All It Takes Is Torture

CHAPARRAL, New Mexico — The freckled 22-year-old never wanted to come to the United States. Her mother had made a good life in their village in El Salvador, and though they were poor, they were happy.

“There were just a few houses in the town, really. It was very peaceful. Very quiet,” the young woman, who asked not to be identified for her protection, recalled, speaking through an interpreter.

But in 2014, the US-based gang Mara 18 came to town with demands for protection payments and dark threats against anyone who stood up to them. Within months, Mara 18 had taken control of the town, and the young woman found herself the object of the gang leader’s unwanted attention.

“I promise you, I would have never come here. I miss [my family] a lot. But here I am. I couldn’t stay,” she said, rubbing away the tears running down her face.

So she fled north, seeking asylum in the US. But once she arrived, instead of a safe haven she found a skeptical immigration system that rejected her request and deported her back to El Salvador, in part because she couldn’t prove she faced persecution back home — something that would only change after she’d been tortured and raped.

Within months, she had been brutally beaten and raped by the gang leader, who declared her his property. The attack meant she could finally return to the US and prove her asylum case.

Almost 10 months after returning, she is free, but only after struggling against immigration laws that weren’t written with victims like her — a target of an international criminal gang — in mind, and that make it nearly impossible for someone who has been deported to ever gain asylum. It took three tries to gain asylum, three times paying smugglers to take her on the dangerous journey across the border; finally in August, a judge blocked her deportation under an international treaty typically used to give criminal snitches sanctuary for their cooperation. But even that didn’t end things: The Trump administration made her wait in jail nearly a month before agreeing to not appeal her case.

Nancy Oretskin, the Salvadoran woman’s attorney and the director of the Southwest Asylum & Migration Institute, says changes to asylum law are needed to eliminate a perverse incentive for persecuted people to wait until they are tortured or raped before coming to the United States. “We can’t give them legal protection until they’re raped,” Oretskin said. “And even then, we deport many of them after they’ve been raped, and they’re killed. How does that happen in a civilized society?”

Change is unlikely under the current administration. A few months after President Trump was sworn in, Attorney General Jeff Sessions issued new guidance to Department of Justice attorneys that emphasized the need to use prosecutions to “further reduce illegality” and that instructed them to pursue more criminal charges against undocumented immigrants.

In fact, if the Trump administration has its way, it could become ever harder for asylum-seekers. On Sunday the White House proposed a set of changes to immigration law, including new limits on who can qualify for an asylum hearing and new rules to curb the ability of immigration judges to block deportations of asylum-seekers.

Before the gangsters came, life in the young woman’s village in rural Chalatenango was good. Her mother ran a small restaurant and made enough money to send her and her sister to school. Like most of their neighbors, they lived in a modest, one-room house, and each morning the girls would go to a public well to fetch water and do the family’s laundry.

“It was nice,” she said. “We could just walk around the street anytime of day. At night, children would play in the street. We weren’t really afraid of anything.”

When the young men began showing up — wearing baggy jeans and T-shirts, US baseball caps perched on the heads, and tattoos covering their arms — they definitely stuck out, but nobody thought much about it. The villagers soon learned that the young men were members of 18 Revolucionarios, which is part of the larger Los Angeles–based Mara 18 gang.

Like its main rival MS-13, Mara 18 has flourished in Central America over the last two decades thanks in part to a growing number of members being deported from the United States. But while MS-13 employs a strict, centralized hierarchy, Mara 18 is made up of what the gang calls “cliques,” which operate with autonomy. According to a former justice department attorney who lives in El Salvador and who has studied the gangs, this loose affiliation has enabled Mara 18 to spread into smaller, more remote villages where gang leaders set up what amount to modern-day fiefdoms.

Soon, the young woman said, more young men were moving into town. That’s when things changed. The gang’s leader began imposing rules — banning certain clothing colors associated with rival gangs, barring outsiders from entering the town even to play soccer matches, and establishing a curfew. “Once they started living there, you couldn’t have a group of young people hanging out in the street,” she said in a visitor room in New Mexico’s Otero County Prison. “It took away the tranquility of the town.”

From there, events followed a familiar pattern: The gang began demanding money from local businesses, like her mother’s restaurant. Those who paid were squeezed harder for more money; those who did not were threatened and robbed.

Her mother initially refused to pay. When the harassment intensified, she closed her business, and she and her daughters began cleaning houses in a nearby city to make do. A few days later, their home was ransacked.

The young woman filed a report with the police, who said they’d send an officer that evening to investigate.

“We waited all afternoon and evening, and most of the next day. But no one ever came,” she said.

Neighbors, however, said she was in danger. The gangsters had been seen at her house, and they knew she had gone to the police. And that terrified her. “There was another woman who made a complaint. Her husband was disappeared,” she said.

She and her mother quickly decided that it was no longer safe for her in town and that she should go to the United States, where several aunts were living.

In June 2014, less than six months after the first Mara 18 members arrived in town, Customs and Border Patrol officers picked her up just outside of McAllen, Texas. Finally, she thought, she was safe.

Each year, tens of thousands of people from around the globe cross the US–Mexico border looking for refuge from war, political persecution, and violence.

In theory, federal asylum laws are designed to provide that safe haven, but most people find a legal system hopelessly stacked against them. When Congress passed the Immigration and Nationality Act of 1952 and subsequent amendments to it, the problem of international gang violence didn’t exist, and most countries in the Western Hemisphere had at least stable — if repressive — governments. In 1980, Congress passed the Refugee Act, which codified decades of asylum practices in the United States. But neither the law nor the administrative practices were designed to take into account the sorts of violence Central Americans would come to deal with. In 1996, the last time the law was revised, Congress didn’t include new language on gang issues, though it did make it much more difficult to get asylum — including raising the bar on allowing deportees to apply for asylum.

As a result, the law remains heavily weighted to asylum claims based on state-sponsored persecution. But in the modern era, that makes less sense “because the gangs by themselves don’t represent the state,” Oretskin points out.

A Department of Homeland Security spokesperson did not return a request for comment.

Once the young Salvadoran woman was in custody, an immigration official conducted a credible fear assessment: an interview to determine if she was eligible for a formal asylum hearing.

She explained that she had fled north because gangs had taken control of her village, beating and killing people who did not pay for protection. And that the local police couldn’t — or wouldn’t — help. That she wanted asylum from the dangers she faced at home.

Because detainees don’t have a right to representation, there was no lawyer to piece together evidence, meaning officials had only her story to go by. With nothing to back up her claim, she was denied asylum and deported.

That would prove pivotal. Federal law makes it nearly impossible for someone who’s been deported to ever get asylum. Although the United Nations Convention Against Torture can provide relief, its legal bar is so high that it’s rarely granted.

At first, everything seemed ok back in El Salvador. The gang didn’t seem interested in reprisals, and she was reunited with her family. Through the fall of 2014, she worked cleaning houses and occasionally selling pupusas her mother made on the street.

On the morning of Jan. 25, 2015, she headed to the well near the center of town to do laundry. Busy washing along with several other villagers, she didn’t see the young men coming. It was only after everyone else began to run that she saw the eight members of Mara 18. By then, it was too late.

The men surrounded her, taunting her and calling her names. The terrified woman screamed for help, but no one came. When she tried to run, the leader grabbed her, stripped her naked, and threw her to the ground.

“I wanted to disappear. I begged him, I prayed to him to stop. The others laughed at me, they treated me like an animal,” she would later write of the rape in an affidavit submitted to US immigration court. “When he finished doing these filthy things to me, he told me that now I belonged to him, that for a long time he had been waiting for this moment to make me his woman.”

After she got dressed, the gang leader issued one final warning: “If he found out I had said anything to the police, others in the gang would do the same or worse to my younger sister,” she wrote in the affidavit.

When her mother and sister found her at home later, sobbing and unable to speak, they packed what few possessions they could carry, and all three left the only home she’d ever known.

They spent the next few months in hiding at her grandmother’s house two hours from her village. By March, the family had saved enough money to pay a smuggler to take her to the United States. Once again she headed north.

On the evening of April 23, 2015, the group of immigrants she was traveling with crossed the border near Laredo, Texas. Within minutes, Border Patrol agents picked them up.

Unlike a year earlier, she said, the officers didn’t give her a credible fear interview. In fact, she said, nobody asked why she’d crossed the border. Instead, she said, agents told her “because I’d been caught before, they wouldn’t let me see a judge” without signing a series of documents.

“I thought I was signing papers to see a judge. But it turned out I was signing my deportation papers,” she said matter-of-factly. For those coming to the US illegally, not being given even the semblance of due process is a common story.

A few weeks later, she was back in El Salvador in a new town with her mother and sister.

Occasionally they would hear about the murder of a neighbor from their old village, or about a friend who’d mysteriously disappeared after crossing paths with Mara 18. But at least for a time, it felt far away.

Then, late in the afternoon of Oct. 15, 2016, a young man walked into the store where she worked. He introduced himself and said he’d come with a message from his boss — the Mara 18 gang leader who’d raped her.

“He said his boss didn’t want me working at the store because he wanted me to be with him and join the gang,” she said. “Because I belonged to him.” The gangster also had a warning. “He said if I didn’t leave my job, they would kill me, that they actually like to kill young girls,” she said, sobbing. “First they would pleasure themselves with me … and then cut me into pieces and deliver me to my mother.”

Within hours, she again went into hiding. On Dec. 4, she crossed the US border for a third time and was detained by the Border Patrol.

Because she this was her third time crossing the border illegally, she was charged with criminal reentry, a felony that could carry a 10-year prison sentence. While being held in the Otero County jail, however, she had her first stroke of luck when the court appointed Rachel Nathanson as her public defender. According to Nathanson, who began working as a public defender in 2016 but who’s already handled over 100 immigration cases, the woman’s situation “isn’t necessarily uncommon.”

In January, Nathanson met with the federal attorney prosecuting the case and detailed the abuse and threats the woman had endured in El Salvador. She also contacted Oretskin, who takes pro bono asylum cases. The prosecutor agreed to have the young woman plead guilty to a misdemeanor illegal entry charge in exchange for a sentence of time served. That allowed Oretskin to begin the asylum claim process.

On Feb. 12, the young woman again made her credible fear claim to DHS. Four days later it was again denied, setting off a seven-month legal fight that some immigration attorneys say is emblematic of an asylum system designed to be so difficult it deters people from applying.

“The law is set up to get people to fail … most people can’t show a note from their torturer,” said David Leopold, an immigration attorney and former president and general counsel of the American Immigration Lawyers Association.

That’s especially true for people who hastily flee threats of violence with virtually nothing.

“That’s why it’s important for people to be well represented when they make an asylum claim,” Leopold said. “Because this is really your only shot.”

Even with a lawyer, the immigration system is nearly impossible to navigate. Over the next six months, Oretskin said one hearing was canceled without notice, another ended prematurely, and the case was reassigned to three different judges.

“Every time you go in, it’s like a new day, because it’s a new judge and new [DHS] attorney,” Oretskin said with exasperation.

Finally, on Aug. 28, she and her client appeared before Judge Philip Law for a final hearing. With formal asylum off the table because of her previous deportations, Oretskin’s case hung on proving that the UN Convention Against Torture essentially prohibited the government from returning the woman to El Salvador.

She had plenty of evidence to draw from. According to the United Nations High Commissioner for Refugees, El Salvador is one of the world’s most dangerous countries. In March 2016 — a year after her second attempt to flee — UNHCR listed it as having the highest homicide rate in the world and cited Mara 18 as one of the two largest criminal organizations in the country.

The UNHCR report also made clear the government was incapable of protecting citizens — and was as much a problem as the gangs. “In 2014 alone, 900 police officers were reported to have been sanctioned for misconduct, with this figure likely representing only a fraction of those who committed abuses,” according to the report.

Although there aren’t statistics on how many deported Central Americans end up being killed by gangs, anecdotal evidence suggests it’s not uncommon. One study of newspaper reports in 2014 identified at least 83 El Salvadoran deportees who were murdered shortly after arriving back in their home country, and attorneys say those numbers are almost certainly very low.

Oretskin flew in Mirna Perla, a former El Salvadoran Supreme Court justice, who testified to the dangerous conditions in the country and the likelihood that the woman would face rape or even death if deported.

It took just a few hours for the judge to rule that the young woman qualified for protection under the Convention Against Torture.

Leopold called it a “very rare” happy ending but, alluding to the woman’s two earlier deportations, added: “It is unconscionable that this young woman was deported to the very people who raped her.”

“This country of immigrants, this country that’s so welcoming on paper, in many ways treats asylum-seekers like criminals. We treat it like it’s an enforcement issue and not a humanitarian one,” Leopold said.

Today, the young woman lives with one of her aunts in the US. Her mother and sister, who has since had a baby, remain in El Salvador. ●