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As Access To Asylum Narrows, These Alternatives Are Some Immigrants’ Only Hope

migrants crossing Rio Grande
Mani Albrecht
U.S. Customs and Border Protection
In this June 2019 file photo, a group of 11 migrants is guided by two smugglers crosses the Rio Grande in rafts near an area known as Rincon, in South McAllen, TX.

For most migrants fleeing violence or persecution, getting asylum protections in the U.S. has never been easy. 

Since President Donald Trump took office, his administration has repeatedly tightened the rules, and narrowed who qualifies for asylum. Today, it’s practically impossible.

Immigration attorneys are turning away from the “gold standard” — asylum — and putting more effort into the two major legal alternatives: withholding of removal and the U.N.’s Convention Against Torture.

Asylum definition

Fleeing Honduran Gang Violence

Whether or not someone qualifies for asylum in the U.S. partly depends on timing. Those who crossed the U.S.-Mexico border before July 16 can still pursue asylum here. But people who arrived later, and traveled through another country to get here, are subject to a new rule: they must apply for asylum in a country they passed through first — or they’re ineligible. 

Two women from Honduras just missed the cutoff.

Last August, 24-year-old Dania, swam across the Rio Grande into the U.S. after being raped by police. Her lawyers have asked that her last name not be included in the story, they fear it could affect the outcome of her case.

“Gang members were trying to convince me to work for them,” Dania said in Spanish. “They wanted me to be a prostitute.” 

Credit Courtesy of Dania's father, Melvin
Dania can not apply for asylum in the U.S. because she traveled through Guatemala before arriving at the U.S.-Mexico border. Her pro bono lawyer Fariha Chowdry is counting on Convention Against Torture for relief.

Dania said she refused the gang members and went to the police to report the incident. That’s when police officers came to her house and raped her for not complying with the gang members. 

The gangs and police would kill her if she stayed, she said.

Multiple incidents led a 20-year-old we’re calling Luisa to leave Honduras. Her lawyer asked that we not use her real name, since her case is still pending in immigration court.

Luisa is a lesbian, and said she was persecuted and mistreated because of that. A gang killed her brother, then pressured her to join.

“I ended up just having to flee,” Luisa said in Spanish.

She traveled through Guatemala, then Mexico, arriving at the U.S. border on July 29 — less than two weeks after the transit ban went into effect.

Until recently, both Dania and Luisa would have had cases for asylum in the U.S. — but not under new Trump-administration policy. Both were deemed ineligible for asylum because they both failed to apply in another country on the way here. 

So their attorneys are forced to take another route. 

The Legal Alternatives

Heidi Cerneka is an immigration attorney with Las Americas Immigration Advocacy Center, an El Paso nonprofit. She took on Luisa’s case.

“Our...goal is to make sure we guarantee that people who are in danger if they return to their countries can actually be safe from returning to their countries,” she said.

Outside of asylum, there are two main legal options.

For Dania’s case, her pro bono lawyer Fariha Chowdry is counting on Convention Against Torture for relief.

Chowdry, who works for the Houston-based Alcozer & Associates said “this woman has been terrorized, she’s been raped, which is a protected ground and considered past persecution.”

Protection under the Convention Against Torture comes from a U.N. treaty the U.S. ratified in 1994, designed to protect people from being returned to countries where they would likely face torture.

Withholding of removal serves a similar purpose. This form of relief protects people from being returned to countries where their “life or freedom” would be threatened because of their race, religion, nationality, political opinion or membership in a particular social group.

“If the immigration judge really recognizes that the person would be in danger going back home then the judge can order that person removed, say they don’t qualify for asylum, and then basically put a pause on that and say ‘but I’m not going to remove you and you can stay in the United States,’” Heidi Cerneka said.

She thinks Luisa is a good candidate for this protection. 

Immigration attorney Ruby Powers said both Convention Against Torture and withholding of removal are “the backups” to aslyum. 

“Now we are seeing people are barred from asylum because of whatever reasons and so withholding of removal and Convention Against Torture are becoming more of a focus, not just an afterthought,” Powers said.

Against The Odds

There’s a reason these legal alternatives are usually “the backups.” These forms of relief are harder to win, and come with fewer benefits.

In order to receive protection under the Convention Against Torture, migrants would have to prove there’s more than a 50% chance that they’ll be tortured if they return to their home country. 

For withholding of removal, the standard of proof is just as high — more than 50% — and they have proof they would be persecuted because of a specific, protected identity.

To get asylum, migrants have to prove there’s a 1 in 10 chance of persecution or torture. 

That lowered standard of proof can be the life-changing difference between a grant and a denial. 

“I like to say that we don’t really have a persecution-o-meter, but it’s much harder to prove 50% than 10%,” Cerneka said.

Heidi Cerneka
Credit Mallory Falk / KERA News
Heidi Cerneka is an attorney with Las Americas Immigrant Advocacy Center in El Paso. A number of her clients no longer qualify for asylum under new Trump administration policies.

Both Convention Against Torture and withholding of removal are granted at rates lower than asylum.

In the 2018 fiscal year, 1,334 people were granted relief under Convention Against Torture, 25,802 were denied, according to the Executive Office for Immigration Review.

That same year, 1,746 people were granted withholding of removal, while nearly 26,906 were denied — a decrease of about 38% from fiscal year 2014.

And now, due to a recent Board of Immigration Appeals decision last December called Matter of O-F-A-S-, Convention Against Torture is more difficult to prove. 

Under the decision, it’s even harder to convince a judge that police, for example, tortured in their “official capacity.” Wearing a police uniform, for example, isn’t enough.

Attorney Dree Collopy, based in Washington, D.C., said judges will use this case as a basis to deny other immigrants. 

“It’s decisions like this that basically give judges who are less inclined to provide due process and less inclined to interpret the law favorably for a respondent, it gives them the tools to easily just grasp on that and say ‘no,’” Collopy said. 

'The Aluminum Standard' Of Legal Protection

Besides the tougher odds, there’s another downside to these other legal protections. 

Convention Against Torture and withholding of removal aren’t as robust as asylum. These protections don’t provide a path to citizenship or extend to other family members. People can lose their protected status by simply traveling outside of the U.S. or if the government decides that conditions have changed in their home country.

Heidi Cerneka refers to this as a state of “permanent temporariness.”

“If asylum is the gold standard, I think of withholding of removal as the aluminum standard,” Cerneka said, though she noted that many of her clients who received withholding of removal are mostly just relieved that they’re able to stay in the U.S.

What's A Safe Third Country?

Dania and Luisa technically have another option. They could apply for asylum in one of the countries they traveled through on their way to the U.S. The Department of Homeland Security has said the new asylum rule will lead to “fewer individuals transiting through Mexico on a dangerous journey” and will encourage migrants to apply for asylum closer to home.

But Luisa said pursuing asylum in one of the countries she passed through doesn’t feel like a legitimate option. She said Guatemala is just as dangerous as her home country and she doesn’t have any family there she can rely on. 

“No one who could help me. No one who could open their door to me and say ‘yes, you can stay in my house. You’ll have everything you need,’” Luisa said.

The U.S. Department of State has deemed six of Guatemala’s states as places where, “violent crime, such as armed robbery and murder, is common.” They advise to “reconsider travel” to those areas.

As for Mexico, Luisa said she was kidnapped and sexually assaulted there, just before her 20th birthday. “Mexico was the place where I went through my worst experience,” she said — not a place to seek protection.

Lives At Stake

Both Luisa and Dania said they would likely be killed if they return to Honduras. Their fates in the U.S. are ultimately up to a judge to decide.

While she waits for her case to play out in court, Luisa is living with a friend in Michigan. Her lawyer, Heidi Cerneka, helped get her released from detention.

“Everything has changed,” she said. “I don’t have to be hiding from anyone. I know I can walk freely. No one’s gonna be judging me.”

She hopes this freedom isn’t temporary, and she can ultimately stay in the country.

Dania will wait for her case in an immigration detention center outside Houston. She’s worried she won’t get a psychologist to testify at her hearing. 

Her father, Melvin, is also in Houston, where he works in construction. 

“It would be very painful if we didn’t win this case so she can be here with us here,” he said. 

Melvin hasn’t seen his daughter in 14 years, since he left Honduras. He’s raised her from afar. He’s sent money and called three times a week, hoping she would join him one day. 

Now that’s she so close, he’s worried they’ll never be reunited.

Mallory Falk covers El Paso and the border for KERA as part of The Texas Newsroom, a regional news hub linking stations across the state. She is part of the national Report for America program, which places journalists in local newsrooms to report on under-covered issues.