“It’s unjust what they are doing with us”: Asylum-seeking Women Living Under the Guise of a Border Protection Policy and the (Un)lawfulness of a US Asylum Process (Disrupted)

by Carla Salazar Gonzalez

“The repulsion that [US Customs and Border Protection (CBP) officers] have made us endure, the things they have said, they have seen us like, […], worse than recycled trash.” – Roxana

I met Roxana, a 41-year-old asylum seeker from El Salvador and mother of four, in Tijuana, Baja California, Mexico, in the summer of 2019. Back home, Roxana had been a hairdresser with no desire to leave her country where she felt “One is better because one has her family and roots there.” But, in 2016, after the maras (gangs that originated in the US and spread to Central American countries) threatened and harassed her multiple times at her home, she knew she needed to leave.

At first, Roxana tried to move to different parts of El Salvador with family friends, even going into hiding in different parts of the country. But she continued to be at risk, in part because her children’s father (her ex-husband) was a police officer who was being closely monitored and threatened by the maras. After several months, and seeking safety, she fled with her then six-year-old daughter, Noelia, to the US-Mexico border in 2018. She left one son, a 20-year-old, who attended college in El Salvador. Her eldest daughter and 10-year-old son had already arrived in the US before 2018, seeking asylum from similar threats from the maras. What she—and too many other asylum seekers—did not know was that she would suffer other forms of insecurity and violence upon leaving her country for the US.

With pain and tears, Roxana confessed her daughter had yet to complete a year of schooling and that this has been devastating for her. She had tried her best to educate her daughter despite the circumstances, acknowledging that, “If my daughter knows her letters is because I have taught them to her…[Noelia] dreams of going to school.” Like many women seeking asylum in the US, Roxana wants the basic human right for herself and her children to exist freely without being persecuted, raped, or kidnapped.

In 2019, Roxana finally crossed the border into the US with the intention of turning herself in to the US border patrol and let them know she was afraid of returning to her country. Roxana and her daughter were immediately detained for eight days in the hielera (icebox), an overcrowded, freezing cold holding cell in the underground facilities of CBP near the San Ysidro outlets. They shared the cell with other families, had no privacy to use the toilet and received mylar, aluminum foil blankets, to cover themselves from the cold. During their detention, CBP officers asked Roxana, in front of her daughter, why people in her country did not unite to fight the maras adding that, “[Asylum seekers] are making our job harder and just by talking you dirty our country.” Beyond making them feel unwelcomed, he equated their presence and speech as bringing filth into the US. In another instance, when her daughter asked for cookies because she was hungry, the officer said, “[You] are in jail; not a hotel.” Such experiences with CBP, common among asylum seekers, compound their trauma and sense of uncertainty.

Despite seeking asylum in the US, Roxana and her daughter were sent back to Mexico as part of the Migrant Protection Protocols (MPP), also known as the “Remain in Mexico” program. MPP is a US Department of Homeland Security program that went into effect in January 2019 at seven ports of entry, including Tijuana-San Ysidro where Roxana was apprehended. President Joe Biden suspended MPP in January 2021 and ordered it terminated in June 2021, only to restart the policy in December 2021 following a court order decision.

As the experiences of asylum seekers under MPP clearly expose, to seek asylum in the US is to enter a dehumanizing process of laws and procedures that are meant to repel migrants before reaching the country. ¹. Stuck in a legal injurious void and thrust into a distorted and misplaced “crisis” ², asylum seekers are reduced to numbers and sensationalized stories used to advance political agendas and sell news. But asylum seekers are real people, with real concerns, fears, histories, opinions, life goals, and voices.

Many asylum seekers migrate with family members. Often, they are mothers with children. Most leave loved ones, sometimes their young children, in their home countries. From January 2019 to March 2020, an asylum seeker was typically placed in MPP and sent to Mexico as she completed her immigration court proceedings, whether she crossed the border without documentation or presented herself at the port of entry. Compounding the uncertainty for those in MPP, in March 2020, the Trump administration invoked Title 42 of the US Code—a public health statute that allowed the expulsion of migrants at the border under the pretext of preventing the spread of communicable diseases—to bar anyone from seeking asylum to the US. The Biden administration has continued this appalling practice, as of this writing, with a few exceptions for unaccompanied minors and those in vulnerable situations. Expulsion under Title 42 further endangers asylum seekers, who must continue to wait in Mexico not knowing when or if they will resume or begin their asylum court proceedings in the US.

Roxana, whom I interviewed before the start of the COVID-19 pandemic, described her frustration, lamenting that, “One comes here [to the border] to ask for asylum in the US and one is thrown into Mexico. One does not come to seek asylum in Mexico. One comes to seek asylum in the US…So, it is unjust what they [the US government] are doing with us [asylum seekers]. It is true that it is wrong.”

Roxana was filled with a sense of confusion and injustice as she explained how she was sent to Mexico despite seeking asylum in the US. She is one of at least 71,000 asylum seekers placed in MPP since its inception, according to data from the Transactional Records Access Clearinghouse (TRAC) ⁴. The legal process fails and endangers asylum seekers and their advocates.

Roxana’s experience in MPP reveals the policy’s inherent flaws and why it must be abolished. While seeking protection from violence in her home country she had been subjected to more of it at the US-Mexico border and from the US legal system. After she was released by CBP, she met other asylum seekers at El Chaparral, a port of entry at the Tijuana-San Ysidro border region. They offered her to rent a room with them in a rundown apartment building. The two-floor shabby structure located in a dangerous drug-and-crime infested ally consisted of several rooms, some abandoned, that were rented to immigrants. On the night before her first hearing, a man assaulted and raped Roxana in one of the abandoned rooms. The assault happened late at night when most of the inhabitants, including her daughter, were sleeping. The assailant left the area immediately and Roxana was not able to identify him. Fearful of missing her appointment the next morning, she did not report it to the Mexican authorities.

At the hearing the next day, she told the judge what had happened and asked them not to send her and her daughter back for fear of future attacks. But after being questioned by CBP and spending two days in the hielera, she was again expelled to Mexico. Despite expressing her fear of being sent to Mexico, Roxana was not granted access to an attorney or a nonrefoulement interview. This is a violation of both the asylum seeker’s due process and a core international legal principle of nonrefoulement, which protects a person from being sent to a country where she faces persecution or torture⁵.

She recounted her experience when CBP accused her of lying about being raped and fearing for her and her daughter’s safety, “So, then I said, ‘You don’t have the right to tell me [I am lying]” because it wasn’t done to you…it was done to me. You can’t speak for my person; it didn’t happen to you.’” The agent refused to believe her, compounding her anger and trauma. He asked instead why she didn’t go directly to the Mexican authorities. As she shared this with me, I thought of the futility of reporting such crimes to Mexican authorities, as it rarely leads to justice and instead risks retraumatizing victims of sexual violence. The reality for Roxana was that she had a decision to make. The assault took place the night before her court hearing; so, when she had to choose between risking missing her court appearance by going to the authorities or ensuring she was in the courtroom on time, she easily decided she couldn’t afford to miss the hearing and be dismissed from seeking asylum in the US. Still, she didn’t let CBP officers or others silence her.

After Roxana was sent to Tijuana again, following her court hearing and two days in the hielera, she and her roommate were kidnapped in the neighborhood where they lived. Fortunately, their children stayed in their room with other adult roommates, as they tended to do when their mothers were out running brief errands. Roxana called the AOL staff attorney working directly on her case numerous times to let him know she had been kidnapped and beaten. She suffered a fractured and bloody skull after fighting off the kidnappers and escaping. AOL staff helped her, her roommate, and their daughters find temporary and safe shelter in Tijuana, as they continued to advocate for them to be able to complete their asylum cases from within the US. But neither of the violent attacks she suffered in Mexico were grounds for protection and exclusion from MPP.

After several court hearings, AOL attorneys submitted a request to transfer court hearings to another location, so that Roxana could be reunited with her adult daughter in Maryland. Eventually, with AOL advocacy and intervention from US federal courts and the Mexican National Institute of Migration (INM), Roxana and Noelia were granted a change of venue and were released from CBP custody. However, before being released with an ankle monitor, Roxana and her daughter were detained in border patrol barracks for nearly two weeks. This is a violation of the Flores Settlement Agreement, which stipulates a requirement for acceptable conditions and duration for holding immigrant children in custody. The Jewish Family Services (JFS) in San Diego, a non-profit organization with multiple community-based programs and legal services, provided Roxana and her daughter temporary shelter while she attended her last court appearance in San Diego, and assisted with her travel arrangements to reunite with her daughter in Maryland.

With legal support from AOL’s attorneys, Roxana was able to get out of MPP and stay in the US to complete the asylum court-hearing process. It took creative legal maneuvering and persistence from Roxana and AOL attorneys to reach this rare point in an asylum legal process for those subjected to MPP. It also took Roxana’s strength and persistence in advocating for herself during her visits to AOL and court hearings.

But Roxana’s experience of compounding uncertainty and violence during the process of seeking asylum is an abhorrent feature of the unjust MPP policy—and tragically, her experience is not unique. Since the implementation of MPP, one study found that nearly 60 percent of asylum seekers expelled to Mexico have been threatened, robbed, beaten, and extorted⁶. And, in just the first four months of the Biden administration, there were nearly 500 reports of crime against asylum seekers in Mexico⁷.

I attended Noelia’s last court hearing in San Diego in October 2019. Despite sharing that she felt anxious about re-living trauma in court or maybe with a reporter, she appeared more at ease, smiling more, breathing easier, and crying less frequently now that she and her daughter were in San Diego. At the end of the hearing, Roxana, Noelia and I hugged each other. It was a celebratory embrace for a momentous—and rare—victory in the asylum legal process for individuals placed in MPP. Roxana was emotional because the case was over for now, and she would be able to travel to reunite with her daughter and 10-year-old son. We went to the waiting area briefly while her attorney finished sorting out court paperwork. While we were waiting, Roxana began passing snacks around—energy bars, nuts, and cookies‑— to children and adults waiting to enter court. She gave snacks to three to four families. The ICE officer approached us but said nothing as I stood between them. Roxana looked at me, perhaps a bit alarmed by the officer’s body language. It is possible to see fear and bravery, defiance and deference, concern and protectiveness, empathy and distress, disapproval, and love all in one gaze. This is what I saw in Roxana.

Roxana reiterated, “You have no idea what it is like to be long hours waiting to attend court. And the children, the children struggle the most. It pains me to see [families] in court and to think of how they are treated and what they still must go through… This is why I had to give them snacks. I would like to feed them all but [the security officers] were looking.”

In my dissertation research, I interview asylum-seeking mothers from El Salvador, Honduras, and Guatemala to investigate the human implications and consequences of restrictive immigration policies, such as MPP, and asylum law. They often share having to show up to El Chaparral at 3 a.m. or spend the night outside with their children. If they were to miss a court hearing, they would be deported in-absentia and would have to re-start their asylum legal process. Once they are processed by CBP, they are transported to court using buses that interviewees in my study have described as resembling jail transport vehicles with dark widows and bars to block the view to the outside, in effect insinuating criminality. Inside the US immigration court buildings, they are monitored closely by private security in gender-separated rooms and are escorted to use the bathroom as they wait for hours for a few minutes with the judge. And this process repeats, as asylum seekers can expect to attend at least four court hearings.

MPP and the asylum legal process can crush the spirit of applicants and send the message that migrants like Roxana are not wanted in the US. But these draconian policies, cannot crush her agency, her humanity, and her ability to love, even the offender. On Roxana’s last court date in San Diego, as we waited on the 11^th floor in the San Diego County Bar Association lounge for court to begin, Trump appeared on TV. Noelia exclaimed, “Look! The president! One day I will meet him.” She also shared that she named her unicorn stuffed animal Donald Trump. Roxana explained, “I don’t teach her to hate other people. I don’t like for her to have those feelings in her heart. She prays for everyone. She would pray for me when she saw me unwell. She is very sweet.”

Roxana has given those around her hope, including me. Her story captures the complexities of asylum-seeking women’s character and humanity. Yes, they are victims of atrocious attacks to their bodies and souls. But they are also agents, advocates, and activists in their own ways. I am writing about Roxana here, but she does not need me to give her a voice. She has a voice, a quiet and powerful voice, calming, soothing, and lovingly fierce.

 

Carla Salazar Gonzalez is a PhD candidate in Sociology. Her research areas are immigration, asylum law, race/ethnicity, and inequality. Her dissertation examines how asylum-seeking women and their children from Central America, along with their attorneys and advocates, negotiate the laws and immigration policies surrounding borders and asylum. Her research has been funded by the Fulbright Fellowship and the National Science Foundation Graduate Research Fellowship. She received a BA in Sociology and MA in Social Sciences from UC Irvine. She also received an MA in Sociology from UCLA. Gonzalez is the recipient of CSW’s 2018-2019 Paula Stone Legal Research Fellowship.

 

1. David S. Fitzgerald, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers, (Oxford: Oxford University Press, 2019).
2. Leisy J. Abrego, “Central American refugees reveal the crisis of the state,” in The Oxford Handbook of Migration Crises, ed. Cecilia Menjivar, Marie Ruiz, and Immanuel Ness (Oxford: Oxford University Press, 2018), 213.
4. “MPP (Remain in Mexico) Deportation Proceedings. Syracuse University,” Transactional Records Access Clearinghouse (TRAC), accessed March 1, 2022, https://trac.syr.edu/phptools/immigration/mpp/.[/end]. Like most asylum seekers, Roxana, unable to afford an attorney, received limited legal support from staff attorneys from Al Otro Lado (AOL), a nonprofit organization that provides legal orientations and services for asylum seekers in Tijuana. AOL’s attorneys work arduous hours to advocate for asylum seekers in every way they can, despite the harassment they are subjected to themselves by US government agents, Mexican authorities, and organized crime in Mexico³“Saving lives is not a crime’: Politically motivated legal harassment against migrant human rights defenders by the USA,” Amnesty International, July 2, 2019, accessed March 1, 2022, https://www.amnesty.org/en/documents/amr51/0583/2019/en/.
5. Emily J. Johanson, “The Migrant Protection Protocols: A Death Knell for Asylum,” UC Irvine Law Review 11, no. 3 (2021): 873.
6. Tom K. Wong, and assistance from Vanessa Ceceña, “Seeking Asylum Part 2,” US Immigration Policy Center (USIPC) at UC San Diego, October 29, 2019.
7. Rebecca Gendelman, Kennji Kizuka, and Julia Neusner, “Failure to Protect: Biden Administration Continued Illegal Trump Policy to Block and Expel Asylum Seekers to Danger,” Human Rights First, April 2021, accessed March 1, 2022, https://www.humanrightsfirst.org/resource/failure-protect-biden-administration-continues-illegal-trump-policy-block-and-expel-asylum.