Former asylum officer Manny said officers are trained to spot stories that raise suspicions. They receive bulletins if details in multiple applicants’ stories seem oddly similar.
“What to look for,” he said of children, “is basically the consistency of their testimony, whether they seem like they believe it or whether they seem to be speaking vicariously through someone else.”
Gang refusal a reason for asylum?
The outcome of a case may also depend on how higher-level federal courts have ruled on asylum cases.
In 2012, the U.S. Court of Appeals for the Fourth Circuit, based in Richmond, Virginia, upheld an immigration board’s denial of an asylum claim based on arguments that young Honduran males who had refused to join a gang — and reported harassment to police — were a distinct persecuted group.
Opposition to gangs and resisting recruitment is too much of an “amorphous characteristic,” the court said, for determining group membership.
But in 2013, the Ninth Circuit, based in San Francisco, reversed an asylum denial for a young girl based on arguments she lacked status within an obviously persecuted social group.
The case involved a 12-year-old who had testified in open court in El Salvador that she saw gang members assault her father and heard shots that killed him. She also said she was threatened for testifying and fled to the United States.
Her case had previously reached the Board of Immigration Appeals, the BIA, the highest review body within the immigration system. The BIA rejected the argument the girl, as a witness to crime, met the threshold of “social visibility” needed for a social group argument.
The Ninth Circuit disagreed, finding that witnesses to crimes were a distinct social group, even if they were not visible to “the naked eye.”
In Chicago this summer, lawyers for a 15-year-old from Guatemala framed his asylum bid by describing him as a member of two social groups: minors who resist gang recruitment and kids who are witnesses to crime.
Francisco, as he asked to be called, came north more than a year ago and was interviewed by an asylum officer in August. His voice still sounds like a young boy’s.
In detail, Francisco recounted what he told an asylum officer. Gangsters gave him and a friend messages warning them to join up, or die. Francisco’s friend mocked the gangsters, who were also children, when he tossed a written message he’d been given to the ground. His friend was shot in an ambush on the street that sent Francisco running for his life. “I saw a bullet hit near me,” he said.
Francisco said he spoke to a police detective at his friend’s wake, and he and his mother tried to shield themselves from reprisal by moving. But Francisco said hoods younger than he found them, and his father in Chicago, fearing his son would be killed, arranged to have him smuggled up to the United States.
The asylum officer asked Francisco details about various parts of his story, and showed particular interest in his interactions with the detective and concerns about retaliation, the boy’s lawyers said.
The social group “rubric” is one of “the most common types of asylum claims nowadays — and it’s also one of the most complex,” said Ashley Huebner, managing attorney of the National Immigrant Justice Center’s Immigrant Children’s Protection Project, which represents Francisco.
Huebner said she can’t imagine minors without lawyers trying to sort out what parts of their story are more relevant than others. Former asylum officer Manny agreed. “An attorney’s brief can shed light on a lot of things that may not be expressed clearly by the child.”
Huebner said she doesn’t expect an answer on Francisco’s request for months.
Lawyers’ quests to find documents
Gladis Molina, a nonprofit attorney in Phoenix, Arizona, said she feels an awesome responsibility taking on kids’ cases. But she says she’s also had to turn away kids whose stories simply don’t meet the threshold for asylum or some other type of relief from deportation.
A first-generation Salvadoran-American, Molina, 34, manages the children’s program for the Florence Immigrant and Refugee Rights Program. Her father left El Salvador during its bloody civil war in the 1980s and received amnesty in 1986, during the Reagan administration.
She warns her clients that they must expect “for their story to be turned upside, downside, inward and outward because you get asked so many details.”
Some kids’ stories are so horrible, Molina said, she weeps as she listens. She’s also had agonized clients call her in the middle of night and say, “Lawyer, I don’t feel like living anymore. Life is just not worth living. I’m not happy. I feel lonely.”
Molina recently prepared a complex case on behalf of a Salvadoran girl, who was 17 when she filed her application. She recently turned 18. In mid-September she underwent an interview with an asylum officer for 2 ½ hours.
The girl claims she was raped by a gangster in what may have been an initiation rite. The girl’s mother, who lived in Fresno, California, is now deceased. The young woman came north to join relatives, was detained and is now terrified to return to El Salvador because the alleged rape was reported to child-welfare services. The rapist is in jail, but like many behind bars in El Salvador, the girl says, he has the ability to order a hit on her.
Up until the girl’s interview, Molina was trying to get child-welfare records from El Salvador to bolster her argument that the girl qualifies as a member of a social group — women exploited by gangs — who would face deadly retaliation if deported.
“I want those records,” Molina said.
Molina and another attorney called and emailed a child-welfare administrator and were told the girl would need to give someone in El Salvador power of attorney to release the records. Molina tried her own family connections as well to see if she could get someone on the ground to get the documents.
“I remembered that a cousin of mine knew a doctor whose wife worked for the government agency that oversees real estate taxation,” Molina said. “So I sent her an email and said, ‘I’m an American attorney. You don’t know me, but my cousin knows your husband. Can you please help me get these documents?’ ”
If her client is rejected by the asylum officer and has to go on to an immigration court hearing, Molina said, she intends to redouble efforts to get the records.
Asylum officers will not reject a child’s claim solely because adults failed to generate documentation of abuses. But officers can ask to see certain documents, and lawyers must provide a reason, in writing, why records could not be obtained.
If you can obtain them, Molina said, records can show that a child’s terrible story is “in fact what happened and not something that she’s just conveniently recounting in America to avoid deportation.”