Beth Fertig

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.

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.

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.

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.”

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 <a href="https://www.nytimes.com/2019/03/06/nyregion/family-separation-hiv.html" id="7d0fd94b-97d0-3ae4-a479-3daeabbf3881">The New York Times</a>.

NEW YORK — Even after more than six months, Kirad wasn’t used to sharing a bed with her mother. She was 17, and ever since they arrived in New York after fleeing Honduras, they were stuck in the same room.

A Mother and Daughter Both Have HIV. The U.S. Lets in Only One.

They were staying in a tiny bungalow in Far Rockaway, 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. Every surface was covered with pots and pans, cereal boxes and bags of food.

“We fight sometimes over the TV,” Kirad said, “because my mom wants to watch something and I want to watch something different so I go to my aunt’s room.”

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. The family of three was seeking asylum.

Kirad and her mother, Ana Batiz, were allowed to pursue their case in immigration court, and went on to New York. But Susan was not. She was sent back to Honduras by herself.

“I’m sure my mother would sleep on the couch or on the floor or whatever for the three of us to be together,” Kirad said.

“I have never been away from them,” Batiz said of her daughters.

When Batiz and her daughters arrived at the border, she did not even realize they had crossed illegally. She said she did not know there was an official point of entry at Eagle Pass, she said, so they waded across the dangerous waters of the Rio Grande with other migrants.

Batiz left her small village on the Atlantic coast of Honduras with plans to seek asylum, because she was persecuted for having HIV. “I don’t think it’s right,” she said, “for someone to tell you, ‘You should die.'”

The family did not join a caravan. She said they hitched rides with other Hondurans heading north. It all fell apart when they got to the Texas border. Batiz and her two daughters were taken to what immigrants call a hielera, Spanish for “icebox,” a processing center run by Customs and Border Protection.

That night of their arrival at Eagle Pass, according to Kirad, border agents took Susan, along with about 10 others, all young men, out of the room. “They told my mother that they were going to take me out and bring me right back,” Susan recalled.

With the current surge in families crossing the border, this means even more 18-year-olds could find themselves separated from their parents.

But there’s a paradox here. 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. These interviews are crucial because they determine whether a migrant can stay in the country and pursue their case in immigration court.

HIV Persecution

In their small Honduran town, Batiz’s family was part of the Garifuna community, descendants of enslaved Africans and indigenous Central Americans. The Garifuna tend to be extremely poor, and they have the highest rate of HIV transmissions in Honduras.

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: She was HIV positive and had been for years. Her boyfriend, who most likely infected her, left. “He abandoned us,” she said. 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.

Batiz turned to a nongovernmental organization in Honduras that helps people with HIV. She became an HIV educator. Soon, Batiz was working for the organization, attending protests to demand more medicine. One time, she said, police used tear gas and hoses on demonstrators. She was also featured in a 2013 video by the Pulitzer Center about what it’s like to be Garifuna and living with HIV.

Her descriptions are reminiscent of AIDS activists in the U.S. during the 1980s who were part of the protest movement ACT UP. Batiz said this activity made her an easy target in Honduras. She was a black woman with HIV, protesting for better conditions, and living in a place where people are terrified of AIDS.

“Sometimes I was walking down the street and some people would see me and say, ‘Here comes the one with SIDA,'” she said, using the Spanish word for AIDS. “It’s very difficult situation to be there as an activist.”

“They can’t get jobs, they often are attacked. Their children — especially if their children are thought to be, not even known to be, but thought to be HIV positive — will also be discriminated against. They won’t be allowed to go to school.”

There were also vicious attacks. “They would take her to the bathroom and would put her head in the toilet,” Kirad said, adding that these were filthy toilets without modern plumbing.

Kirad said she saw students push her sister’s head into a toilet on about five occasions, and that she would try to fight the other kids in the bathroom. Susan didn’t want to tell their mother, but Kirad did. When Batiz confronted the school, she said the director behaved as if it was no big deal. At some point around 2016, things got so bad that she took both of her girls out of school and kept them at home.

The Credible Fear Interview

When asylum officers conduct a credible fear interview, they ask basic questions about how a migrant was persecuted and what role the authorities played. The Trump administration claims the bar is too low because most easily pass, even though less than a quarter actually wind up getting asylum. Migrants who pass the test can wait years for their asylum cases to go to immigration court, because of an enormous backlog. In the meantime they can qualify for working papers. The president has criticized this as “catch and release.”

Batiz said her interview happened the same day she arrived at the “icebox.” She recalled the two officers who questioned her gasping when she told them how she faced discrimination for having HIV. “I think that’s why they took me out quickly,” she said.

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. With no additional information, they took a bus to San Antonio where they got assistance from a Catholic aid organization, which paid for them to fly to New York.

Soon after arriving at her sister’s home in Far Rockaway, Batiz got a call from Susan. She was 1,900 miles away at an adult detention center in Pearsall, Texas, run by Immigration and Customs Enforcement.

She was examined by a doctor and given HIV medications. But it took three weeks for her to get her credible fear interview.

During that waiting period, Susan said a doctor told her that the HIV drugs she was given in Honduras were not working well. She said she was also under great distress, begging other detainees in her room to let her sleep on the bottom bunk because she was afraid of heights. She had never been away from her mother before and said she was scared of the women who worked at the detention center, claiming they said cruel things to her because she was black and from Honduras.

The credible fear interview took place on 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.” She said students feared she would “contaminate” them.

Susan also described an episode in which her classmates beat her legs with a stick so badly that she was taken to a hospital. There, she said, the nurses gave her “dirty looks” because they “discriminate against black girls.”

Police officers spoke with Susan at the hospital. She said she told them about the attack, and that they helped her by talking to the school. When asked by the asylum officer how the police treated black people and those with HIV, Susan answered, “They treat them well.”

Weber explained that 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.”

In other words, Susan was being bullied by her classmates. Nonetheless, Weber is among several experts who believe the asylum officer was unfair to Susan, noting her youth, the possibility of a language barrier and her emotional state.

Early in the transcript it notes “applicant is crying.” Shortly after, there’s another red flag.

“Interpreter notes that the applicant doesn’t seem to connect terms in Spanish,” the transcript read, adding that the interpreter and applicant “might not be able to understand each other clearly.”

Susan speaks Spanish and Garifuna. She was asked if she preferred a Garifuna interpreter but she responded that she was fine continuing in Spanish. Weber said that should have given the asylum officer pause.

“You have an 18-year-old child separated from her parent that doesn’t speak a primary language that you’re conversing in, that the interpreter’s indicated that there’s problems understanding, and she’s crying and she has a very stigmatized condition, HIV positive,” he said. “The officer, I think, blew it.”

He said the asylum officer also missed an obvious opportunity to ask about Susan’s mother, because Susan stated that they came together and that her mother had gone on to New York.

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 scraped up the money to hire 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. In her 12 years practicing immigration law, she said, only one other client was deported without any warning. She’s still angry about it.

A spokeswoman with the U.S. Citizenship and Immigration Services said it can’t comment on individual cases. But she noted the 2010 law that allowed people with HIV to enter the country. She also said the agency reviews each case on its own merit, with decisions based on relevant laws and evidence.

“They didn’t want her here,” Caballero concluded, adding she suspects it’s because Susan has HIV. “They’re just as ignorant as the people who discriminate against her over there, in her home country.”

Adults or Children?

In Queens, Batiz describes feeling at ease without the discrimination she suffered in Honduras. But she constantly worries about Susan. In January, Batiz met with her lawyer, Cristina Velez, at the Jamaica office of Queens Legal Services. They sat at a small table in a sparsely furnished conference room and made a video call to Susan in Honduras, so Velez could learn more about what happened to prepare for Batiz’s asylum claim.

Susan’s oval face filled the screen of her mother’s cellphone. Now 19, she is staying with the same friends who put her family up after the 2017 fire. The two-room house is crowded, with a bedroom where seven people are sleeping. It’s crammed with belongings, and the windows are covered by wooden shutters and fabric.

Susan pointed the phone to show her mother and lawyer the bright blue Caribbean sky and the bed where she sleeps. A paralegal who is fluent in Spanish was translating for Velez and everyone wanted to know one thing: Is she safe?

“I do not feel safe,” Susan said through the interpreter, her voice growing animated. When Velez asked why, she described people coming to the house and threatening her.

Susan said it has happened about six times since she returned in November, and that they sometimes pointed guns at her. “They want to kill me because I have HIV,” she said. She locks herself in the house when they come. She said she doesn’t know who they are, but speculated that the men could be members of the local gangs, so common in Honduras, who have threatened her family and others in the past for refusing to cooperate with them. Susan said she only goes out with a friend occasionally, or to take a taxi to the hospital once a month for her HIV medicine.

After listening to this account, Velez said that 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.

Kirad is now starting over as a freshman at a public high school in Queens with a bilingual program. She has a backpack filled with notebooks for math, history, biology and English. She thinks Susan would love the high school, and wishes they could go together.

But the odds are against Susan ever joining her sister. Because she failed to convince an asylum officer of her credible fear, and her appeal to a judge was then denied, Susan can’t try seeking asylum again.

Even if she were somehow able to make the trek by herself from Honduras to the border, she would face a different process for being allowed to stay in the country because of her prior removal. The bar for passing this test would be much higher, making that “a risky proposition” according to Velez, her mother’s lawyer.

Speaking from Honduras, Susan said she’s not giving up hope. She hasn’t been able to go to school for about three years. But if she makes it to the U.S., she said, she wants to go to a technical school and become a nurse. “I want to keep studying and doing something with my life,” she said.

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Beth Fertig

Articles written by the author

A Mother and Daughter Both Have HIV. The U.S. Lets in Only One.

A Mother and Daughter Both Have HIV. The U.S. Lets in Only One.