The Long, Winding, and Painful Story of Asylum

The Long, Winding, and Painful Story of Asylum

The Long, Winding, and Painful Story of Asylum

An ancient concept, asylum has become just another political tool in the hands of our government.


Piedras Negras, Coahuila, MexicoFourteen men were slumped on mattresses and chairs, smoking inside the warehouse, watching over the migrants. One of the men had a pistol tucked into his waistband; another had a pistol resting on his lap. The men were fussing with their phones, ribbing each other, killing the morning. A slight waft of marijuana smoke lingered in the air. Someone hocked noisily, spat.

Arnovis, a thin, strong, hard-gazing 24-year-old Salvadoran man, nonchalantly grabbed his black knockoff Puma backpack—the one his mother had bought for him back in Jiquilisco—wove through the maze of sitting and slumped bodies, and walked out onto the patio.

Hey, vato, where you going? one of the men called. Just to shower, Arnovis said. That OK?

And your backpack?

My clothes.

The shower was a five-gallon paint bucket filled with water, a plastic bowl floating on the surface. It was set next to a tall concrete wall. A few wires crisscrossed the sky above the patio. A couple of the 14 coyotes—Arnovis had counted them—could see him through a large window. He grabbed the bucket and hauled it over to the door, where he plugged a coiled heating rod into an outlet, ran it back outside, and dropped it into the bucket. He stepped out again and, as the water began to warm, scanned the yard. The walls were high—definitely higher than he could jump. The branch of a mango tree growing on the other side of the wall dipped down far enough that he might be able to reach it. But he wasn’t sure if it would hold his weight.

That branch, he thought, my only hope.

The basic idea of asylum is simple: Someone comes to your door because they are in danger, because they are afraid. You open your door, and you share your roof. But within this simple idea lies a labyrinth constructed of different sorts of fear. Some fear is grounded in immediate physical danger, some is diffused in general conditions of oppression; some is exaggerated, some completely imagined. Some fears are unrealized, some send you to your grave.

As a legal construct, asylum is less simple. According to the 1951 United Nations Refugee Convention, which set the original international standard for defining refugees and asylum seekers, an asylum seeker is someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Fear is the requisite for asylum, but the definition is based on a fear of a specific entity, the state, and a fear of being persecuted by the state or its representatives. Many of today’s asylum seekers, especially those from Central America and Mexico (which, taken together, account for most of the people seeking asylum in the United States), are fleeing non-state persecutors. According to the United Nations High Commissioner for Refugees’ (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status, “in general, the applicant’s fear should be considered well founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him.”

The US Supreme Court also wrestled with the definition of well-founded fear after Congress adopted the language of the Refugee Convention into law with the 1980 Refugee Act. During the oral arguments for a 1987 case, Immigration and Naturalization Service v. Cardoza-Fonseca, in which a Nicaraguan woman who overstayed her visa appealed to the United States for asylum, attorney Dana Leigh Marks suggested defining such fear according to the “reasonable person” standard: Would a reasonable person in this same factual situation fear persecution upon return to their country? But the justices sought a more quantifiable criterion than reasonableness—they tried to pin down the quivering subjectivity of fear. In his majority opinion Justice John Paul Stevens wrote, “One can certainly have a well-founded fear of an event happening when there is less than a 50 percent chance of the occurrence taking place.”

Justice Harry Blackmun argued in a concurring opinion that “the very language of the term ‘well-founded fear’ demands a particular type of analysis—an examination of the subjective feelings of an applicant for asylum coupled with an inquiry into the objective nature of the articulated reasons for the fear.”

Justice Antonin Scalia tried throwing out a few examples, and here he and Marks, still in the oral argument, engage in some frightful repartee.

Scalia: Let’s assume that the persecution in the country you’re talking about is very…it’s horrible persecution, it’s torture; it isn’t just incarceration…. Now, suppose my chances of actually being subjected to that if I go back are one in a thousand. Would I have a well-founded fear of going back?

Marks: It depends on whether it would be reasonable to have that fear in view of the small chance that something is going to happen.

Scalia: I know it would, and what’s the answer?

Marks: The answer is that the tryer of fact should look at the specific facts which you put forth to show the objective situation.

Scalia: You see, I don’t know the answer to that. Is that a well-founded fear or not?

Marks: One in a thousand, I’m sure it’s not.

In 1986, Marks was a 32-year-old immigration attorney presenting her first case before the Supreme Court. Today she is an immigration judge and president emerita of the National Association of Immigration Judges. When I spoke with her in 2018, 32 years after she had argued Cardoza-Fonseca, she told me she had been heavily counseled to avoid any attempt at quantification and that Scalia had “backed her into a numerical corner.” Stevens finally settled on what has become an unofficial 10 percent standard: If an asylum applicant has at least a 10 percent chance of “being shot, tortured, or otherwise persecuted,” they meet the requirements for being eligible for protection.

What we are left with: To be well founded, fear should be “subjectively genuine and objectively reasonable” and can be based on a one in 10 probability of occurrence. The legal grappling with this complex structure of an emotion hasn’t exactly made matters clearer. And yet, when you feel it, nothing could be more lucid than fear—more all-consuming, more convincing, more instant.

Arnovis’s brother, living in a suburb of Kansas City, had wired money to the wrong coyote, a man named Gustavo. Well, his brother didn’t wire the money; his brother’s friend did. His brother doesn’t have papers and couldn’t send the money on his own, which may have been why there was a mix-up. Gustavo—the wrong coyote—got $700 for doing nothing, and he didn’t see any good reason to give it back. The problem—and for Arnovis it was a life-and-death problem—was that the family didn’t have any more money. After a deportation to El Salvador from Mexico a few weeks earlier and a down payment on the $6,000 smuggling fee—the family sold a prized goat for 200 bucks to help pay for the first trip—there was nothing left.

El Suri—the coyote who did not get the money—was the guy actually planning to take Arnovis across the border. The two of them had hit it off, joking around on the migrant trails; earlier, El Suri had even suggested Arnovis stay in Mexico and work with him. Arnovis got along with everyone. He liked to tell jokes to quell tension and rarely complained—that is, he was just being himself and wasn’t angling for a job in human smuggling. Maybe if it was just between El Suri and Arnovis, they could have worked something out. But El Suri had a boss. The boss wanted his money.

As El Suri made a couple of calls, Arnovis hovered nervously. He remembers one call on speakerphone. Someone was trying to convince El Suri to head back south to take the next load. I’m waiting, El Suri said, for this one last kid to pay up. We’re trying to get his brother to wire us. The man on the other end suggested El Suri chop off one of Arnovis’s fingers and send it to his brother.

Yeah, maybe.

El Suri hung up. Arnovis leaned against the warehouse wall. He felt his future rushing at him like an oncoming train. A crescendo and then—not boom but silence, death.

Today, there are two paths by which someone can gain refugee status in the United States—as a refugee or an asylee. Refugees apply from a country they have temporarily escaped to or from their own country, which must be of “special humanitarian concern” to the State Department. There are numerical limits, per region, on the number of refugees admitted each year. The 2018 ceiling for refugees from all of Latin America and the Caribbean was 1,500 people. But that was the ceiling; the actual number of refugees granted protection from all of Latin America and the Caribbean in 2018 was less than 1,000. Overall, in the same year, 22,405 refugees were resettled in the United States, and that number took another nosedive in 2019, with the 2020 ceiling set at 18,000, the lowest ever. White House officials have also reportedly considered shutting down the program altogether. In 1980, the total number of refugee admissions into the US—the majority from East Asian countries such as Vietnam, Cambodia, and Laos, as well as the Soviet Union—was over 200,000.

For asylees, meanwhile, there are no numerical limits. Asylees apply once they’re in the United States or when they show up at a port of entry. As the ceiling for refugees collapses—and as the other pathways to immigration are foreclosed—more and more people fleeing danger are making their way to the US and asking for protection through the asylum process. In 2017, 331,700 people applied for asylum in the United States, the most of any year so far this decade—almost twice as many as in 2015, and roughly six times as many as in 2010. Just over 30,000 cases were decided, however, meaning the backlog of pending cases is rising sharply. Worldwide, there were 837,478 asylum seekers in 2010, according to the UNHCR. By 2018, that number topped 3.5 million.

It all started on a soccer field in 2016. Arnovis accidentally knocked his elbow into the mouth of the brother of a gang leader in Corral de Mulas, a small town on El Salvador’s southern peninsula. One gang tried to get revenge, a rival gang offered him “protection” as the situation rapidly escalated. He received death threats, and his brother-in-law—whom gang members had mistaken for Arnovis—had a machete wielded over his neck. Arnovis’s life had become unlivable, and there was no resolution or safety except in flight. You’re dead, they told him. Sos tumba. It was either submit to his grave at home or take wing. Even if he tried to stay and somehow dodged the multiple threats, he was putting his family at risk, especially his young daughter.

And so, he fled: a months-long journey through Guatemala and Mexico, riding on top of trains, surviving cold and hunger and detention and robbery and the constant, nagging, needling fear that finally brought him here, to a coyote safe house across the border from Texas.

After another call, El Suri explained the situation: I got no problem with you, man. You’re only 200 bucks to me. But the jefe, El Suri said, he doesn’t fuck around. He wants your money by 10 tomorrow morning, and if you don’t have it by then, he’s going to come by, and what he’s going to do—he’s going to cut you into pieces.

Arnovis nodded, trying to take it in, trying to think. Trying to get out of the way of the oncoming train.

No money, and he was dead. That simple.

After a while El Suri called Arnovis’s brother again, trying to convince him to drum up the money.

If you don’t send $300, we’re going to have to take care of your brother.

There were about 75 people crashed, sprawled, and breathing on the open warehouse floor. Arnovis found an open spot and slumped down. After a while he tried calling his brother again but couldn’t get through. Then he tried Gustavo, the coyote who’d pocketed the money for doing nothing. Surprisingly, he answered.

Gustavo! Arnovis said, and explained the situation. It was all a mistake. He was going to be hacked into pieces if he didn’t pay his coyote tomorrow, and they had meant to wire El Suri but had accidentally sent the money to him, so if he could just return it….

I don’t have it, Gustavo said.

What do you mean, you don’t have it?

I don’t have it.

The $700 my brother wired you?

Yeah, don’t have it anymore. And just a word of advice, Gustavo added. If they told you they were going to hack you into pieces, you better pay, or find a way to get out of there. And then he said something Arnovis already knew: These people don’t fuck around.

To lay bare the political nature of asylum protections: During the 1980s the United States took in Cubans and Nicaraguans (fleeing communist governments that the US openly opposed) but summarily denied Haitians, Guatemalans, and Salvadorans (fleeing US-backed authoritarian governments). In 1987, Nicaraguans were granted asylum at a rate of 84 percent. Meanwhile, for both Salvadorans and Guatemalans the approval rate throughout the 1980s hovered between 1 and 3 percent. A 1982 Immigration and Naturalization Service memorandum revealed the government’s flagrantly discriminatory interpretation of the 1980 Refugee Act and the 1951 Refugee Convention: “Different criteria sometimes may be applied to different nationalities…. In some cases, different levels of proof are required of different asylum applicants.”

Asylum policy has remained both grimly discriminatory and starkly political. The United States denies almost 90 percent of Mexican claims, while granting over 80 percent of claims from Eritreans—a gaping and irreconcilable disparity. In part, the difference owes to the mutual economic dependency between the United States and Mexico. It would be a diplomatic sucker punch for the US to openly acknowledge that Mexico either persecutes or cannot protect its own citizens, but it has no problem making that same assessment about Eritrea.

Although terrorism has replaced the specter of communism, it is still largely fear—the nation’s—that drives hard-line immigration, asylum, and refugee policies. We codify the nation’s fears into law, yet we delegitimize the fears of our neighbors, the fears of refugees and asylum seekers—many of whom are fleeing not the abstract, future-oriented fear of possible demographic change, “replacement,” or improbable violence but actual, immediate, duck-for-cover, jackboots-kicking-at-your-door, the-roof-is-collapsing fear.

Arnovis went back to El Suri. He told him he’d work for him, do whatever he wanted. El Suri told him that was great. Terrific. He’d be glad to have him.

But he still needed to pay.

He had 12 hours to figure a way out. That night was long, the floor hard and cold. Arnovis sat in a daze, hugging his knees, listening to the snores and moans of his fellow migrants crowding the open floor. It was like they were in a mass grave, but still alive. In his anguish, he still felt hope; he still rejected the fact that his final truth would come to him the next morning: that train, then silence.

In the morning, walking out to take a shower on the cold patio under the watchful eye of the 14 coyotes, he found his salvation: a tree branch.

If he could reach it, and if it didn’t break, he could pull himself up to the top of the wall, grab on, and—maybe—get over. He didn’t know what was on the other side, but it was almost certainly better than what was on this side.

After plugging in the water heater and looking up at the mango branch for another moment, he walked over to it and jumped.

The marrow of civilization, Thomas Hobbes reasoned, is not mutual interest but rather mutual fear. We are frightened of each other, and so we draw each other close, establish rules of engagement: politics. You intuit the need to protect yourself, but you need to rationalize, or legislate, the need to protect your neighbor. In submitting our authority of self-protection to the state, we expect protection not only for ourselves, but for and with our compatriots. In other words, we are all safer if we are all safe.

But demarcating who is given room under the wing of the Leviathan has been an ongoing controversy that has, in part, sparked conflict, conquest, and holocaust. It has also spurred the development of institutionalized state protections, such as the Universal Declaration of Human Rights and the Refugee Convention, that today—at least on paper—extend rights and protection to every single human being on the planet. Sovereignty needs steel and statecraft; the extension of rights and protections needs incubation and cultural shifts. According to the “contact hypothesis,” the best way to counteract prejudice—to diminish fear—between majority and minority groups, between residents and newcomers, is by integration and patience. Fear typically prompts the opposite of patience. As Corey Robin writes, “What makes fear such a source of political élan is either the memory or the expectation of political entropy.” Nothing signifies political entropy more than—you can almost hear an Ennio Morricone theme—a stranger coming to town.

Two countervailing fears leave asylum seekers outside any state protections: the instigating fear that pushes people to flee their country, and the receiving population’s fear that propels them to slam the door. What results is a global crisis of homelessness: millions of people left in the cold of statelessness. To be stateless, as Hannah Arendt cogently observed, is to be rightless. Since the origin of human rights in the late 18th century, laws and protections have been hitched closely to the state. That is, if you fall or are pushed out from under its wing, you fall into a political abyss.

I first met Arnovis in the summer of 2018, just as the family separation crisis, in which the US government was tearing thousands of children from their parents after they crossed the border in search of asylum, was gaining international attention and condemnation. It was about six months after he had been trapped and threatened in the Piedras Negras safe house. At his home in the small town of Corral de Mulas on the rural coast of El Salvador, I interviewed him for this magazine. I would return to his home multiple times over the next year, staying and living with the family.

At that point, when I first met him, he had been deported twice from the United States and once from Mexico. He had spent months in detention, months on the migrant trails, and had had his 6-year-old daughter, Meybelín, taken away by US agents and sent to an undisclosed location. It was just a few weeks after Meybelín had been shipped back to him, and he and his family were in a state of extended shock, starting to pick up the pieces of their lives, assessing the damage. And he wasn’t even free yet. He was home, but the threats he had thrice tried to flee were still present, and he and his family were living in a state of constant fear and anxiety.

Back in Piedras Negras, the mango branch held. Arnovis reached up with his other hand and clutched the next branch, planting his feet against the concrete wall. In another heave he had a hold on the top edge. He braced his feet, yanked himself up, and then swung a leg over the wall. That was when he heard one of the coyotes. What the fuck!

This fucking vato! another shrieked.

Arnovis looked down the other side of the wall and saw a few dozen kids in uniforms crossing the patio of a school. The mango tree was too far for him to reach the trunk and shinny down. There was nothing to do but fall onto the hard concrete in his black hand-me-down dress shoes.

Arnovis didn’t hesitate. He didn’t have time. He didn’t even jump. He just let go.

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