§2: Country Conditions
photo credit: Jay Harden
BY SHEFALI DESAI
“Are you going to jail tomorrow?,” my eight-year old asks. We’re snuggling in bed along with his younger brother.
“Yes,” I say slowly, careful to choose my words. What little my sons already know about my asylum case troubles them. “Where I’m going is called a detention center, but it is a lot like jail. The difference is that there are people locked up there who haven’t done anything bad.”
“Will you see your girl?,” my six year-old pipes up. That’s what they’ve called my client, who’s a young woman, ever since I told them I’m helping her because she had to flee her country when she was just a girl.
Trying to forestall bedtime as long as possible both boys plead, “Mommy, tell us a story about where she’s from!” I shush them, telling them it’s time to close their eyes, kiss the tops of their heads, and turn off the light.
***
A successful asylum case must include proof that conditions in the applicant’s country of origin are such that if she were to return, she would be in danger of persecution. See 8 C.F.R. §208.13(b)(1)(i). This is referred to as “country conditions” evidence.
***
Once upon a time long, long ago, on a slip of land holding together the massive continents of North and South America, there lived many ancient peoples. Deep in rain-forested jungles cradled by high mountains, they built extravagant cities and gargantuan stone pyramids—Tikal, Copan, Altun Ha.
Then one day, men from the other side of the ocean arrived with guns and germs and Spanish. They massacred, pillaged, raped, and eventually conquered the ancient civilizations.
Mother tongues harboring meanings and knowings that could never be translated into more than shadow impressions were severed. Spiritual traditions that balanced the people to the dirt and trees and rivers that sustained them were snuffed out. Whole universes disappeared and were remade to satisfy the Spaniard’s god and greed. Life as it had once existed on this isthmus of earth bridging the Pacific and Atlantic oceans was extinguished.
***
The country conditions evidence used in asylum cases consists of what is happening in the would-be refugee’s country of origin at the current moment. It is a snapshot of the asylum applicant’s homeland frozen in time. See e.g., Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); Matter of Acosta 19 I&N Dec. 211 (BIA 1985).
***
I walk to the Eloy Detention Facility’s visitation room where the guard, a tall angular man, sits yelling loudly in a thick German accent directing detainees in and out of the area.
“I’m here to see my client,” I say sliding him a copy of the “Visitation Request” I dutifully emailed to CoreCivic personnel twenty-four hours in advance as required.
The guard looks down at a clipboard in front of him and shakes his head, muttering that he can’t find my name on his list. I squeak mouse-like, “but I’m sure I sent it, I’m her attorney, I’d like to see her today, please.” The guard is distracted by a voice crackling over his walkie-talkie and motions for me to sit down and wait.
I walk over to the folding chairs, set up in rows, trying not to make eye contact with the heavily-tattooed male detainees who occupy at least a dozen of them. Each time the guard looks away, I catch catcalls and snickers whispered in my direction. This is how the guards keep an eye on the toughest detainees. I wonder if it’s also a calculated attempt at intimidating attorneys.
***
Asylum applicants represented by counsel will present case briefs containing hundreds of pages of country conditions documents, expert reports, and expert testimony to satisfy legal requirements. See 8 U.S.C. §208.13(b)(1)(i)(setting forth the government’s and claimant’s respective burdens to prove that the claimant can or cannot return to her country of origin).
Footnote: It is unclear if pro se litigants, those representing themselves, understand that country conditions evidence is crucial to their asylum claims. Asylum seekers with attorneys are more than five times more likely to prevail in their cases than those without attorneys. (Source: TRAC Immigration.)
***
For centuries after colonization, the people of Central America lived under the cruelty and tyranny of Spanish rule. Their languages, beliefs and sense of themselves forcibly crushed and replaced by imported hierarchies based on European notions of lineage, race, and wealth.
The conquerors called this period of time the Age of Discovery. But for the peoples whose ancestors had lived in the land of the fertile valleys for millennia, it was the Beginning of the Descent into Irrevocable Loss.
***
Several Central American countries lack a stable democracy and credible institutions responsible for protection and security, such as a police force. The political instability and the culture of violence have led to the normalization of violence and the remilitarization of society and state institutions. See Country Conditions Expert Report.
***
I’m watching the maximum security door swallow and eject an endless stream of brown men and women clad in detention center-issued scrubs—army-green for males, smoke-orange for females—when Rosie joins me wearing her dimpled smile. I realize I’ve been subsisting on shallow sips of oxygen as if in an air-tight container. I hug her hard and inhale deeply for the first time all day.
Rosie is so much more than my translator, although she’s that too and stellar at it. She volunteers for the immigration law clinic on top of raising three small children and finishing her undergraduate degree in law. She is the granddaughter of a Mexican immigrant and knows better than most that the absence of hope is tantamount to a living death.
Without Rosie, I’d be completely lost. Not only because I’m not fluent in Spanish despite growing up a mere two-hundred miles from the Mexican border—most Arizona public schools still do not require that students learn Spanish and offer it only as an elective in the higher grades—but also because, as a native of Eloy, she is my guide to the culture of this place.
“Where are we going to meet with her?,” Rosie asks, glancing at the meeting rooms, which are all taken. There are only five of them and often, attorneys are forced to converse with clients in corners of the open visitation area amidst the constant din and leering eyes.
“If we even get to see her,” I say despairingly. “Don’t worry, they’ll bring her,” Rosie reassures me, she’s done this before. “Is it okay if we wait for a room to open up?” I ask, knowing that both Rosie and I have long commutes back home, children to be picked up from school, deadlines. But Rosie understands and nods, her strength and solidarity easing the silent dread that’s been steadily wrapping itself around my cells.
***
In certain Central American countries, violence and human rights violations are widespread and gender-based violence is prevalent. Because of corruption in the police force and institutional weaknesses in the judicial system, much of the crime and violence goes unpunished and undeterred. See id.
***
Eventually, the Europeans abandoned their “new world,” confronted by challenges on their own continent across the great sea. They left behind a looted and poorly cobbled-together state that quickly disintegrated into seven optimistic nations: Belize, Costa Rica, Guatemala, El Salvador, Honduras, Nicaragua, Panama.
But when the subjugated peoples—who more often than not had skin many shades darker than the powerful men who ran their countries and lined their coffers with the peoples’ labor—attempted to claim rights that the rest of the world had, by then, agreed belonged to all human beings, they were brutally suppressed, imprisoned, tortured or killed.
***
Today, countries like El Salvador and Honduras are some of the most violent places on the planet. There are many factors that contribute to the violence: decades of authoritarian regimes and dictatorships, the availability of high caliber weapons as a result of the Central American civil wars and conflicts of the 1980s during which arms distribution became widespread in the region (in part due to covert U.S. funding of totalitarian regimes), and drug trafficking and organized crime. See id.
***
The first time I see you, you’re wearing a puffy orange coat with orange crocs on your feet sheathed in white socks. It’s only on a subsequent visit, when I ask you hard questions, that you tell me you wear socks because the cold temperatures inside the facility hurt your toes where your toenails were ripped out with pliers by the men who kidnapped you.
When we enter the tiny meeting room—three feet by five feet at most—I feel trapped even though I’ve never been claustrophobic before. You do too because, as I find out later, you were tortured in a room very much like this one. It was called the “killing room” because it was always covered in blood.
The door to the room is clear glass, allowing the male detainees outside to gawk at us. Inside, there is only a long narrow plastic table and three plastic folding chairs, two on one side and one on the other. Someone has painted a bright red line dividing the table lengthwise and placed underneath it a slab of particle board partition that runs to the floor.
You see me taking this all in and say — Rosie translating — “The guards do that so we won’t touch each other without them seeing, and also so we can’t pass things to one another.”
Then, with an elfin smile lighting up your face, which I think is pretty but that you eventually tell me you can’t bear to look at in the mirror because you notice the scars where your persecutors cut you and put cigarettes out on your skin, you pull out some small brightly-wrapped packages from your pocket and quickly pass them to me and Rosie.
“They’re candies I won in a game the guards organized,” you say, “I brought them for you.” I start to protest but Rosie says thank you, realizing before I do that you have nothing else to give us for our work. They’re my favorites, I say with gratitude, popping hot-pink and sun-yellow starbursts into my mouth.
***
Gangs are one of the leading causes of gender-based violence in Central America. They treat women as if they are property and feel entitled to treat women as they please, including kidnapping and using violence against them. In captivity, women are forced to have sex with one or various gang members, and are constantly beaten. Some women manage to escape, however, those who cannot are tortured and killed. See id.
***
What the people did not know yet was that the strongmen, the juntas, the dictators of the newly-minted Central American nations had behind them the support of the world’s greatest superpower. A large and mighty nation to the north that many, especially its own citizens, believed to be a beacon of light that stood for justice and freedom for all.
Many of the peoples had no choice but to flee the relentless persecution they faced in their homelands. What could they do when they were impoverished to the point of starvation, subjected to unspeakable torture, and fearing for their lives?
They did what any human being would do—they ran with as many loved ones as possible with as much as they could carry on their backs to the supposedly benevolent northern country. A promised land where, they had heard, they would find safety.
***
Gangs proliferated in Central America beginning in the 1990s after the United States engaged in mass deportations of gang members from cities in the United States. Most Central American governments lack resources and manpower to control these American-grown gangs and their activities. See id.
***
I ask if you’re ready to start the first in a long series of interviews that will culminate in your declaration detailing everything that’s happened to you in order to demonstrate that the persecution you faced rises to the level necessary to be granted asylum.
You say you’re tired but will do your best to answer my many probing questions. The guards keep you up all night with heavy-booted footsteps patrolling the cells. And, although you do not say it, you are all alone, barely on the other side of a stolen girlhood, without anyone to soothe you to sleep when the nightmares come. And they always do.
For the next several hours, you, Rosie and I create our own self-contained snow-globe. In it, we float in the mongrel language of my English converted into Rosie’s Mexican-American Spanish relayed to you, ingested, digested, regurgitated into your Central American Spanish through Rosie and then back to me. The trains of our words loop, twist, zig-zag, fall, find alternate routs, speed up, slow down, wrap around, lead into dark tunnels, and emerge in the light of our shared humanity.
***
Between 1998 and 2005, the United States deported nearly 46,000 convicts to Central America. According to USAID, three countries—El Salvador, Guatemala, and Honduras—received more than 90 percent of the deportees. Many of these gang members arrived in the United States as toddlers because their families were fleeing persecution by U.S. backed authoritarian regimes in their home countries. U.S. hostility towards these immigrants and failure to integrate them into American society may have contributed to their gang membership. Once deported, they replicated the only thing they knew—gang control and violence—in their countries of origin. (Slate Magazine.)
***
The peoples’ journey to the border of the country to the north was long and arduous and dangerous. Some of it by foot, other parts by bus, much of it by train.
Every so often, the trains would be stopped by gangs of men demanding toll payments from the people who wished to cross their territories. Those who had no money were thrown off the trains as the gangs said laughingly, “Do you know how to fly? No? We’ll teach you.”
Young women and girls traveling alone were kidnapped and forced into sexual slavery and sex-trafficking. The lucky ones found shelters in which to stay as they slowly made their way north, braving all manner of humiliation, destitution, and depravity, unaware that the place of safety they thought existed was only a figment of their imagination.
***
Colonial histories, genocides, cataclysmic upheavals—whether due to plate tectonics or armies in search of gold or power-hungry first-world politicians—are irrelevant in the eyes of the law. See e.g., Matter of M-E-V-G- (BIA 2014); Matter of Acosta 19 I&N Dec. 211 (BIA 1985).
***
Before our time is up, you look directly at me and say—and Rosie translates—“I don’t mean to make you feel uncomfortable, but I have to ask you, why are you doing this, why are you helping me?”
I work furiously to hold back my tears, to be the strong one, to maintain my role as your unwavering advocate. In my peripheral vision, I see Rosie engaged in the same struggle.
I blurt out, “Because you deserve it, because this shouldn’t have happened to you, because you’ve done nothing wrong, because you shouldn’t be in here.” It is the only time I make you cry.
Before Rosie and I leave, we promise to come back the following week. Same day, same time, I say reassuringly. You say we are all you have to look forward to.
After I’ve made the sixty-mile drive back to Tucson, I have an hour before I have to get the kids. I go to my desk, sit down, turn on the computer intending to work. But all I can do is stare, catatonic, out the window watching bare mesquite branches lilting in the breeze, their knobby tendrils reaching out for some sort of salvation.
Shefali Desai is a child of the Sonoran Desert, daughter of Indian immigrants, mother of sons, lover of the earth, and a fighter/writer/lawyer. She has been a Rhodes Scholarship finalist, Arizona Supreme Court law clerk, and VONA fellow. Her book-length manuscript was selected by Lidia Yuknavitch as a finalist in the 2016 Kore Press Memoir Competition, and her work has been published widely including in Ms. Magazine, the UCLA Women’s Law Journal, Kartika Review, and the anthology This Bridge We Call Home.
Shefali currently is co-authoring a legal paper on federal and state regulatory power over so-called sanctuary cities, litigating an asylum case, and finalizing a hybrid memoir. Her six-part series for Corporeal Clamor titled “ASYLUM” is a blended legal/personal/lyric essay that layers the law with lived experience. Shefali lives in the painted hills of Tucson with her partner and two sons.