According to court records, it was around the year 2000 when Claudia* began to fear for her life. Claudia comes from a small town in central Guatemala with a population of about 15,000, where men and women sell local fruits and vegetables on the street between lush greenery and parks. Claudia had started to notice two men following her while she went about her day, always when she was alone—at the local fruit market, on her way to school. She had no idea who they were; each time she noticed them, they drove a tinted car and their faces were covered. It went on for months and months.
Then, one day, her life changed. It was around midnight one evening in the spring of 2003 when two men showed up at her house, masked and dressed in black, pretending to be police and demanding she open her door. They asked for her husband. Claudia, who was 45 at the time, had not seen her husband for over a decade; he'd left her, as well as her daughter, and married another woman. The men persisted; they wanted to know where he was. They told her he'd been in a guerrilla group, something Claudia knew nothing about.
Still: They kicked her in the face, pushed her to the ground, and pointed a gun at her chest and forehead. In a phone interview, she cried as she described one man leaving the room as the other proceeded to rape her, then the first man taking his turn. If they didn't find her husband, the men said, they'd return to kill her.
Claudia reported the incident to the local police two days later, but they said they would be unable to investigate since she couldn't identify her attackers. Immediately after the incident, she called a taxi and went to stay with her mother in a nearby town, where her 17-year-old daughter was also staying. She didn't go to the hospital because she was afraid her attackers would find out.
Shortly after, that same year, Claudia decided to pay a coyote to smuggle her to the US border.
According to Pew Research, the US population of unauthorized immigrants more than tripled to 12.2 million between 1990 and 2007, the vast majority coming from Mexico and Central America. Many, according to the Pew Hispanic Center, entered legally and overstayed their visas; others, more than half, entered through unauthorized means. They hid in cargo trucks, trekked the Arizona desert, or waded through the Río Grande, the river that runs along the US–Mexico border.
The proliferation of gang violence and political instability in the Northern Triangle countries—Guatemala, Honduras, and El Salvador—has ignited a surge of people, including women and unaccompanied minors, traveling to the US to seek asylum that began around 2009. Now, according to the Council on Foreign Relations, nearly 10 percent of the region's residents have fled. Despite the Obama administration's implementation of an "aggressive deterrence strategy" in 2014—involving policies meant to discourage migrants from crossing the border, including ramping up family detention in the US and an agreement with Mexico to apprehend Central Americans before they reach the border—tens of thousands continue to make the risky journey north.
Like many who make the perilous trip through Mexico, Claudia had heard about the risks along the way. Her family, some of whom had already made it to the US, had warned her about the dangers of traveling with a coyote, and the difficulties of navigating the US asylum process. But after the two guerrilla members showed up to her home, she decided she had no other choice: She could either try to leave, or stay and wait to die.
More than ten years later, she is still fighting to meet the US's stringent asylum law standards. She was picked up by immigration authorities in Texas shortly after crossing the border into the US. After being processed, she was given papers and told to appear before a judge in California, where she had family. Immigration authorities told her she needed to find a lawyer to help her stay in the country. She was taken to a women's shelter where she made a phone call to let her family know she was safe. She then boarded a bus to Los Angeles, where she has lived without legal status or work authorization ever since.
If they didn't find her husband, the men said, they'd return to kill her.
For an asylum claim to be successful in the United States, an applicant must establish "refugee" status by proving they have been persecuted or have a well-founded fear of persecution on account of one of five grounds—race, religion, nationality, membership in a particular social group, or political opinion—and that they are unable to get protection from the country in which they were persecuted.
Through a series of legal battles, Claudia argued that she was persecuted because of a falsely attributed political opinion—based on her husband's participation in a guerrilla group—and was not protected by the Guatemalan state. She was denied at each step.
After she entered the US in June 2003, the government initiated removal proceedings. With the help of her lawyer, Joubin Nasseri, in May 2004 Claudia applied for asylum, withholding of removal from the United States, and relief under the UN's Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Although the immigration judge found her testimony credible, each of those applications was denied—the judge ruled she hadn't been persecuted because of an attributed political opinion and that the Guatemalan government hadn't been complicit in her attack.
They appealed, unsuccessfully. The Board of Immigration Appeals, an administrative body with nationwide jurisdiction, affirmed the judge's decision, concluding, "[w]hile the respondent appears to have been the victim of criminal acts on the several occasions described, she has not established a nexus between any incident and a protected ground under the [Convention Against Torture]." The ruling added there was "no evidence the respondent ever expressed a political opinion and no evidence to suggest that she was harmed based on any real or imputed political opinion."
They appealed again, this time to the Ninth Circuit Court of Appeals. But in February 2014, the court ordered Claudia removed, characterizing the rape as criminal rather than as persecution on account of an imputed political opinion. While the majority of the court did not dispute that Claudia was a credible witness, that her husband was part of a guerrilla group, or that the masked men were hunting him for that reason, it found that Claudia had presented insufficient evidence that the men sought to punish her for a political opinion they attributed to her.
"I would say this is a decision that shows a really troubling application of the law to the facts of the case," said Karen Musalo, a lawyer and director of the Center for Gender and Refugee Studies at UC Hastings College of the Law who has assisted women fleeing persecution in their home countries for decades. "This was not 'just' a criminal act, as the panel ruled."
What's more, the court's justification for denying protection under the Convention Against Torture was that Claudia could not prove she was more likely than not to be tortured should she return to Guatemala, a challenging standard to meet. All of this is despite the brutal and pervasive violence against women in Guatemala, which has one of the highest rates of female homicides worldwide. The government is ill equipped to investigate or seek justice for victims of sexual crimes, evidence of which was presented in Claudia's case.
Claudia has since remained in the US through a stay of removal filed by her lawyer, which is a temporary postponement against deportation. She had hoped to sponsor her daughter to join her in the US, but because she was denied legal status, her daughter remained in Guatemala, where she, too, faces extreme danger. Claudia told me that, in 2006, her daughter left school for the day to find two men waiting for her. They raped her and left her to die. She doesn't know if they're the same men who assaulted and raped Claudia herself or not.
Women were raped and mutilated systematically, for power and control.
An asylum case often hinges on demonstrating this legal nexus between crimes committed or threatened against a victim and persecution—and it's one of the most contentious issues in refugee law. Complicating this for Claudia and the thousands of women seeking asylum in the United States is the fact that courts may not be versed in the gendered ways women face harm. The law can often be blind to the realities of being connected to and persecuted for a male relative's political or criminal activity.
"The issue of nexus comes up in every case," Musalo said. "Many, many, many cases are denied because the decision makers fail to find the required nexus. In every case it makes it exponentially more difficult to meet the refugee definition. Of course, it will come up in particular ways in cases of women, and [any] bias or lack of understanding about gender dynamics exacerbates it."
Professor Deborah Anker, the director of Harvard's Immigration and Refugee Clinic, agrees. "I think there's a problem with the failure to account for gender and take gender issues seriously in the general interpretation of the refugee definition," she said. Still, according to Anker, the women's movement has been pivotal in pushing for the interpretation in asylum law that sexual crimes have gendered origins. It is no longer the case that men are seen as lustful and crazy when they rape a woman; instead, she said, it is seen as being about asserting power and control.
Guatemala ranks third in the world for homicide rates of women, and violence is deeply rooted in the country's turbulent history. Between the 1960s and 1990s, the country suffered a brutal 36-year civil war that the UN-backed Truth Commission said, in certain parts of the country, constituted genocide against indigenous people. During the 1980s, the US-backed Guatemalan military conducted "scorched earth" campaigns against leftists guerrillas—massacring and burning down villages—whereby the Commission later found: "The rape of women, during torture or before being murdered, was a common practice aimed at destroying one of the most intimate and vulnerable aspects of the individual's dignity… they were killed, tortured and raped, sometimes because of their ideals and political or social participation."
The legacy of the war and the high rate of domestic and sexual violence thereafter seem to have a relationship, says Kelsey Alford-Jones, the executive director of the Guatemala Human Rights Commission. "Women were raped and mutilated systematically, for power and control," she said.
Crossing the terrain at the mercy of a coyote has its own set of dangers for women, and some don't even make it to the border. A 2015 report by the UNHCR on female migrants from the Northern Triangle said that female migrants, especially when transiting through Mexico, may be detained, extorted, or forcibly removed back to their home countries, or die, before reaching the US border. They also face physical and sexual abuse in extreme numbers.
Claudia described an arduous journey after leaving her daughter behind in Guatemala in 2003. Beginning in Guatemala, she and one other woman were driven by their coyote to Mexico. Then, for the next 14 days, they walked long hours through the country, usually during the night, until they finally crossed the border into Texas.
According to Claudia, other coyotes and their migrants would join their group at various points during the journey; there were upwards of 30 people fleeing their home countries, walking together. They were stashed in safe houses along the way, often without enough food or water to go around. Nearing the frontier, they were given truck tires to help them wade across the treacherous waters of the Río Grande, also known as the Río Bravo in Mexico.
Between 1998 and 2015, US Customs and Border Patrol (CBP) counted 6,571 deaths on the southwest border, which includes deaths resulting from exposure, drowning, accidents, and killings. This data is "definitely conservative," says Jessica Brown, a professor at the Center for Immigration Research at the University of Houston. Undocumented migrants often travel without IDs and use fake names, which makes it difficult to get an accurate estimate on the number of people who meet their deaths at the border. The extreme conditions of the journey are also a factor.
"Identifying bodies found in the river is hard, because of wildlife and water damage to corpses," Brown told me. "Southern border securitization has driven crossers to more and more remote locations, and those who die of exposure or dehydration may not be found until they are skeletonized. Or, indeed, never."
I was really scared, but then I remembered the fear I had in Guatemala. Every time I felt scared, I remembered that horrible night.
The fear and danger of the journey sometimes unites migrants. "I was really scared, but then I remembered the fear I had in Guatemala. Every time I felt scared, I remembered that horrible night," said Claudia. During Claudia's journey, she says, some of the tires deflated before they reached the other side, but people in the group who knew how to swim helped those who couldn't.
As the group approached the border in the dark of night, Claudia said she was so exhausted that she stepped in a hole and fell while waking through the mountains. She could no longer move; she heard her coyote say, "Let's leave her. We can't wait."
She thought she would die there, but another group making the journey helped her and carried her to a safe house near the border. The coyote then directed the group to a road, where they walked for 20 minutes before they reached the border. Immigration authorities picked them up.
In 2010, Amnesty International estimated that as many as 60 percent of women suffer sexual violence en route to the US from Central America and Mexico, sometimes committed by state officials or the coyotes themselves. A more recent report by Fusion in 2014 compiled information by interviewing directors of Mexican migrant shelters and estimated this number to be upwards of 80 percent. According to Amnesty's report, rape of migrant women is so prevalent that smugglers may ask women to take a contraceptive injection before beginning their journey to avoid pregnancy from rape. Claudia did not disclose whether this was the case for her.
As Claudia has learned, the grueling journey women take to the border is often followed by a struggle of a different kind—and it's one that may be for nothing. In the early 1990s, the US Supreme Court set up the nexus test in a case called Immigration and Naturalization Service v. Elias-Zacarias, which, according to Musalo, has made it difficult to prove asylum cases ever since. The case involved a young man, Jairo Jonathan Elias-Zacarias, who applied for asylum on account of persecution because of a political opinion. According to court records, he had left Guatemala when two masked guerrillas armed with machine guns attempted to recruit him to join their army. He refused, and was told to "think it over well." The Supreme Court denied his asylum claim. Writing for the opinion of the court, Justice Scalia found that Zacarias was not entitled to asylum because he had not proven the harm he would suffer was "on account of political opinion," which requires proof of the persecutor's motive or intent.
In an academic paper Musalo wrote in 1994, she argued the result of the case was to narrow protection by shifting the analysis of an asylum claim away from the impact on a victim and placing it on the intent of the persecutor. Because of this model, she wrote, "If intent cannot be demonstrated, relief is unavailable regardless of the egregiousness of the harm."
The Zacarias case, according to NPR, was a big win at the time for the George H.W. Bush administration, which argued that a wider interpretation would have resulted in too many asylum seekers along the southern border.
Applying the same test 25 years later, the Ninth Circuit Court similarly found that Claudia did not provide sufficient evidence of her persecutors' motive or view; thus, her rape was criminal, not political. Relief was unavailable.
Joubin Nasseri, Claudia's lawyer, says he was shocked by the court's decision.
"It's sad, because we made it very clear in her testimony that she was a victim because of her association with her husband," he said. "We made it very clear that the [Guatemalan] government refused to help her and to protect her."
Today, Claudia still lives in California without legal status, through the stay of removal, with help from her two sisters and three brothers. She has problems sleeping and suffers from frequent panic attacks and nightmares. When Nasseri told her she had been denied asylum in 2014, she said, "I felt something very ugly in my heart. I thought, Oh my God. They are going to kill me in Guatemala."
*Name has been changed.