in 2017. Just 22 percent of immigrants seeking asylum in the U.S. were granted it. Vladimir Cortez was one of them. His life was repeatedly threatened in El Salvador but he almost fell between the cracks of U.S. asylum law to receive asylum. You must be persecuted for the right reasons. KPBS Jade Heineman spoke with voice of San Diego reporter Maya Srikrishnan who followed Vladimir's story tell us the situation Vladimir Cortez found himself in at his home in El Salvador and why he left so quickly. So Vladimir Cortez was a young gay man in El Salvador. And there's a lot of discrimination and persecution of anyone who is kind of in the LGBT community in that particular country. And he also was in a situation where he lived in one neighborhood where that belonged to one gang. And then he worked in a neighborhood that was kind of the territory of another gang. And so he found himself kind of solved and in the middle of some of their conflicts. In addition to being particularly targeted because he was a young gay man now. Vladimir was targeted he was threatened with death. Is that enough for him to get asylum in the U.S. being threatened with death is not enough to be able to get asylum in the U.S. in Vladimir's case because the death threats were related to his sexual orientation he was able to get asylum. Now how many Central Americans ask for and receive asylum each year and what happens to those who don't. So a lot of Central American requests for asylum every year and the number has been growing only about 22 percent of them in 2017 actually won their asylum case. What happened to the ones that don't get it it's kind of that's a little less clear you know many are deported. Some of the decisions are made when they have not come to their hearings. So what happens to them they might later get picked up by ICE or they may continue staying in the U.S. or they may go to another country you know maybe Mexico to try and find other options. And tell us about Vladimir's journey it really seems like something of a miracle that he even made it to the border. Yeah so he I mean he left he got a death threat and he left that day and he went all the way to Tapachula which is in southern Mexico by himself. And then when he was at a migrant shelter there he kind of heard murmurs of a migrant caravan. So basically a group of migrants who had organized to make the journey through Mexico to the U.S. Mexico border together because the journey is really dangerous. And he and a few other people in the shelter decided to join with the caravan. They ended up walking quite a distance until they got to the state of Hoca and then they ended up stopping a freight train. They you know being a big group were able to kind of stand in front of it. And between dealing with politicians in their of disobedience and the rail company they were able to kind of ride the train all the way to Mexicali. And then some people stayed there. The flooding near Cortez ended up going to Tijuana. But rather than turn himself in at the port of entry to seek asylum he got kind of anxious about being put in detention in the U.S. And so he ended up crossing between the ports of entry. And then once he was in a detention center he connected with organizers from the caravan who connected him with an attorney and he was eventually able to fight his deportation. And get an asylum claim. Right. And he was caught and put into detention in Adelanto. Yeah he was first in the Otay Mesa detention center and then he was transferred to Adelanto. OK. And that wasn't a very good experience for him at all. Tell us what happened there. So he and several other detainees actually ended up going on a hunger strike to protest the conditions in Orlando. The food the medical care the treatment from the guards. And he's currently at the center of a lawsuit because after he and several of the other detainees went on a hunger strike apparently they received even worse treatment from the guards than the other employees at the center. And how did he convince the immigration judge that his asylum request should be granted. So he had to lay out two things. One he had to lay out that he was fleeing persecution and that he feared returning to his country. And then he had to lay out that he feared going back to his country for the right reasons. So under U.S. asylum law. You know a person who's applying for asylum has to show that their persecution is based off of race religion nationality political opinion or something called membership in a particular social group. And so he argued that because of his sexual orientation he was being targeted as a member of a particular social group which would include gateman. And you wrote that Vladimir reported that threats against him to the police which helped him in his asylum hearing. So what how did that work. And did the courts communicate with the police back in El Salvador. I am not sure if the court communicated with the police. He had some he had to show some sort of record of reporting it to the police during his hearing but it was likely something that was documented from El Salvador rather than someone calling during the hearing. He I mean part of the thing in showing asylum is that you're not safe in your country. And he was able to show that you know the government knew you know local police knew what was happening to him that he was being targeted and they didn't do anything you know for people who are fighting for people like Vladimir what are they advocating for in terms of how our system works. Well I think one of the things that I hear a lot is that there's a general misunderstanding of U.S. asylum law. And it seems that there is an idea that it's much broader than it actually is and it's much easier to get than it actually is. And so I think many of the people who advocate for Central American migrants at this point just want there to be compliance with asylum law. And there's a lot of still legal back and forth going through and how gang violence and domestic violence fit in under U.S. asylum law. Which are the main reasons why people often are seeking asylum in Central America. Where is Vladimir now how is he doing. So he is living in California a little outside of Los Angeles. He's doing well. I think it's coming up year after he won his asylum case so he'll be able to apply for residency soon. He is working at a restaurant and working with police the front desk which is the migrant advocacy group that organized the caravan in which he came. So he's working with some of the organizers in Los Angeles. All right Maya Srikrishnan thank you so much for joining us. Thank you for having me.
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.
El Salvador had a homicide rate of 60 per every 100,000 people in 2017. The year before, it was higher at 81. To compare, the United States had a homicide rate of 5.3 per 100,000 people in 2017.
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.”
Written By Maya Srikrishnan
Maya Srikrishnan is a reporter for Voice of San Diego. She writes about the U.S.-Mexico border and immigration issues in San Diego County. She can be reached at maya.srikrishnan@voiceofsandiego.org.
