AUSTIN, Texas ― Ana was working at a restaurant in Guatemala four years ago, when a teenager with baggy pants approached. He ordered a tostada, then remained standing at the entrance even as another waitress invited him several times to take a seat. Instead, he took a few steps toward Ana, pulled out a gun and pointed it at her face.
She froze, looking him in the eyes without speaking. His hand trembled. When a co-worker saw the gun and screamed, the boy pulled the trigger. The bullet grazed Ana’s head and she fell to the floor, hoping he’d think she was dead and leave her alone.
She reported the attack to the police, but they didn’t arrest anyone. Authorities suspected he was a gang member and might have confused her with someone else or attempted to kill her as part of an initiation rite. To protect herself, she moved to a town nearby.
But a few months ago, she ran into him again. Now a fully grown man, he was bulkier but still wore baggy pants. She could tell he recognized her from the way he stared. “All that fear I had became reality again,” she said.
When she saw him a few weeks later, he raised his hand, extending his fingers toward her as if they were the barrel of a gun. Fearing that he wanted to kill her for reporting the shooting, she fled the country with her 3-year-old daughter, traveling overland through Mexico and into the United States.
Ana, whom we are identifying with a pseudonym because she fears for her life if she’s deported, told all this to a U.S. asylum officer last month. The officer didn’t disbelieve her story, according to a record of the interview. But after they spoke, he checked the box on her application that read “credible fear NOT established.” Instead of sending her claim for asylum onto an immigration court, the interview fast-tracked her for deportation back to Guatemala.
Immigration and Customs Enforcement plans to deport Ana on Tuesday, returning her to a country where she thinks she’ll be killed.
“I’m not lying,” Ana told The Huffington Post by phone from the Karnes County Residential Center in Texas, where the 24-year-old has been detained for the last month. “I thought I was safe. Why don’t they believe me?”
Asylum is the best known of several ways that unauthorized immigrants can obtain legal permission to remain in the United States when they fear for their safety at home. The bar for establishing “credible fear” ― the first step in the asylum process ― had been low for most of the Obama administration, requiring officers to err on the side of leniency so that people don’t get deported to a place where they’ll be killed, tortured or abused.
But last month, President Donald Trump’s administration ordered asylum officers to take a more skeptical approach in these interviews, making it more likely that the U.S. will deport people whose cases previously would have advanced to an immigration court. Ana had her interview on Feb. 27, the day the new rules went into effect.
I’m not lying. I thought I was safe. Why don’t they believe me? Ana, who has been denied asylum in the U.S.
Claims for asylum (and other forms of relief from deportation) can often take years to settle, so most who pass the credible-fear interview are released from detention while their cases wind through the courts. But a negative ruling on credible fear prevents immigration judges from setting bond hearings for those detained and makes deportation quicker and easier.
It’s impossible to say whether any specific person would have passed that first step in the asylum process under past presidents. Asylum officers have wide latitude to make their determinations. And even once a person clears that first step, judges’ rulings on who eventually is granted asylum status vary widely between jurisdictions and individual cases.
But several experts consulted by HuffPost, as well as the attorneys who represent Ana, thought her case would have easily passed muster under the previous administration’s guidelines. Manoj Govindaiah, the director for family detention services at the legal group RAICES, said Ana’s case shows that Trump’s new rules are already pushing asylum seekers into deportation more swiftly.
“The new guidance raises the bar as to what is considered a credible fear of return,” Govindaiah said. “We believe that if her interview had been only a few days earlier, she would not be facing deportation today.”
Denise Gilman, a lawyer who is trying to help Ana avoid deportation, agreed that Trump’s new directives undermined her client’s claim.
“It does appear that she was denied based on the new guidelines,” Gilman said. “It was a perfectly viable case.”
Ana is part of a wave of tens of thousands of Central American mothers who have entered the United States with their children since 2014. The Obama administration hastily established two new family detention centers ― including the Karnes facility, where she has been detained ― in an effort to dissuade the women from coming.
The mothers and their children generally apply for asylum or other humanitarian exemptions from deportation. The vast majority of those detained at the two family detention centers in Texas were making it over the first hurdle. The credible-fear approval rate hovered around 85 to 95 percent over the last two years, according to data from U.S. Citizenship and Immigration Services. Trump has accused immigrants of abusing this system to avoid deportation.
Ana appealed the decision on her credible-fear claim after getting legal advice from lawyers with RAICES. When she went before a judge, she also raised the fact that she had been sexually abused by her father, who she says abused her mother as well. But the judge denied her appeal. Gilman said the judge held that the abuse claim wasn’t credible because Ana hadn’t raised it in her initial interview.
The news sank Ana into desperation. Guards at the facility put her on medical observation for the day to keep her from taking her own life. She composed herself to avoid giving the impression that she is not competent to care for her child. “If it wasn’t for my daughter, I think it would have been better to die at that moment so I wouldn’t have to live with this anguish,” she said.
It’s unclear whether others like Ana, who might have once passed their credible-fear interviews, are now being rejected. Citizenship and Immigration Services could not immediately provide updated statistics, which are compiled by quarter.
Asylum officers are going to read between the lines and distill that the guidance is 'deny more cases.' Stephen Legomsky, former head counsel for Citizenship and Immigration Services
Blaine Bookey, co-legal director of the Center for Gender and Refugee Studies at the University of California, Hastings College of the Law, said Ana likely had several avenues to apply for asylum. Failing to raise the sexual abuse claim during a credible-fear interview is common, she noted, because women often aren’t comfortable disclosing such abuse and many times don’t know that it could help their cases ― unless they have lawyers to tell them.
“This case really demonstrates the complete lack of understanding ― whether it’s willful or through ignorance ― of the impact of trauma on the survivors at these interviews,” Bookey said. “A woman experiencing sexual abuse wouldn’t be immediately forthcoming about it in the context of a credible-fear interview.”
While it’s too early to tell if cases like Ana’s will become more common, Stephen Legomsky, who served as head counsel for Citizenship and Immigration Services from 2011 to 2013, said the message of the Trump administration’s revised guidance is unmistakable: Reject more claims.
“Asylum officers are going to read between the lines and distill that the guidance is ‘deny more cases,’” said Legomsky.
As for Ana, he said, “It does seem to me that based on the assertion of domestic violence in combination with the gun threat, that she has at least a ‘significant possibility’ of succeeding in an asylum claim, which is what the statute says.”
Ana has struggled to sleep since the judge rejected her first appeal. She said her daughter sometimes wakes up crying in the middle of the night.
On Monday afternoon, Immigration and Customs Enforcement rejected her lawyer’s second request to reconsider the deportation. She could be on a plane back to Guatemala as early as midnight.
“I don’t want to go back,” Ana said. “This man wants to kill me.”
CORRECTION: A previous version of this story misstated Blaine Bookey’s role with the Center for Gender and Refugee Studies.