest rate on record since ICE began tracking the data, in 2001. Also in 2018, US Customs and Border Protection made approximately 396,600 apprehensions, a 124 percent increase from the year prior. It’s no surprise, then, that cells are overflowing. The most overcrowded facilities are at the border. They feature cages, which migrants call perreras (dog pounds). Photographs have shown migrants sleeping there on concrete floors, and children going unfed and unwashed.

It is clear that ICE facilities do not provide adequate resources to migrants. But the more important problem, the one we must turn our attention to, is why detention is a condition imposed on migrants in order for them to begin the process of claiming asylum. While their particular circumstances and stories vary, the women and their children held in the Dilley facility have one thing in common: they are fleeing circumstances of grave violence in their home countries, have come to the United States to seek legal protection, and are detained in a federal prison complex while they hope to be granted due process. Dilley holds 2,400 women and children, most from the countries of the Northern Triangle (Honduras, El Salvador, and Guatemala). Despite laws requiring that a detention center that incarcerates children “shall not be equipped internally with major restraining construction or procedures typically associated with correctional facilities,” the Dilley detention center is a jail—and is in fact known colloquially as “baby jail.” No physical contact between detainees and volunteers is allowed beyond a handshake, and although detainees question the quality of the water, volunteers are not allowed to offer them bottled water.

The majority of the women whose voices appear here arrived in the United States in the early summer of 2018, after the Trump administration enacted its “zero tolerance” policy and family separations began. Last summer, news of the family separations traveled around the world, haunting the minds of millions with leaked sound footage and brutal images of children being torn away from their parents and put inside cages. After a generalized public outcry, as well as an seventeen-state lawsuit against the government, President Trump put an end to family separations—though some families have yet to be reunited, and many more are still being separated through ICE raids.

The photos and stories in the media are shocking. The public must protest such injustices. But to understand how immigration rights for women and children are being systematically eroded, our attention must shift from accounts of individual victimization and violence to the legal and systemic threats to women’s freedom. Over the past two years, the Trump administration has made policy changes as well as amendments to immigration law. Most are made so swiftly and are so technical that the general public is unlikely to keep up.

The futures of the mothers and children detained in Dilley and other detention spaces across the country remain uncertain. The asylum they seek depends on this administration’s less visible, more constant, and equally bewildering bureaucratic violence—one enacted on paper, through policy memorandums and amendments to immigration law. While the Trump administration wages loud “shock-
doctrine” attacks against minority groups, such as the assault on immigrant caravans, its bureaucratic assault is more silent, surreptitious, and may be even more toxic.

*

In the visitation trailer at the Dilley detention center, volunteers interview women to help them prepare for their “credible fear interview” with asylum officers. This is the first formal step toward being granted legal protection in the US. The volunteers have to be cleared by ICE and approved by the Dilley Pro Bono Project (DPBP), part of the Immigration Justice Campaign. A long line forms in front of the registration sheet, where each volunteer and DPBP staff member receives a CoreCivic badge with an ID number. As volunteer attorneys, legal interns, and staff shuffle through the visitation trailer every morning, detainee women and their kids are lined up outside. The CoreCivic guards—sometimes patient, other times cruel—remind them to stand in line and keep quiet. Children who speak indigenous languages, even if they wear badges that say I speak Mixteco or I speak Q’eqchi’, are given instructions in English or sometimes Spanish, and are often scolded when they do not understand.

The right to seek and be granted asylum in a foreign territory is articulated in The Universal Declaration of Human Rights, signed in 1948, in the aftermath of World War II, by forty-eight member states of the United Nations. The 1951 UN Refugee Convention, ratified by 145 nations, defined refugee as “an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.” The convention also encoded basic rights that a refugee should be afforded, though the specifics of asylum proceedings were left for each country to determine.

In the United States, any person seeking refugee status is usually first screened by an asylum officer, who will conduct the credible fear interview. If the officer determines that the person is eligible, the next step is to sign release papers with ICE. If the asylum officer decides that the asylum seeker’s fear is “not credible,” they will receive an immediate deportation order. The denial rate for asylum has been growing as applications increase. According to reports out of Syracuse University, just 15 percent of asylum applicants pass the initial credible fear review. Of this group, only 35 percent are awarded asylum. A “not credible” decision can be appealed in immigration court, but only with the help of an attorney.

This is where pro bono organizations step in. They prepare asylum seekers for their credible fear interviews and find volunteer attorneys and legal interns who can serve as legal representatives. Since asylum grants are based on fear of persecution on account of “race, religion, nationality, political opinion, or membership in a particular social group,” the objective of the preparations is to link a woman’s persecution to her belonging to a “particular social group.”

After initial biographical questions, legal volunteers ask women about their fear of persecution.

To the question “Have you ever been threatened or hurt by anyone in your home country?,” women almost invariably reply: “Yes.”

The questions proceed.

“Who threatened you?”

“MS-13 gang members. Barrio 18 gang members. The police. My husband. My partner. My boyfriend. My children’s father.”

“What did he do?” or “What did they do?”

“They beat me. He raped me. He said they were going to kill me.”

“Why did they target you specifically?”

“Because I resisted his advances. Because I didn’t want to hide the guns. Because I didn’t vote for the party they told me to vote for. Because I look this way.”

When a seventeen-year-old girl and her mother, both from El Salvador, arrived at the preparation interview in the visitation trailer, the girl asked for water. As she sipped from a paper cup, she said: “I just want you to know that I didn’t want to come here. I had a good life and I was about to graduate from high school, but now I missed my chance of getting my diploma.”

Her gaze was steady, intelligent, and her voice soft but firm.

“Why did you leave your country?”

“Because members of the MS-13 gang threatened to kill me.”

“Did they hurt you?

“No, they never hurt me. They only threatened me.”

“Why did they threaten you?”

After a silence, she explained that she was threatened because one of the gang members wanted to date her and she refused, and because they wanted her to sell drugs for them, and she had also refused. In a way, her problems were not too dissimilar from those of many other seventeen-year-olds—drugs, dates—except in her case the consequences were life-threatening. The MS-13 said they would also kill her mother if she did not comply with their demands, and everyone knows that the MS-13 carry out their threats without thinking twice. They told her mother: “We will throw your daughter’s body in a black plastic bag in the palm tree next to your house.”

The particular details and circumstances vary, but the stories women tell at the Dilley visitation trailer all touch on abuse and violence perpetrated against them by the men in their communities, in their homes, as well as in the public institutions in their countries. As the journalists Óscar Martínez and Juan José Martínez explain in their book, El Niño de Hollywood, women are seen by the MS-13 gang not only as expendable and disposable, but also as a nuisance to a member’s commitment to the pandilla or clica  (gang). Women are “an obstacle to achieving gang-purity” that “stands in the way between the pandillero and his full commitment to the clica.” The only form of participation that women have in the MS-13 is as jainas (girlfriends or wives of gang members). Women who have MS-13 family members—a brother, uncle, or cousin—run the risk of being targeted by opposing gangs because of this affiliation. Gang rape, death threats, and prolonged psychological and physical abuse are everyday occurrences that women recount during their preparation interviews.

Volunteer attorneys and legal assistants have to gather as many details as possible in order to understand how these abuses may qualify the women for asylum.

“How many men were there?”

“Did they have weapons?”

“How close were they to your body?”

“How do you know they are capable of killing you and getting away with it?”

“Have there been other women who were killed because of this?”

“Do you fear they will carry out their threat if you return to your country?”

“Did they also threaten to kill your children?”

“Did they say this to you explicitly?”

“How do the authorities react to these crimes?”

“Did you report this to the police?”

“Why not?”

In an overwhelming majority of cases, when asked this last question, women reveal that they either did not report the crime to the police, due to fear of further consequences, or that they did report it but the police simply did not intervene. One woman explained: “We didn’t go to the police, because we knew they would tell the gang. They work together to keep us under their eye. Even if you know a woman is locked up in her house, and she yells when she gets beaten, you can’t go to the police.”

*

If so many women are being threatened, raped, abused, and sometimes killed by gang members, and if some of these women are gang members’ own relatives, and if authorities in their countries are not doing anything about it, why is it so difficult for them to get asylum? Why does asylum law not protect them?

The answer is complicated, but it comes down to one fact: asylum parameters in the United States have typically prevented gender alone from being a qualifier for a “particular social group.” Gender-based violence, whether domestic or gang related, is not considered linked to state violence. Over the years, attorneys advocating for detainees have found ways to argue why women in certain circumstances—for example, those afraid of persecution who live in a country where the government fails to protect their fundamental human rights—may indeed qualify as belonging to a “particular social group.” Examples of such litigation include the Matter of A-B- and Matter of A-R-C-G-. (These are cases that set a legal precedent for the viability of domestic violence claims by asylum seekers; “A-B-” and “A-R-C-G-” are the initials of the women in these cases.) It is through “matters” like these that legal advocates have recently been able to argue that women who are seen as property, who are abused, and who are unable to leave their marriages qualify as belonging to a “particular social group” and are therefore eligible for asylum.

This legal activism has helped, some. But the progress halted sharply in July 2018, with a memorandum issued by then attorney general Jeff Sessions. The policy explicitly excluded women fleeing domestic violence and gang violence from asylum eligibility, in a direct attack on the thousands of Central American women and children seeking asylum precisely on the grounds of an intersection (or a collision, rather) of these conditions, in countries where the government cannot and will not hold persecutors accountable, or where state actors are complicit in or even direct perpetrators of such violence. Currently, the Matter of A-B- is in a legal limbo. This means that it’s possible to build an asylum case based solely on domestic or gang violence, but the case is not certain to succeed.

It is now not sufficient to argue that a woman cannot return to her country of origin because of domestic violence. The argument must also prove that she faces another, unrelated threat, such as racial discrimination, or threats to her life because of her political affiliation.

At Dilley, there were times when a woman’s story did not meet the asylum requirements but her interview was only hours away. Volunteers prepared these women as best as they could, scanning ruthlessly, in a matter of minutes, through the details of their lives to find something that fit the legal definition of a person deserving of protection. In those minutes, it became clear that the entire system is rigged against them. The asylum-seeking mother is a woman who flees her country with her children because, from the moment she was born, society has punished her for being a woman, for being poor, for being indigenous or mestiza, for being a single mother, for being a victim of sexual violence, for being politically active, for being a business owner. She has been born into a society and under a government that do not seek to protect her well-being; she has been abused constantly; and she runs the daily risk of being killed. Otherwise, she would not have fled. The larger, underlying problem is that societies and governments fail to recognize domestic violence as a symptom of wider and deeper societal and political violence against women. Women living in poverty and violence, in post-conflict contexts marked by an entrenched patriarchal system, are seen as expendable both to the state and to society. There’s a word for these states: femicidal. The only option for women there, if they want to live, is to flee.

*

Most women detained in Dilley did not suspect that on the other side of the border, in the United States, they would find more violence, more threats, and indefinite imprisonment.

During a preparation interview, one woman recounted her experience before arriving at Dilley: “We crossed through the river.  They had clothes for us to change into but they purposefully left us wet and freezing in the hielera [icebox]. Even the children. They all got eye infections, colds, and diarrhea.”

And another: “Everything you see in the news is true, because I am living it. When the volunteers came to the perrera [cages], they had signs that said We love you! Welcome to America! They were all crying. All the mothers and children in the bus started crying too. Not out of joy, but because the volunteers and the protesters seemed very worried, and that scared us.”

Asylum law is currently under siege in the US. And whatever might be the racial, cultural, or ideological motivations for barring asylum seekers from due process, the results of this administration’s policies are clear: an increase in the federal budget assigned to Homeland Security (and specifically to ICE), an increase in border security, an increase in the daily quota of detainees, and, possibly more important, an increase in the construction of new immigration detention spaces. The detainment of undocumented bodies is simply one of the most lucrative industries involved in the business of governing the US.

The circumstances that lead to the displacement of families from their countries, the framing of immigration as a national security issue instead of a human rights problem, the criminalization of asylum seekers and immigrants, and the profit earned from incarcerating them merge into the perfect scenario for mass immigration detention. It has become clear how far the current administration is willing to go—by terrorizing, separating, incarcerating, deporting, tearing apart children and parents, and, ultimately, breaking the psyches of as many asylum-seeking immigrants as possible—to widen and strengthen an already alarmingly robust prison industrial complex.

After twenty-two days in the detention center, one young woman said: “I won’t keep begging because it becomes more and more humiliating.”

Another woman said: “I feel caged here. Wherever you look there is someone watching you. But this is paradise compared to the perrera. There, we had to sleep on colchones [mattresses] smeared with poop and pee and vomit. They didn’t let us brush our teeth.”

Another woman said: “I told them at the perrera I would sign my deportation. I am not a criminal to be treated this way. I have never felt so resentful. I cry when I am asleep.”

Another: “It’s been three months since I’ve been here. If I don’t get a pass out of here in a week, I’m going to ask for my deportation.”

And another: “Some of us get together and tell stories and laugh. When we laugh it is not joy we feel. We are just trying to survive. We daydream of escaping this place through the toilet.”

When asked if she regretted coming to the United States, a young woman answered: “Now I regret it, a thousand times. I think I’d rather die of one gunshot in my own country than let them kill me slowly in this one.”

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