Above: Johanna Vásquez, 33, won her asylum case after a decade of fleeing violence in her home country of El Salvador.
PHOENIX – Exhausted and defeated, Viviana boarded an airplane two years ago in San Antonio, Texas, facing her fifth deportation from the United States back to Honduras, a country from which she’d been fleeing violence for almost a decade.
“I had been in that plane so many times that the (immigration) officer recognized me,” said Viviana, a transgender woman who asked that her identity be withheld because she has a pending asylum case.
The female officer then told her something that changed everything: “Why don’t you apply for asylum?
Up until that point, Viviana says she never knew she could apply for asylum to stay in the United States legally.
Asylum allows for someone who is a member of a “protected group” to gain entry to the United States if they’ve been subjected to persecution in their home country. But the road to winning asylum is a long and arduous one, especially for transgender women.
Once they arrive in the United States, immigration rights advocates or attorneys who specialize in asylum cases say, transgender women face a combination of challenges – namely, a one-year deadline to apply for asylum protections and a lack of free legal representation -- that make it very difficult to win their case. They encounter an immigration system that criminalizes them, leading to lengthy jail times where they face solitary confinement, and ultimately creates a deportation “revolving door” back to places where they face violence and abuse because of their gender identity.
Building a new life
At a coffee shop in Phoenix, Viviana speaks with a distinct Honduran accent. She pulls her long shiny black hair back, revealing tears. She is 39 now, and not afraid to say that she has always felt like a woman, and dresses like one.
Back in Honduras her experience was different.
She grew up with distant relatives and at times she was mistreated for being a boy playing “house and kitchen” like a little girl.
When she started coming out and dating men, the violence got worse. Sometimes she would dress like a woman to go to clubs. In September 2002, a group of men raped and brutally beat her.
“When I went to report the rape to the police, instead of helping they laughed,” said Viviana, who was living then in the small town of Quebrada Seca, in the municipality of Cortes in Honduras. “They told me that happened to me for being what I was and that instead I should be a ‘real man.’”
Three days later, two men who had taken part in the rape returned to take revenge for reporting the crime. They beat her up outside of the clothing factory where she worked.
“That’s when I decided that I had to leave,” she recalled.
It took Viviana three months to go through Mexico. She got a fake Mexican ID, so that in case she was caught by immigration officials they wouldn’t deport her all the way back to Honduras.
After being deported twice to Mexico, she made it to the United States in February of 2003. When a U.S. Border Patrol agent asked her if she feared returning to her country, this time she told the truth – she said that she was from Honduras, and she was afraid.
Viviana was given a court date with an immigration judge, but without access to free legal advice or information about her right to asylum protections, she never showed up, fearful that they would deport her again.
The current immigration system does not give undocumented detainees the right to access free government appointed counsel, like a public defender, who can advocate for them. Pro-bono organizations have access to detention facilities but can’t take on all cases of people who are detained.
Noemi Calonje, an immigration project director and advocate at the National Center for Lesbian Rights (NCLR), says she knows stories like Viviana’s all too well. Many LGBT people fail to file for asylum when they arrive in the United States, she says, because they’re either too afraid or too busy trying to survive – getting a job and a place to live -- in a new country where they lack legal status.
Calonje, who does outreach with LGBT people, says mental health issues caused by trauma can also deter people from applying for asylum.
Furthermore, once a person misses the one-year deadline to apply for asylum, it becomes nearly impossible to win that type of case.
Many transgender undocumented immigrants enter the legal system through what Clement Lee, an attorney with Immigration Equality, calls “survival convictions” - crimes associated with their undocumented status, life factors such as homelessness or addiction, or mental health issues such as trauma -- which often lead to immigration detention and deportation.
Johanna Vásquez, a 33-year-old transgender woman from El Salvador came to the United States as a 16-year-old boy in 1997. She had been raped in her country. She began taking hormones in the United States, where she felt she could safely transition to becoming a woman.
In 2010, Vásquez faced deportation as a consequence of being detained for alleged prostitution, and pleaded with authorities not to send her back to El Salvador.
“They deported me instead,” she said. “I was raped again by seven men (back in El Salvador). My second rape is something that is [too] hard for me to remember.”
Transgender women that still have male genitalia are housed in federal and immigration detention with men and often placed in solitary confinement, which is typically used as a way to sanction a prisoner’s inappropriate behavior. According to experts, they are vulnerable to face discrimination by detention personnel and sexual threats by other prisoners.
A November report from the Center of American Progress found 200 instances of physical, sexual and or verbal abuse towards LGBT detainees in 250 immigration facilities across the country. The report underscores the detrimental impact that solitary confinement has on asylum seekers that are already dealing with the trauma of violence and abuse in their country.
“It’s so horrible to be in that situation, so difficult to take it that you just prefer to be deported and get out,” said Vásquez, who spent six months in isolation. “You don’t want to tell immigration what happened to you, because their way to protect you is to lock you in a room. How are you not going to be afraid of them?”
Unlike Viviana, Johanna Vásquez won her asylum case and is able to stay legally in the U.S. after more than a decade of trying to flee El Salvador. Now, she advocates for immigration reform that would protect other transgender women.
In October, she travelled to Washington D.C. with Immigration Equality to testify before Congress. She wants legislators to do away with the one-year limit on filing asylum cases, which results in so many deportations of transgender immigrants.
“It’s hard to explain in five minutes everything that has happened in your life,” said Vásquez, referring to her testimony before members of Congress.
While she has a work permit through “withholding of removal,” the option is temporary and doesn’t carry the same protections that a path to citizenship would. So if the law were to change in the future, she could again face deportation.
“It weighs a lot on the person, they are in this sort of legal limbo The fact remains that they could be deported in the future,” said immigration attorney Lee.
The one-year window
Congress enacted the one-year filing deadline as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. The goal was to discourage fraudulent asylum claims.
“Having this arbitrary deadline doesn’t make any sense,” said Sharita Gruberg, a policy analyst on LGBT and immigration issues for the Center for American Progress. “There are lots of cases of people that have been here for years, [but] that doesn’t mean that deporting them puts them in a situation in which they’re suddenly safe.”
There is one alternative for immigrants who have missed their one-year window, known as “withholding of removal,” but it requires proving not only that they were harmed, but that there is a likelihood they’ll continue to face danger in the future in their home country.
It is “harder to establish,” especially when people are not able to provide evidence of persecution in the past beyond their testimony, said Harper Jean, a policy director for the National Center for Transgender Equality based in Washington D.C.
Transgender people often face discrimination and roadblocks from government authorities when it comes to reporting abuse in their home countries, and that’s part of the reason why they flee, said Jean.
Unaware that she could have applied for asylum, Viviana moved forward with her life in the United States as an undocumented transgender woman, and attempted to put the past behind her.
She worked for years at a cleaning company in Atlanta, Georgia, but her precarious situation unraveled in 2006, when Immigration and Customs Enforcement (ICE) officers detained her and 40 of her co-workers.
Viviana was too afraid to say anything about her persecution and rape in Honduras for being a transgender woman.
“It was something too personal for me to share with someone typing behind a computer,” she said.
Many transgender people fear that revealing their identity will lead to trouble, said Clement Lee, an immigration attorney with Immigration Equality, an advocacy group for LGBT immigrants based in New York and Washington D.C.
“They would say that in their country it was a crime, and they wouldn’t go actively talking about it to people,” said Lee.
Viviana’s own fear contributed to her being trapped in a revolving door of deportation, from the United States to Honduras. Each time she was caught illegally re-entering the United States, even with the intention of seeking asylum, the incident was treated as breaking the law, further hindering her asylum claim. In 2011 she told Border Patrol agents that she wanted to pursue an asylum claim, only to first be sent to a federal judge to be prosecuted for re-entering the country illegally.
“I came seeking protection and what I found was two years in jail,” she said.
She spent five months serving time for illegal re-entry at a men’s facility run by the U.S. Marshall’s Office. She was put in an isolation cell, intended to separate her from the male prisoners. While immigration authorities are moving away from the use of isolation for transgender detainees, privately operated facilities contracted by the U.S. Marshall’s Office are not beholden to that reform, and could continue utilizing isolation as an official policy for transgender immigrants.
Viviana’s incarceration was part of Operation Streamline, created in 2005 by the Bush administration -- a zero-tolerance program targeting immigrants who re-enter the country after already having been deported.
Viviana spent eight months in custody while waiting for an interview with an asylum officer to determine whether or not she had “credible fear” of returning to Honduras. The average wait for one of these interviews is 43 days, according to information published by Citizenship and Immigration Services (USCIS).
She passed the review, but would spend another 11 months in detention before being released on bail in September 2013. In total, Viviana spent one year and seven months in detention.
On average, immigration detainees spend 30 days detained, while asylum seekers average more than 102 days in detention, according to a report on transgender immigration released last November by the Center for American Progress.
After a long road, a federal immigration judge and the Board of Immigration Appeals denied Viviana’s request to stay in the United States. In the ruling, the judge said that the Honduran government has shown a willingness to fight violence against LGBT people and transgender people, and that for that reason Viviana wouldn’t be in danger of persecution like in the past.
But according to Amnesty International, violence against LGBT people in Honduras spiked after former president Manuel Zelaya was overthrown in a coup there in 2009. That year, local human rights organizations registered 12 killings of transgender women. Human Rights Watch reported that 34 LGBT people were murdered in Honduras from May 2009 to the beginning of 2011.
Facing international scrutiny, the Honduran government set up a special police unit to investigate these types of crimes. Yet a search of media reports from that country reveals that murders of transgender women have continued, with some women choosing to flee to other countries like Spain where they can gain asylum. Just this week, it was reported that a gay asylum-seeker was deported from the U.S., only to be tortured in a Honduran prison and later burned to death, in a fire that killed hundreds of inmates.
Viviana is in the process of appealing her decision to the Ninth Circuit Court of Appeals, but without the ability to work legally in the U.S., it is difficult for her to afford the necessary legal representation.
Policy changes looming?
A spokesperson for ICE, the agency tasked with removal of people, said it does not track statistics on the number of individuals removed who are LGBT or transgender, or the reasons why they are deported.
That becomes an obstacle in determining whether LGBT and transgender people with valid asylum claims are being disproportionately prosecuted and deported.
The Department of Homeland Security (DHS) did not respond to a request to comment on the impact that their current policies have on the deportation of LGBT and transgender people with asylum claims.
The Senate Immigration Reform bill that was approved last June would expand protections for LGBT people by removing the one-year-filing deadline and providing training for immigration judges on these issues, and would give legal status to an estimated 267,000 LGBT undocumented immigrants living in the United States, according to estimates by the Williams Institute at UCLA.
However, the bill would also increase resources for programs likes Operation Streamline, which prosecute people for re-entering the country illegally.
Some immigration reform advocates have expressed a desire for a bill to include more resources for legal representation for vulnerable populations like LGBT people.
Regardless of immigration reform, some legal experts argue that the Obama administration could use more executive discretion in considering alternatives to detention in cases involving transgender immigrants.
For someone like Viviana, change cannot come soon enough.
Her fears are magnified by the concern that her health may deteriorate in Honduras if she’s deported. She needs to take prescription medicine because she is HIV positive, and that would be unaffordable in her home country.
“If they deport me to Honduras that would be my death sentence,” she said. “It’s hard to live this way, but I know God won’t put me through more than I can handle.”