Nov. 1, 2018
Only about 22 percent of Central Americans requesting asylum in the United States last year won their cases. Vladimir Cortez was one of them.
Cortez, 26, made the journey from El Salvador in 2017 with the migrant caravan organized by the advocacy group Pueblo Sin Fronteras.
As a young gay man, he faced discrimination and threats in El Salvador. He also was caught in between gangs, which made everything worse – he lived in M-18 territory, and worked in a business in MS-13 territory, only blocks away from each other.
One day, he received a threat so terrifying – in which he was given 24 hours to comply with a gang’s order or be killed – that he decided to leave that day.
“When I left El Salvador, I was fleeing,” he said. He didn’t even let his grandmother, who he lived with, know. “The circumstances in our country make us leave. I think the United States is the only place among these countries where people follow the law.”
He left for the capital that day to begin his journey north. He’d never left El Salvador before.
Gang threats and violence are experiences common among Central American asylum-seekers. The Northern Triangle region, which includes El Salvador, Guatemala and Honduras, is plagued by gang violence and impunity for those who commit crimes.
Very often, people flee this region because their lives have been threatened. Very often, immigration judges agree that an asylum-seeker’s life has been threatened, and that they will likely be killed if they return. And very often, judges deny those asylum-seeker’s claims anyway.
“Asylum laws are misunderstood, in that being afraid of dying or even having the likelihood of death if you return is not in itself the basis of asylum,” said Jonathan Montag, president of the San Diego chapter of the American Immigration Lawyers Association.
For Cortez, that meant proving that he was gay and that he was being persecuted for his sexual orientation – a process that required him to put some of the most intimate, painful moments of his personal life on the record during an immigration hearing.
As a new caravan of Central American migrants – some of whom will request asylum in the United States – makes its way north, Cortez’s case demonstrates how difficult attaining asylum can be for people who face violence and even certain death if they return home. Many of those traveling are starving or fearful of returning to their country, but that’s simply not enough under U.S. law.
“You have to have the fear of death or imminence of death for the right reasons,” Montag said.
Under U.S. asylum law, a person applying for asylum must show that race, religion, nationality, membership in a particular social group or political opinion is at least one central reason for his or her persecution. Finding the place where persecution and persecution for the right reasons intersect is called the “nexus.”
Many of the Central American cases are argued under the “membership in a particular social group” area, the most expansive of the categories.
Courts have found sexual orientation to be a recognized social group for the basis of asylum. Because Cortez and his attorney were able to prove that Cortez was gay and that his persecution was tied to his sexual orientation, he was granted asylum.
Cortez had made his own way to Tapachula, Mexico, from El Salvador. He didn’t have money to make the journey farther north at the time. But when he was staying in a shelter, he heard murmurs of a caravan – a group of people making the journey north together – and that their destination was Tijuana.
“A group of us in the shelter discussed the options,” Cortez said. “Should we go or shouldn’t we? We were fearful of the journey, of immigration officials and of what would happen to us. But we summoned the courage.”
During the first weeks in the caravan, they just walked. When they arrived in Oaxaca, more than 400 miles north of Tapachula, they were so visibly tired and beaten down that a local priest told the group continuing by foot wasn’t feasible.
But the group didn’t have the money to pay for buses or other transportation.
The priest suggested they try to stop a freight train to ride for part of the journey, so they stood in the middle of the railroad tracks to force a train to stop. It took a while, including back-and-forths with the rail company, government officials and the conductor. But eventually they managed to secure transportation to Mexicali. From Mexicali, they loaded onto trucks to reach Tijuana, like “sardines,” Cortez recalled.
Once in Tijuana, the plan was to turn themselves in at the port of entry days later. But Cortez said he became anxious, thinking about what would happen when he turned himself in, and he decided to enter the country in a different way.
“For the same fear of being locked up and for the uncertainties about whether they would deport us, myself and another 14 people decided to cross ourselves with the help of another man in Tijuana,” Cortez said. “He made us a partial map of where we could pass in Tecate.”
When they crossed, they were caught by border agents. They couldn’t contact anyone else in the caravan or its organizers since their phones were confiscated. But they were reunited with other caravan members once they were sent to the Otay Mesa Detention Center. Cortez was able to get the phone number of one of the caravan organizers, who told him there was still a way to stop his deportation.
The organizer helped him find an attorney to fight his case.
Cortez was transferred to the Adelanto Immigration and Customs Enforcement Processing Center, northeast of Los Angeles.
He was one of several detainees who went on a hunger strike last year to protest poor conditions at the facility. Their treatment during the hunger strike by guards in the facility is at the center of a lawsuit, which says Cortez was pepper-sprayed and denied medical treatment for the resulting burns.
After he’d spent months in detention, Cortez’s asylum hearing arrived. He and his attorney had to convince a judge that he would not only face persecution and possibly death if he returned to El Salvador, but that he would face persecution for the right reasons under U.S. asylum law. That meant proving he was indeed gay and that his persecution in El Salvador was because he was a gay man.
Cortez had a two-day hearing, said his immigration attorney from the time, Joe McKeever.
On the first day of the hearing, Cortez testified, “describing in sincere terms, with many tears, what it was like to be gay in El Salvador,” McKeever said. Cortez was thrown out of his house when he was 9, and lived on the street for years before he was able to live with other relatives.
“It was so moving,” McKeever said. “He had a relationship with a young man in high school and his grandmother, with whom he was living with at that time, prohibited him from having anything to do with that boy. That was a really moving part of his testimony. He couldn’t stop crying. There’s no way you could fake that.”
At one point, he said, the judge, very awkwardly, asked Cortez if he had oral sex with the young man from that relationship. Cortez said yes.
“The judge stumbled all over himself and tried to ask which role he played,” McKeever said. Cortez answered.
That exchange – as intrusive and uncomfortable as it was – showed the judge believed him, McKeever said.
The next step was to tie Cortez’s persecution to his identity as a gay man. McKeever said in Cortez’s case, that was done through Cortez’s testimony and that of an expert witness.
Cortez recounted specific things gang members had said to him about why they approached him instead of others, McKeever said. They said things like, “We use gays to transport our drugs, because they are weak and useless and they never report us,” he said.
Cortez, however, did report the threats to the police, which did him no good in El Salvador, but helped him in U.S. immigration court.
McKeever also called an expert witness who was from El Salvador and an expert on LGBTQ issues in the country. The expert offered data showing that a high percentage of LGBTQ deportees to El Salvador did not survive.
“El Salvador has a very macho, old-line Catholic culture, where homosexuality is simply not tolerated,” McKeever said.
Cortez won his case because he was able to show this nexus: that he was being persecuted, that his life was at risk and that it was because of his sexual orientation. He is now living in Fillmore, California, working at a restaurant and helping Pueblo Sin Fronteras in Los Angeles.
“What asylum isn’t is ‘You are from a bad place and you want to come here because you think it is a good place,’” said Tammy Lin, an immigration attorney in San Diego. “Basically when people come to me and they tell me what is happening in their country and that they were robbed or beaten, the one thing I always ask is, ‘Why do you think it happened?’ Because it has to fit into one of those five grounds. It can’t just be because there is a lot of crime there.”
Many Central American cases are argued under the “membership in a particular social group” category. Sometimes attorneys will try to argue that someone was targeted because they were a land owner or business owner, but Montag, the president of the immigration lawyers’ association, said that judges don’t tend to buy that argument.
Lin said that some countries, like Sweden, have asylum laws that specifically outline gender and sexual orientation, but under U.S. asylum law, to argue persecution based on your gender or sexual orientation, you need to argue under the “member in a particular social group” category.
Case law has established more specific categories within the social group umbrella, like women who’ve suffered genital mutilation or people who are members of a particular family or clan that is being persecuted.
But the Trump administration has been whittling down some of those decisions.
The Board of Immigration Appeals, an administrative appellate body for immigration courts, found in 2014 that a woman abused by her husband qualified for asylum because she was a member of a group of “married women in Guatemala who are unable to leave their relationship.” Immigration attorneys had since been using that decision to argue that Central American women who were fleeing domestic violence should be granted asylum. But in June, Attorney General Jeff Sessions invoked a rarely used power to refer the case to himself and re-interpret that decision, making it more difficult for domestic violence victims from Central America to win asylum.
In his decision, Sessions also more broadly challenged the idea that victims of domestic or gang violence should qualify for asylum.
“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,” he wrote.
There are other complications when it comes to arguing persecution, where extortion and forced labor can disqualify someone from attaining asylum.
For one, McKeever said that sometimes when individuals make extortion payments to criminal organizations, judges will interpret those as financial support for those groups, regardless of whether they were made because of threats against the individual’s life or the lives of their family members.
In a similar vein, a June decision by the Board of Immigration Appeals found that a woman who was forced to work for guerrillas in El Salvador provided “material support” to terrorists and was thus ineligible for asylum.
“This general idea that proving legitimate fear of death or severe persecution is what asylum is, that’s a gross misunderstanding,” Montag said. “You need that nexus or they don’t care if you’re going to die.”
Montag pointed to an asylum case he recently argued before the 9th U.S. Circuit Court of Appeals on behalf a Guatemalan man whose life had been threatened in his country.
“None of the judges, at any level, had any doubt he would be killed if he returned,” Montag said. “But he wouldn’t be killed for the right reasons.”
This article originally appeared in the Voice of San Diego.