They were staying in a tiny bungalow in Queens that belonged to Kirad’s aunt. The only common space was a kitchen just big enough to squeeze in a love seat and a small table.
For the most part, they have made it work.
As cramped as it is in this tiny room, Kirad had hoped to have one more family member sharing this space: her older sister, Susan. She and her mother last saw Susan in July, when they crossed the Mexican border into Eagle Pass, Texas. They were seeking asylum.
Kirad and her mother, Ana Batiz, were allowed to pursue their case in immigration court, and went on to New York. Susan was not. She was sent back to Honduras by herself.
This is a story about the brutal math asylum-seekers face at the border today. In this case, a mother and a daughter with virtually identical circumstances try to immigrate to the United States. Each has an interview with an asylum officer that could alter their lives forever.
One persuades her interviewer that returning to Honduras was too dangerous; she enters the country to pursue an asylum claim.
The other, an 18-year-old, fails that same test. As a result, she is separated from her only family and sent back, alone, to an environment where she feels threatened every day.
That night of their arrival at Eagle Pass, according to Kirad, border agents took Susan out of the room. “They told my mother that they were going to take me out and bring me right back,” Susan recalled.
But she didn’t return.
Long before the Trump administration’s recent policy of separating migrant children from their parents, Customs and Border Protection agents have been taking children ages 18 and older away from their parents. This is because the agency considers them to be legal adults, who should be sent to adult detention centers instead of staying with families.
But there’s a paradox. Although Susan was considered an adult at the border, she would have been considered a child in the United States as an immigrant seeking asylum.
That’s because older teens like Susan fall into conflicting categories under U.S. immigration policies. The Immigration and Nationality Act defines anyone under 21 and unmarried as a child. U.S. Citizenship and Immigration Services also uses this definition and allows children under 21 to accompany their parents to asylum interviews.
As an adult at the border, Susan had been separated from her family, so she couldn’t attend her mother’s asylum interview. She would have to fend for herself.
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Until 2010, people with HIV were banned from entering the United States. When that changed, people with HIV could also seek asylum in the U.S. if they were persecuted for it in their home country. Batiz and her daughters made a strong case that they were. She has asked that we not use the last names of her daughters out of fear for their safety.
In their small Honduran town, Batiz’s family was part of the Garifuna community, descendants of enslaved Africans and indigenous Central Americans.
Batiz said she learned she was infected only after Kirad was born. She felt ill and went to a doctor, who told her the news. Her boyfriend, who most likely infected her, left. He’s the father of her three youngest daughters (she has two older children from a previous relationship). She had the girls tested. Susan, the middle child, was HIV positive too.
Officially, Honduras has stronger protections for people with HIV than some of its neighbors. But the reality, according to Amnesty International and the U.S. State Department, is that people with HIV are routinely denied access to jobs, education and health services.
“The women who are infected are considered to be dirty,” said Deborah Ottenheimer, a Manhattan-based gynecologist who does exams for women seeking asylum because of human rights abuses. She has met Honduran women with HIV who experienced all types of persecution, including forced sterilization.
Batiz’s daughters suffered at school, especially Susan. “Everybody, all my classmates, knew about my mother and my sister, too,” Kirad recalled. She said they called Susan “sidosa,” a slur against people with AIDS.
In 2017, Batiz said her house was burned down under mysterious circumstances. No one was home at the time. She didn’t know who did it, and she didn’t contact the police because she was certain they wouldn’t investigate. But she said she knew it was arson because she smelled the gasoline. “I think they were trying to get me to leave,” she said.
The family moved in with friends, but Batiz started making plans to take Kirad and Susan to stay with her sister in New York.
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Batiz said her credible fear interview happened the day she arrived in Texas. She recalled the two officers who questioned her gasping when she told them how she faced discrimination for having HIV.
The next morning, Batiz and Kirad were released to go on to New York. They didn’t know what happened to Susan, only that she had been taken away hours earlier. Kirad said they asked people at the processing center but were told only that Susan was taken to a different place. “My mother started crying,” she recalled.
Soon after arriving at her sister’s home in Queens, Batiz got a call from Susan. She was at an adult detention center in Pearsall, Texas, run by Immigration and Customs Enforcement.
Susan’s credible fear interview took place Aug. 8, with an asylum officer speaking English in person and a Spanish interpreter on the phone. When we spoke in January, Susan recalled telling the officer about the persecution she suffered at school. She said she described how classmates would abuse her in the bathrooms. “They would put my head in the toilet and urinate on me.”
The transcript of Susan’s credible fear interview does not include this graphic incident. Regardless, it shows that Susan clearly stated that she was threatened and discriminated against, and that students wanted to kill her. “Because I am HIV-positive,” she said, “and because I am black.”
The asylum officer found Susan’s overall account credible. But she made a distinction that prevented Susan from moving forward with her asylum case. She checked a box that said “credible fear of persecution NOT established.” She left unchecked all the boxes designating asylum eligibility because of persecution. These are race, religion, political activity, nationality and membership in a particular social group. This last category could include people with HIV
A couple of immigration and asylum experts who viewed the transcript said Susan was rightfully rejected because she said the police were helpful. Stan Weber, an immigration lawyer in Brooklyn who previously worked for ICE, said he could see that argument, in part.
Weber explained the persecution Susan described was not from “a government actor or an agent of the government.” He added, “The parties that were inflicting the persecution or the threat of persecution were private actors.”
Susan claims the asylum officer pressured her to say the police were helpful. Within the transcript, she also said she was threatened at school by students about 20 times and never reported these incidents to the police “out of fear, because they told me they would hurt me more if I reported it.”
Later in August, Susan asked an immigration judge to review the asylum officer’s decision. But she had no lawyer, and the hearing was conducted by video. The judge denied her appeal. Susan’s family then hired Elizabeth Caballero, a lawyer in Texas, who asked U.S. Citizenship and Immigration Services for a new credible fear interview.
Despite additional written testimony from Susan’s mother and sister about her persecution, she was deported. Susan was put on a plane back to Honduras in November without any advance notice, Caballero said, giving her no chance to legally intervene.
“Here we have somebody that can actually be considered part of a particular social group,” Caballero said. “And she got denied.”
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In Queens, Batiz worries about Susan. In January, Batiz met with her lawyer, Cristina Velez of Queens Legal Services. They made a video call to Susan in Honduras, so Velez could learn more about what happened to prepare for Batiz’s asylum claim.
“I do not feel safe,” Susan said through the interpreter. When Velez asked why, she described people coming to the house and threatening her.
“They wear ski masks on their head and they told me that they’re going to kill me if they see me alone, and why did I come back here? I should have stayed with my mother where I was.”
After listening to this account, Velez said Batiz has a very strong case for asylum and that Susan would have, as well. She can’t understand the logic in separating the mother and daughter.
“I haven’t seen a case in which a family member who is really still dependent on the parent and whose cases overlap so entirely be separated from the family unit and not permitted to make her case,” she said.
Now Susan’s only hope of coming to the U.S. lies with her mother’s case. If Batiz is granted asylum, she could bring her daughter here as a dependent. Her next court date is in May, but it’s just a procedural hearing. The immigration court in New York is so backlogged it could take another year or more for her trial.
This article originally appeared in The New York Times.