The Trump administration is making it harder for migrants to gain asylum in the U.S. Recently, Attorney General Jeff Sessions ruled that most migrants fleeing domestic or gang violence no longer qualify for protection. But asylum seekers here in the borderlands already faced long odds.
A woman named Angelina came to the U.S. in May, fleeing domestic violence in her native Guatemala. We’re not using her last name, to protect her privacy. Angelina was detained and an asylum officer gave her what’s called a credible fear interview, to determine if she had a credible fear of returning to her home country. Angelina’s lawyer says typically, women in her position pass those interviews. But Angelina didn’t.
I met Angelina’s lawyer, Linda Rivas, in a parking lot near the ICE facility where she’s detained.
“The credible fear denial is very indicative of the changes that Sessions is very focused on making, which are ripping away protections from asylum seekers,” Rivas says.
But here’s the thing. Even if Angelina had passed the interview, Rivas says, “still her going before the judge and winning her asylum case would have been very difficult."
Because immigration judges here in El Paso rarely grant asylum.
Under U.S. law, migrants have a right to apply for asylum. They can seek protection from persecution based on race, religion, nationality, membership in a particular social group, or political opinion.
Nationwide, about 47% of asylum seekers win their cases. They can stay in the U.S., apply for a green card and eventually for citizenship.
But in El Paso immigration courts, which serve West Texas and most of New Mexico, that number is much lower. Just 7%.
Eduardo Beckett is an immigration lawyer in El Paso. “The judges here are not giving out asylum like it’s candy,” he says.
“Lawyers from the East Coast, they sometimes question us,” Beckett says, “‘cause they think maybe we don’t know what we’re doing. Maybe we’re rogue lawyers down here on the border.”
But there are actually a lot of different factors at play. First, it’s important to understand that when it comes to asylum cases, immigration judges have a lot of discretion. It’s not like you automatically gain asylum if you check off certain boxes.
Andrea Guttin is legal director of Houston Immigration Legal Services Collaborative.
“Even if you have an attorney who is able to prove that you qualify for asylum, you meet all the elements of eligibility, it’s still up to that judge at the end of the day,” Guttin says.
So a lot of your fate depends on which judge gets assigned to your case. Immigration judges within the same court can rule very differently. But in El Paso, judges across the board deny more than 90% of petitions.
Eduardo Beckett says that’s partly because El Paso falls under the 5th Circuit Court of Appeals, which generally interprets immigration law conservatively.
“You can have two cases with the same facts and the one in Texas is gonna lose and the one in California is gonna win,” Beckett says.
Your odds of winning asylum also depend on your country of origin. El Paso courts tend to see a lot of migrants from Central America and Mexico. Many are fleeing gang or cartel violence. And those cases are hard to prove.
Nancy Oretskin runs the Southwest Asylum and Migration Institute. “This has been determined time and time again that this is not the government," she says. "That these are criminal organizations and therefore the violence does not qualify as persecution.”
Oretskin says she was able to win a case by proving that her client came from a town in El Salvador where a gang was the de facto government. But she says until there’s more case law around this type of violence, it’s hard to win these cases.
Still, Oretskin says, it’s not like the judges here exclusively deal with Central American and Mexican cases.
Linda Rivas makes the same point. “We do have people from Africa – we have people from Nigeria, Cameroon, Ghana – and we still have these claims also losing,” she says.
There’s also the issue of legal representation. Asylum seekers with attorneys fare significantly better in court. But El Paso doesn’t have a lot of legal services. And it doesn’t have a law school, with a law clinic that could help out with cases.
“We are trying to meet an enormous need,” Rivas says. But there are limited resources.
Immigration judges aren’t allowed to speak with the press, so I reached out to Rob Barnes, a regional spokesperson with the federal immigration court. In an email, he said that each immigration case is unique and complex. He also pointed out that El Paso has two immigration courts – one for detained migrants, and one for non-detained migrants – and that courts that hear cases with detained migrants typically have lower asylum grant rates, because some of those detainees have criminal convictions.
But now fewer migrants will even have their day in court.
I met Angelina, the asylum seeker from Guatemala, at the detention center where she’s been locked up since May. Angelina could try to fight the credible fear denial. But she has another consideration.
When she crossed the border, Angelina was separated from her seven-year-old daughter. All she cares about now is getting her child back, even if that means giving up her case and accepting deportation. As she wipes tears from her eyes with the cuff of her orange jumpsuit, Angelina says the only thing she wants is her daughter, back in her arms.
