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A legitimate fear of death doesn’t always matter in the US asylum system

Kate Morrissey
The San Diego Union-Tribune

San Pedro Sula, Honduras – When Yovin Estrada Villanueva returned to his family home just months after fleeing for his life, even the dogs didn’t recognize him.

He had lost weight in U.S. immigration custody, his sister said. His hair and beard had grown long.

He hadn’t told anyone that he was being deported back to Honduras. His attempt to win asylum in the United States had failed.

Just over a year later, shortly before his 28th birthday, Villanueva was killed by the very people he fled.

He was shot while driving his mototaxi – a dangerous occupation in neighborhoods under gang control.

Villanueva’s murder was not an isolated incident.

Nor was his deportation.

The U.S. asylum system, created 40 years ago to identify and protect the world’s most vulnerable, has long resisted offering refuge to the country’s closest neighbors to the south.

Today, those cases, like Villanueva’s, are often related to gang or cartel violence. And they are often rejected.

The Trump administration has further tightened U.S. policies to deter Central American migration, arguing that harm caused by gangs amounts to “private violence” that asylum doesn’t cover. This has made it even more likely that people fleeing in legitimate fear for their lives may be deported to their deaths.

In Honduras, that violence is far from a private matter. A complex web of issues, from economic struggles to corrupt government, have created an environment ripe for gang domination that touches the majority of its citizens’ lives.

“El estado de Honduras le fallo, pero tambien Estados Unidos le fallo,” said Villanueva’s longtime friend Kelvin Enamorado. (The country of Honduras failed him, but also the United States failed him.)

There is no comprehensive database that tracks exactly how many people were deported to their deaths after telling the United States they were afraid to go home.

But in places like San Pedro Sula, it is difficult to find someone who doesn’t know of at least one person who was returned and killed.

A Beautiful Distraction

Villanueva lived in one of the most dangerous areas of one of the most dangerous countries in the world.

Honduras ranked fourth worldwide in homicide rates in 2018, according to the Brazil-based Igarape Institute.

Villanueva’s city, Choloma, had a homicide rate of 64.1 per 100,000 people, nearly double the rate of the much larger San Pedro Sula, the hub of the metropolitan area.

For most of his life, Villanueva found a way around the violence.

He was a bboy – someone who practices the hip-hop art of breaking, a dance that originated in the United States in the 1970s.

Breaking was a “beautiful distraction” from the reality that Villanueva lived in, said his sister Bany Lucely Estrada Villanueva.

When he wasn’t driving his mototaxi, he was focused on his role as a community organizer and youth mentor. Known as Bboy Ross One, he used his love of hip-hop culture to empower and motivate young people, offering an alternative to life in the gangs.

“Yo prefiero mil veces ver un nino gastandose en el piso dando vueltas alli bailando con nosotros a que verlo en la calle fumando,” his student Jency Lopez, known as Bgirl Jency Fresh, recalled him saying on many occasions. (I would prefer one thousand times to see a kid wearing himself out on the floor spinning there dancing with us than to see him smoking on the street.)

Villanueva organized events whose listed sponsors included the U.S. Agency for International Development, or USAID, as well as its local partners.

Many in the region’s blossoming rap scene credit their beginnings to Villanueva, as well.

“El fue una estrella. Mas que todo quiero que lo conozcan como un salvador de vida porque a traves del baile salvo muchas vidas,” said Lopez, who dedicates her many wins to her mentor. (He was a star. More than anything, I want people to know him as a life saver because through dance, he saved a lot of lives.)

Villanueva’s decision to seek asylum and leave behind this community that he’d built up around him began with a murder – he witnessed a fellow mototaxi driver get killed. Details of what happened that day are not safe to talk about and remain unclear.

After the killing, Villanueva began receiving threats – a common occurrence for witnesses of gang crimes regardless of whether they go to the police.

He sold his mototaxi to pay a smuggler and left in early 2018 without telling most of his friends.

En route to the U.S., he responded to a friend’s message on Facebook with his characteristic optimism, keeping the terrifying details to himself.

“Vos sabes que el hip hop nos tendra unidos. Pero las circunstancias que se estan pasando en nuestro pais me han hecho migrar no ha sido facil pero asi tenia que ser. Me llevo buenos recuerdos de todos. Nos vemos pronto en algun escenario si Dios nos permite,” Villanueva wrote. (You know that hip-hop will keep us united. But the circumstances that are happening in our country have made me migrate. It hasn’t been easy, but that’s how it had to be. I am taking with me good memories of everyone. We’ll see each other soon on some stage, God willing.)

A Well-Founded Fear of Death

It was just after sundown when Villanueva crossed the Rio Grande River into the United States on a raft on March 24, 2018, according to records from Customs and Border Protection.

Border Patrol arrested him just west of the port of entry in Hidalgo, Texas.

He ended up at the Port Isabel Service Processing Center, an immigration detention facility in Los Fresnos, Texas.

As a recent crosser, he was placed in expedited removal, a process created by a 1996 law meant to deter the large number of Mexican migrants arriving at the time. Through that process, a Border Patrol agent rather than a judge ordered him deported.

But because Villanueva said he was afraid to go back to Honduras, an asylum officer screened him through a credible fear interview to see if he might have a chance at qualifying for protection in the United States.

If he passed this first step in the asylum process, he would be allowed a full hearing in immigration court. If he failed, he would be deported.

In 2018, more than 25,500 Honduran migrants were referred for credible fear screenings, the most of any nationality, according to data from the Department of Homeland Security.

Though few ultimately got protection, most passed this initial stage. But Villanueva was among 9% of Hondurans who did not in 2018.

He asked for an immigration judge to review the decision. The judge agreed with the asylum officer. It was not possible to appeal further.

Villanueva was deported about two months after he arrived.

Asylum law protects people who can prove they have been persecuted or that they have a well-founded fear of future persecution.

That persecution must be because of at least one of five reasons – the individual’s race, nationality, religion, political opinion or membership in a social group that is fundamental to the person’s identity.

It must also be persecution that comes directly from the government that the asylum-seeker is fleeing, or from someone that the government cannot or will not control.

It is not clear what the asylum officer based the decision on in Villanueva’s case. U.S. Citizenship and Immigration Services has not yet fulfilled a public records request filed by the San Diego Union-Tribune in December 2019.

According to a series of interviews with attorneys and other asylum experts, it is likely that Villanueva couldn’t prove the Honduran government’s involvement in the threats on his life in a way that satisfied the officer.

Elizabeth Kennedy, a social scientist based in Honduras, said it can be difficult for people from the United States to understand the lack of government presence in areas under gang control in Honduras and other Central American countries.

In these places, gangs often become a parallel or replacement authority with tight control over movement, business transactions and more.

Alexander Mejia, an elected official in Choloma’s city government responsible for a violence prevention campaign, called the neighborhood where Villanueva lived a “time bomb.” He admitted that the gangs, not the government, are in control there.

Kennedy was the lead researcher on a Human Rights Watch report on hundreds of deportees who were killed or otherwise harmed in El Salvador, often by the people they had fled.

She said many of the report’s findings apply to Honduras, where she has done similar research. Villanueva’s neighborhood is a prime example, she said.

“It’s not just a gang problem or even a cartel problem,” Kennedy said. “It’s a fundamental state problem.”

The United Nations High Commissioner for Refugees reached a similar conclusion in an advisory about which asylum-seekers from Honduras likely qualify for refugee status.

But that’s not how U.S. asylum law is usually interpreted by those making decisions in cases.

Even though most Honduran asylum-seekers pass the credible fear interview, just under 11% were granted asylum from fiscal 2009 through fiscal 2018, according to a Union-Tribune analysis of immigration court records. About 59% were ordered deported.

The statistics are similar for neighboring countries such as El Salvador, Guatemala and even Mexico that asylum-seekers also frequently flee because of gang or cartel threats.

Asylum-seekers from certain other countries – running from a multitude of conditions – had much greater success, with grant rates as high as 74% and deportation rates as low as 24 percent, a stark contrast to the outcomes for the United States’ closest southern neighbors.

Susan Martin, a professor emerita at Georgetown University who led a congressional commission in the 1990s on immigration reform, said many U.S. asylum officers have told her that they had to turn down people they believe to be in danger.

“They don’t have a well-founded fear of persecution,” the officers said of those asylum-seekers, “but they have a well-founded fear of death.”

Blaine Bookey, legal director of the Center for Gender and Refugee Studies at UC Hastings, said that result isn’t acceptable in a system meant to protect vulnerable people.

Bookey is among many attorneys and advocates who see these governments as complicit in the harm caused by the gangs – a connection that would merit asylum under the law.

“In these gang cases in particular, there are often state actors who are both directly involved in the persecution or at the very least are turning a blind eye to the violence,” Bookey said.

In Honduras, many homicides go unsolved, and those facing threats have little hope of protection from the police due to a lack of support, as well as rampant corruption that reaches as far as the president’s family.

In Pimienta, a town outside of San Pedro Sula, five police investigators work out of a cramped office with three desks.

Over a recent six-month period, the team had 93 homicides to investigate in the several towns in its jurisdiction, Inspector Klisman Galeas said during the Union-Tribune’s visit last November.

The unit’s limited resources, paired with the reluctance of witnesses to come forward, make for a near-impossible task.

“Without witness testimony, we cannot get results,” Galeas said. “Citizens say we don’t do anything – and the truth is, they’re right.”

The Reason Behind Dying

San Pedro Sula is where deportees are returned after time spent in U.S. custody and long flights in which they remain shackled.

At the airport, the local U.N. High Commissioner for Refugees office conducts voluntary screenings to determine who might be in danger.

Many are too tired or dejected to stop for interviews. Still, the organization has found that between 10 and 20% of deportees they speak with are at risk of harm because they’ve been returned, according to Yolanda Zapata, who runs the San Pedro Sula office.

Some are followed from the airport and killed.

That’s what happened to Luis Tabora, an asylum-seeker whose deportation flight arrived in San Pedro Sula in September 2019.

After his relatives picked him up, their SUV was followed until they made a quick stop at a store, according to video footage uncovered by Galeas’s investigation.

The assailants opened fire, killing Tabora.

He died wearing the shoes he’d been issued in U.S. immigration custody, Galeas said.

Under the rules that the U.S. asylum system follows today, death itself is not sufficient proof that someone should have been protected.

“Even if they find that a high percentage of people who are denied asylum are killed or tortured, there are people who would say it doesn’t matter that you die,” said Jeremy Slack, a University of Texas at El Paso professor and author of the book “Deported to Death.” “It matters the reason behind you dying.”

For asylum-seekers like Villanueva who are fleeing gang violence, fitting their stories into the five protected categories in asylum law can be especially challenging.

“It’s very difficult to define the motives of the person who’s torturing you,” said Ruth Wasem, who specialized in immigration policy at the nonpartisan Congressional Research Service before becoming a professor at the University of Texas at Austin.

Some attorneys have argued that acting in defiance of gangs amounts to expressing a political opinion that should be protected, but that tactic hasn’t seen much success, according to Kimberly Gauderman, a professor of Latin American history at the University of New Mexico who works as an expert witness in certain Central American asylum cases.

Another legal strategy is to argue that an individual fleeing gang violence was targeted because of membership in a particular social group.

That social group could be the person’s gender, sexual orientation or family, among others – though changes made by the Trump administration have made all of these categories more difficult to win.

Gauderman said government attorneys often try to argue that gangs attack everyone, that there is no categorical reason for this kind of persecution.

“‘Aren’t they violent to everyone? Is there a group that gangs are nice to?’” Gauderman said attorneys have asked her in these cases. “My answer was, ‘Yes. Gangs are violent, but they target different groups in specific ways.’”

Villanueva was targeted for two reasons: because he drove a mototaxi, and because he witnessed a killing.

While gangs do specifically target transportation workers like Villanueva, an immigration court precedent from 1985 says that a person’s occupation does not count as a particular social group. That case involved a taxi driver from El Salvador.

Attorneys often argue that witnesses of violent crimes committed by gangs – another category that could have applied to Villanueva – should be considered a social group, but that comes with challenges, as well.

In its advisory about Honduras, the U.N. High Commissioner for Refugees recommended that countries conducting asylum screenings consider both transport workers and witnesses of violent crimes who were targeted by gangs as potential refugees.

Hondurans who have been threatened often don’t have options for relocating elsewhere. The country is roughly the size of Pennsylvania, and gangs and other criminal organizations have networks of surveillance and territorial control.

That leaves people who work industries vulnerable to gang extortion with few options. The transportation industry in Honduras, as in other Central American countries, is one of quick money and entirely cash, making it a prime target.

In neighborhoods where more than one gang is vying for control, they call the required payments impuestos de guerra, war taxes. Sometimes businesses have to pay war taxes to multiple gangs fighting for power.

If they don’t pay, threats can quickly turn lethal.

In Villanueva’s neighborhood in Choloma, as many as 10 different groups are battling for control, according to Amelia Frank-Vitale, an anthropologist who spent years researching in the area.

In the three months after Villanueva’s death, three more mototaxi drivers were killed in that part of the city.

And it is by no means a problem limited to that neighborhood.

Alex Diaz Zavala worked with his three sons in another town near San Pedro Sula. They drove minibuses for his small, family-owned business, Diaz Zavala said.

After one of his sons was beaten and nearly killed in front of him, Diaz Zavala sent all of his children north in late 2014.

One of them, Angel, was deported.

Angel Diaz was killed within a month of being returned to Honduras, shot while driving a minibus just up the street from where his father was parked at one of the bus stops.

He died in his father’s arms.

All That He Was

In late May 2018, U.S. officials put Villanueva on a flight from San Antonio, Texas, to San Pedro Sula, according to U.S. government records.

After about a month spent hiding in his room, he began to drive a mototaxi again.

His family was scared for his safety, but he felt he had no other option, especially after his girlfriend became pregnant.

He also devoted himself to hip-hop, planning to found a competitive breaking league and dreaming about what breaking’s inclusion in the 2024 Olympic Games might mean for his community.

But the threats came back, this time over unpaid war taxes.

He thought about leaving again. His son was born. He lingered.

On Aug. 8, 2019, about a month after his son’s birth, Villanueva got up around 5 a.m., as he did every day of the week, to go to work driving his red mototaxi with the Jordan Jumpman logo emblazoned on the side.

That morning, he messaged his student Lopez about meeting for practice in the afternoon. She said she would be there. But Villanueva never showed up.

Villanueva was shot while driving through a particularly contested part of the neighborhood to pick up a client. Local news reported multiple attackers and a volley of about eight shots.

He died where he fell, on a narrow dirt road in front of a church.

His case remains unsolved.

At Villanueva’s funeral, those close to him in the hip-hop community came to pay their respects.

They formed a circle with his coffin and took turns dedicating rounds of dancing to him, often pausing to kiss his coffin.

Villanueva wasn’t perfect, his friends are quick to say. But in his death, his life has grown larger, becoming the story of a legend in Honduran hip-hop.

Many in the scene have carried on Villanueva’s work organizing and mentoring.

Villanueva’s family moved elsewhere in Honduras.

In a way, Villanueva moved with them. Their new home memorializes his life in hip-hop with photos, trophies and dance battle posters spanning the living room walls.

“Es dificil perder un hijo. Lo tengo en mi corazon, y no puedo olvidar todo esto. Tengo que tener en mi mente todo lo que el era,” his mother said through tears. (It’s difficult to lose a son. I have him in my heart, and I can’t forget all of this. I have to have in my mind all that he was.)

The Reality of Why People Are Leaving

The conditions that Villanueva fled have uprooted thousands of people in Honduras, Guatemala and El Salvador.

And as they’ve continued to arrive at the southern border of the United States, the Trump administration has increasingly sought ways to deter them.

“The mere fact that a country may have problems effectively policing certain crimes – such as domestic violence or gang violence – or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” former Attorney General Jeff Sessions wrote in denying protection to a Salvadoran domestic violence survivor who had previously been granted asylum.

The administration has since built on those restrictions, blocking Central American asylum-seekers from waiting in the United States for their cases through a program known as “Remain in Mexico” and then barring them from accessing the asylum system altogether by requiring them to first seek protection in a country they’d traveled through.

Recent proposed rule changes during the pandemic would further restrict any real chance at refuge.

The administration has argued that these asylum-seekers are economic migrants and that they are filing fraudulent asylum claims to gain access to the United States to work.

While there is a significant economic component to the issues in these countries, it doesn’t easily separate from the threats of violence that asylum-seekers like Villanueva have fled. In some ways, the U.S. has had a significant role in creating those conditions.

Their countries have never fully recovered from civil wars in which the United States participated heavily. The U.S. staged troops in Honduras to fight against communism in the 1980s.

Their governments are corrupted by drug trafficking routes that feed the addictions of U.S. consumers, and they are struggling under U.S. exports of gang violence and capitalist sweatshops.

The region has been ravaged by natural disasters and is feeling the increased effects of climate change, which is already wreaking havoc on agricultural industry there.

The instability is furthered by migration itself, with families separated and generations of children left to fend for themselves.

“(The law) can’t deal with the human reality of why people are leaving,” said Lucas Guttentag, who teaches immigration law at Stanford University and Yale University.

Rather than prioritize programs that would address root causes, the Trump administration has carried on a U.S. legacy of investing in policies aimed at deterring migration from Mexico and Central America.

The majority of Hondurans live below the poverty line.

Villanueva worked as a mototaxi driver even though he had studied informatics because it was the best income he could find. He earned as much as the equivalent of $40 a day, according to his family.

His neighborhood, like many in the region, developed around clothing factories whose exploitive labor practices contribute to a level of economic disparity not seen in the United States. Many of those factories have ties to U.S. businesses.

Factory employees make around $200 per month working 60 hour weeks, according to interviews conducted by the Union-Tribune.

As the region’s population grew around the factories beginning in the 1980s, local infrastructure to support residents did not.

Many still live without reliable access to electricity or potable water. Most of the roads are unpaved and difficult to navigate.

Children drop out of school because their families cannot afford to pay the costs of uniforms and supplies. The government provides a very limited number of teachers. If communities want more, they have to pay the salaries themselves.

To Kennedy, the researcher based in Honduras, these conditions are a sign that the government is “not paying attention to its people.”

“That level of poverty should not exist in the 21st century,” Kennedy said. “That level of poverty gives way to a lot of criminal groups that otherwise wouldn’t exist.”

The Honduran Dream

Regardless of which combination of reasons causes someone to leave Honduras, asking for asylum is often the only option to get permission to live in the United States.

And despite the growing ranks of deportees – and the circulating news stories of those killed after their return – migration remains an intimate part of the country’s culture.

In Honduras, life in the United States is idealized and idolized – shops boast American flags in an effort to indicate that they carry superior goods.

In small towns in the mountains surrounding San Pedro Sula, many of the residents have left for the north.

Pastor Pedro Perez Castro lost about a quarter of his 200-person congregation in Cofradia to migration, he said.

“When I learn someone is leaving, I try to change their minds,” Perez Castro said.

But even many of his own children – now adults – have left.

A short drive along the highway from his town, dozens sat in line outside a factory, looking for work. Two other factories nearby were closed. Banderas, what Honduran gangs call their lookouts, kept an eye on the cars coming into their neighborhoods from the highway.

“Around here, everyone’s dream is the American dream,” said one mototaxi driver in another nearby town as he bobbled around potholes.

But for a few, there is hope of an alternative.

Villanueva’s friend Enamorado, known as Shino Rock, who raps in addition to breaking, wrote a song called “El Sueno Hondureno,” (The Honduran dream).

“No voy a los Estados Unidos porque tengo el sueno hondureno, pero entiendo que esa realidad es dificil. No esta escrito a la ligera. Es una decision seria,” Enamorado explained. (I don’t go to the United States because I have the Honduran dream, but I understand that reality is hard. It’s not written lightly. It’s a serious decision.)

He knows that, at any moment, he, his brother or any of their friends could meet the same fate as Villanueva.

“El pais esta pasando por una crisis terrible. Culpan a los jovenes, pero es algo que heredamos. Intentamos enfrentarlo en una manera positiva. No hay oportunidades. Nos toca crear nuestras propias oportunidades,” Enamorado said. (The country is going through a terrible crisis. They blame the youth, but it’s something we inherited. We’re trying to confront it in a positive way. There are no opportunities. It’s up to us to create our own opportunities.)