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Rosi’s Choice

ISSUE:  Spring 2018
When a young mother fleeing violence in El Salvador faces long odds for asylum, it raises a crucial question: Who deserves sanctuary in America?

One day last July, Rosi, a twenty-three-year-old fry cook with a high-school diploma, no English-language skills, and a partially completed Salvadoran accounting degree, sat at a low table in a small, carpeted immigration courtroom in El Paso, Texas, and prepared to argue her asylum case before one of the toughest immigration judges in the nation, in arguably the most conservative circuit in the country. But even setting those challenges aside, she didn’t have a good case. 

Rosi (who asked that her real name be withheld) had crossed the Rio Grande into Texas in April 2014, a month after setting out from her home in San Salvador, El Salvador. Just a month before that, she’d been selling empanadas on the street when she accidentally wandered into a colonia run by the Barrio 18 gang. Rosi lived in a nearby colonia run by their rivals, MS-13—a fact that came to light when the gangsters surrounded her, groped her, and pulled her ID, which listed her address. They put a gun to her stomach, threatened to rape her and murder her family if they ever saw her again, and promised to track her down if she went to the police. They took a photo of her ID, then grabbed the last of her empanadas and day’s earnings before sending her on her way. 

For the next month, Rosi didn’t leave the house—not for classes, not for church. When she was eight years old, her uncle had been murdered because he, too, had crossed gang lines while selling food. She remembered how a neighbor had come to the door with the news, and how her mother ran through the colonia to find her brother dying on a nearby sidewalk. And while the men who’d threatened Rosi never came for her, she still couldn’t shake the sense that she was in imminent danger. It didn’t take long before she decided to leave the country. 

Up until then, Rosi had never traveled farther than a nearby village, where her cousins lived, but with the help of a coyote, she made her way to the US—in buses, cars, and on foot. She was arrested, finally, by US Border Patrol agents, while trying to sneak past a checkpoint in the Rio Grande Valley, then taken to a detention facility in McAllen, Texas. 

While detained, Rosi made a compelling claim for the need for protection, but due to the immigration-court backlog, her hearing was set for three years down the line—in July 2017. After three months, she was released on parole. If an asylum seeker’s case isn’t heard within six months, that person is given a work permit, in order to make a living while awaiting the court date. Permit in hand, Rosi got a job as a burrito- and burger-maker at a fast-food joint in Santa Fe, New Mexico. She got married, had a daughter, named Ana, and purchased a modest two-bedroom home on the southside. From the time she was pregnant, Rosi had dreamily planned her little girl’s life, which she imagined would bloom from the family’s small house in a working-class neighborhood into a grand career as a human-rights lawyer. She wanted Ana to realize all the opportunity America afforded. More than that, she wanted Ana to be safe, which made the matter of asylum all the more urgent.

It was this urgency, perhaps, that convinced Rosi of her chances of being granted asylum, that, despite all the evidence that suggested otherwise, things would go her way. Larger forces would work in her favor. God would intervene. The judge, Thomas C. Roepke, who in his twelve years on the bench had denied roughly 98 percent of the asylum cases that had come before him, would somehow sense that Rosi was a person who deserved to live in America. The idea of deportation was so unbearable that it had become inconceivable. This defiant optimism, which could be interpreted as a lack of comprehension about the reality of her situation, was partly why her lawyer had withdrawn a month earlier.

The lawyer was a thirty-five-year-old immigration-rights activist named Allegra Love, the founder of a pro bono New Mexico immigration-law organization called the Santa Fe Dreamers Project. Rosi and Love are a study in contrasts. Love has tangled copper hair, sleeps on her back porch when the weather allows, and hunts and butchers her own elk in the fall. She doesn’t own a suit, or a briefcase, or a pair of sensible pumps. She usually arrives at court in black jeans and cowboy boots, carrying a worn canvas tote bag stuffed with files. Rosi, for her part, has sleek dark hair, wears lipstick even when she’s wrapping burritos, and enjoys her fragranced bedroom, her telenovelas, and finding a bargain deal on a pair of ballet flats.

When they met, in 2015, Rosi was just twenty-one years old, but poised, determined, and, Love noted, “glamorous,” with luminous skin and an easy smile. Love was dressed in her warm-weather uniform of a skewed cotton miniskirt, flip flops, and giant hoop earrings.

Rosi leaned toward her husband, Elias, who had brought her to the office. “Is she the lawyer?” Rosi whispered. 

Elias nodded. 

“Honestly, I don’t see her in the style of a lawyer,” Rosi said. But once they sat down at the table and started working, Rosi was impressed by Love’s “joyful” demeanor—and realized, too, that she was great at paperwork.

In Love’s mind, she was only committing to help a nice young woman with some forms. For Rosi, however, the paperwork was a critical first step in building her case, a sign of Love’s commitment to seeing her through the whole ordeal. She was relieved to have an American lawyer on her side. For all her confidence, Rosi admitted to me that, with her interrupted schooling and her lack of English, she considered herself “ignorant.” Love was her educated advocate, one who commanded respect, who would protect her in court, who knew the law. 

Love suspected right away that Rosi didn’t have a winnable case—like most victims of gang violence, she didn’t easily fit the definition of a refugee, which is necessary for a viable asylum claim. Some months later, when Rosi was pregnant with Ana, Love developed a fresh strategy: She would ask for prosecutorial discretion, a tool of both compassion and efficiency, whereby an Immigration and Customs Enforcement (ICE) prosecutor can move to close a case if it is determined that the migrant in question has deep ties to the US and, among other factors, presents no threat to public safety or national security. President Barack Obama, referred to as the “Deporter-in-Chief” by some immigration-rights advocates, had overseen the forcible removal of more than 3 million undocumented immigrants. But his policies focused on “felons, not families.” With millions of undocumented immigrants living in the US, and a limited ICE budget, the introduction of prosecutorial discretion allowed ICE lawyers to simultaneously reduce the backlog and keep families together.

All told, Rosi and Elias earned about $4,000 a month, working three minimum-wage jobs between them. What they didn’t send to family in El Salvador or use to pay back relatives for the cost of Rosi’s emigration to America they cycled back into the local economy, paying their mortgage and taxes, purchasing goods and services. 

Photograph by Adria MalcolmLove considered this and other factors (including the fact that neither of them had a criminal record) when she decided that ICE prosecutors, presumably overwhelmed with work, and unenthusiastic about separating an American baby from her mother, might give Rosi an out. In El Paso, where so many asylum seekers were denied, prosecutors had quietly used discretion to administratively close over 18 percent of cases since 2013. They had already closed seven cases for Love in 2016, including those of two Latin American moms.

But on February 20, 2017, one month into the Donald J. Trump presidency, John Kelly, then Secretary of the Department of Homeland Security, issued a memo asserting that the agency would “no longer…exempt classes or categories of removable aliens from potential enforcement.” The memo listed criminals as high priorities for deportation, but there were no low priorities. Across the country, prosecutors stopped closing cases. In the first five months of the Trump administration, fewer than 100 cases were closed monthly, compared to 2,400 cases closed on a monthly basis during the same period the previous year. 

“So now your only option is to apply for political asylum—but you will lose,” Love told Rosi at a meeting in her office in June, a month before the hearing. To qualify for asylum, a person must prove that she is a refugee. To prove refugee status, she must demonstrate that she was persecuted or has a well-founded fear of future persecution, either by the government or by another actor that the government is unwilling or unable to stop. This persecution must be due to the asylum seeker’s race, religion, nationality, political opinion, or membership in a particular social group.

“What the clients don’t understand and what America doesn’t understand is that you can walk out of a courtroom with someone being deported, where every single person in the room is in complete agreement that the person will die,” Love told me. “There’s just no nexus between the fact that they’re going to die and their identity in their society.” 

With Rosi, it wasn’t clear she would die if she was sent back to El Salvador; it was just a possibility. In any case, it was difficult to fit her into the modern definition of a refugee. After ditching her strategy of requesting discretion, Love had tried to see if any amount of creative legal wrangling could conceivably fit Rosi into a persecuted social group. She enlisted the help of Victoria Maqueda, a twenty-four-year-old attorney who worked at the Dreamers Project. But after combing through asylum law, Maqueda couldn’t find any past case that might set a precedent for a win. She couldn’t even prove that Rosi was in danger. She hadn’t been targeted by the government, and had never reported her assault to the police. And even if Maqueda argued that Rosi’s persecution came at the hands of gang members who enjoyed a sort of free rein over the citizens of El Salvador—and there was always the question of whether threats and a mugging rose to the level of persecution—there was no connection between that persecution and Rosi’s identity. She’d been threatened simply because she’d stepped into the wrong neighborhood with a basket of pastries.

“I’ve heard so many stories from Central America that are a lot worse,” Maqueda told me. “I could hear the argument about how she could go back, and I couldn’t necessarily fight against that, but I’m aware that I haven’t experienced what she has.” Maqueda is stoic and unsentimental; Rosi’s optimism confounded her.

Indeed, Rosi’s buoyancy, and her faith, were puzzling. While they served as a kind of survival tactic during harrowing experiences, they also seemed to extend, at least for the time being, only to her situation in the US. An inordinate number of Salvadorans have been killed, raped, brutalized, and extorted by gangs, but the majority of people who live there enjoy long lives and raise families, albeit against a backdrop of lawlessness. If Rosi was sure that God would protect and guide her, why did she believe that this was true only in America? Why would that same god forsake her in her home country?

For Rosi, these questions were superfluous: She believed, with visceral conviction, that she would be killed if she were to return to El Salvador. It was, in some ways, unfair to try and assess the accuracy of her perceptions through an American perspective. A mugging might mean something different in the context of her life in San Salvador. As Love said to me about another client, who’d been beaten by her husband before taking the arguably extreme step of heading toward the border: “I’ve never had my ass beat so bad that I had to change countries, so it’s hard to judge what you should do morally.”

Rosi, like most immigrants, was coming to the US from a place unimaginable to most Americans—immigration judges, prosecutors, and policymakers among them—where gang violence is widespread, uncontrolled, and ferocious. Where newspapers regularly run stories detailing senseless deaths: an elderly shepherd slaughtered in his field for reasons nobody could glean; a grandmother and her granddaughter shot down as an initiation. 

Women and girls are distinctly vulnerable to gang violence: Gangsters treat women like property, often acquiring them as girlfriends by force or threat, and harming them to punish disobedience or settle scores. One of Rosi’s friends from her accounting class had been murdered for dating a member of a rival gang. 

Setting aside instances of gang brutality, the greater Salvadoran culture is steeped in machismo and extensive domestic violence: Over a quarter of Salvadoran women have experienced physical or sexual violence at the hands of a partner. And they are unlikely to get justice: In 2014, the year Rosi fled, of 978 reported cases of violence against women, four resulted in a conviction. By 2015, the year after Rosi left, El Salvador was the second-deadliest country in the world for women, after Syria, with roughly three-quarters of instances of sexual violence committed in the victim’s home, and the vast majority of sexual-assault victims under the age of twenty. What’s more, abortion is illegal, no matter the circumstances of the pregnancy, and punishable with lengthy sentences. In 2016, a teenager in El Salvador who had been repeatedly raped by a gang member while in a forced relationship gave birth to a stillborn baby and was sentenced to thirty years in prison.

So young women like Rosi were abused by their partners, targeted by gang members, and punished or ignored by the police and the government. Sometimes these populations all merged together in a woman’s life: By some estimates, gang members and their web of support comprise roughly 10 percent of the country’s population.

Love knew all of this—she had heard the stories for years—but she also knew that in an immigration court, and especially in El Paso, the fact that an individual faced appalling circumstances back home didn’t necessarily entitle her to protection. To Love, for all its grisly details and truths, Rosi’s asylum claim was, by any legal calculation, one without merit.

Rosi is one of millions of people who have fled the Northern Triangle of Central America, a dense, dangerous, impoverished slip of land between Nicaragua and Mexico, which includes Honduras, Guatemala, and El Salvador. Many of these migrants are fleeing violence, but others simply want an education for their children, or to earn money to support their families back home. For most, the only legal option is to insist they fear for their lives and apply for asylum. In 2014, the United States trailed only Germany in the number of people seeking asylum within its borders, with over 121,000 applications—a 44 percent rise from the previous year, attributed largely to people fleeing the Northern Triangle. Among them, Salvadorans had the second-highest asylum-denial rates nationwide between 2011 and 2016, with nearly 83 percent of claims rejected, followed by Hondurans and Guatemalans. (Mexicans topped the list.) 

“Asylum is meant to help individuals fleeing persecution,” Love said. “It’s not meant to help entire nations that are in exodus. Political asylum is the only tool there is, but it’s a horrible tool—not just for the individual seeking protection but for the system, too, because it wasn’t meant for hundreds of thousands of people. You can lose and appeal and the US will spend five years on a single case.”

Prosecutorial discretion is one way to deal administratively with immigrants who don’t necessarily qualify for asylum, but who might deserve relief nonetheless; unlike asylees, those granted discretion cannot become citizens, and their cases can be reopened at any time, but they can still live and work legally in the US. The government can also offer Temporary Protected Status (TPS) to certain populations who are already in the US but who would face hardship upon return to their home countries because those countries are mired in extraordinary circumstances, such as armed conflicts, epidemics, or environmental disasters. TPS allows a person to work and travel legally. But the restrictive Trump administration was already unlikely to give TPS to anyone fleeing gang violence; in fact, in January 2018, Trump revoked the long-standing Temporary Protected Status—instituted in the wake of a pair of 2001 earthquakes—of nearly 200,000 Salvadorans. 

Migrants from the Northern Triangle—as well as Mexican migrants, to some degree—are largely poor, and they are coming to the US in large numbers, overland, fleeing a uniquely modern gang catastrophe. For these reasons, this specific population stokes the “floodgates” fear—the terror that if so many are allowed in on humanitarian grounds, entire populations will follow, emptying into the US. Likely due in part to this fear, the US government has made no attempt to create a new process by which Central Americans and Mexicans who don’t strictly qualify as refugees, but who nonetheless seek—and in many cases, need—refuge can be provided protection.

Instead, both the Obama and Trump administrations have instituted blanket deterrents that include indiscriminate deportations, which means that people who warrant asylum are sometimes unjustly blocked from filing applications at all. Meanwhile, economic migrants can slip through loopholes and, without any other legal alternatives, attempt to gain refugee status. At the same time, people who exist in between categories—needing help but not qualifying for asylum—are left in limbo, and are eventually forced to disappear or are caught and deported. Among them, anyone who fears for his or her child’s life, or has nothing to eat, or wishes to reunite with his family, may well return, repeatedly, crossing a national border no matter the danger, no matter the agents, no matter the fence.

“This is our regional refugee crisis,” David Baluarte, Associate Clinical Professor of Law at Washington and Lee School of Law, told me. “But we would rather view it in terms of a security crisis. That’s politically useful, and it plays into concerns Americans have about shifting demographics, and what we are doing with public resources.”

This is how Rosi and many thousands like her found themselves in an impossible bind. And while Love appreciated how punishing Rosi’s circumstances were, she also knew that Rosi didn’t have a winnable case. Love couldn’t take on such a loss. It was particularly hard for her to come to this conclusion because, as she explained, “I can’t say no. And I love, like, everyone.” But she already had too much on her plate. 

When Love wasn’t giving free counsel or managing her staff, she spent much of her time marching, campaigning for immigrants’ rights, mentoring students, and taking calls from journalists. She sometimes began working from home at 7 A.M. and ended at 10 P.M., speaking before a group of supporters at a low-key fundraiser at a bar. She spent days locked in a dilapidated detention center, filling out paperwork for transgender and African asylum seekers. She sustained herself on mugs of cold black coffee, scrambled eggs, and pork burritos that grateful clients brought by her office, and she considered keeping a wan cantaloupe in her fridge “fancy.” When she wasn’t working, she liked to hike mountains at night, drink tequila with friends, or eat spaghetti in her twin sister’s nearby kitchen while holding one or both of her young nephews on her lap.

Love tended to have an idea and then, without considering downsides or possible difficulties, simply make it real. For example, she one day decided that migrant workers and immigrants in the isolated rural New Mexico farmlands needed consistent access to free legal advice. So she purchased a used RV for cash from a client, painted it turquoise, and drove it herself throughout the countryside some summer weekends, blasting country music, a kind of wild-card mobile office providing free legal services. She had launched the Dreamers Project in 2015 with a $5,000 grant, working from a tiny, windowless, rent-free room in an NGO for homeless kids, paying herself an annual salary of $29,000. Within a year, she’d landed enough funding to move into an old motorcycle shop nestled between a vegan Thai restaurant and a tattoo parlor. She hired two young attorneys, including Maqueda, and an intern, and tacked an American flag to the wall.

Within two years of the founding of the Dreamers Project, Love had an expansive if shabby office, an abundance of secondhand furniture, and a growing staff of eight. She hung a new, larger American flag at the entrance, and a FUCK LA MIGRA sign above her desk. She ran on grants and donations, which poured in once Trump was elected. She had once rejoiced at a $20 check; now she was getting $20,000 at a time. In a sea of appropriate, suited attorneys, she was distinctive and charismatic. People were drawn to her. She said yes to every opportunity, spilling out information for journalists, giving a speech at a church where she apologized for her sailor’s mouth and then swore freely. She spoke at national conferences; sat on a panel with the Santa Fe mayor at SXSW; was interviewed on podcasts; and had been profiled by the local newspapers and featured in national magazines. She couldn’t go out in Santa Fe without being stopped by a fan, a donor, an eager volunteer, a grateful former client, someone whose aunt needed a green card, or even a stranger who recognized her and needed a jump-start for his car.

Photograph by Adria MalcolmPhotograph by Adria Malcolm Love, a New Jersey native who had spent her high-school years in Wyoming, hadn’t given much thought to immigration issues until she landed in New Mexico, a border state with the nation’s highest-percentage Hispanic population. Two years out of Dartmouth, she got a job at a bilingual English-Spanish school in Santa Fe. During the week, she taught third grade; on weekends, she waitressed. Then one day she arrived at school to find her classroom nearly empty. George W. Bush’s Operation Return to Sender, a series of surprise nationwide ICE raids, resulted in the deportation of over 23,000 people. Undocumented parents, terrified, had kept their children at home. Love knew these parents and found them to be, generally, hardworking assets to their city. She started to wonder: What is it to be an immigrant in America? What is it to fashion an existence under the radar?

In an attempt to better understand, she drove to Arizona in the summer of 2007, where she volunteered with No Más Muertes, an organization that patrols the 100-plus-degree Sonoran Desert, leaving water for migrants and searching for the sick or injured. The year Love worked there, at least 398 people died trying to cross the southwest border. On one patrol, she and a migrant both fell seriously ill; she was driven to a doctor in an air-conditioned car, but the volunteers were legally forbidden to transport an undocumented person, and so the ailing man was forced to walk miles to a hospital.

By 2011, Love had a law degree from the University of New Mexico, with plans to focus on immigration issues. She joined a private practice, but she couldn’t bear to charge people who were making minimum wage and left the business after three months. She got a job as a social worker for the Santa Fe public school system, integrating her legal expertise with the position by helping kids get documentation through the Obama administration’s Deferred Action for Childhood Arrivals, better known as DACA. The policy allowed some young people brought illegally to America as children (before age sixteen), who had few ties to their countries of origin, to avoid deportation and work legally in the US. Over time, Love built up a client list of 200 families and slowly began to provide legal aid full-time. When the school district fired her (“It was a liability issue,” she says. “The school was like, Shit, we have a crazy lawyer on our staff.”), she “cried for thirty minutes,” and started the Dreamers Project.

Love became increasingly immersed in immigration issues. Concerned by the 2014 influx of Central Americans who’d been crossing into the US with stories of bloodshed back home, she spent three weeks volunteering at a migrant shelter run by Franciscan monks on the Mexico–Guatemala border. One afternoon, she walked out of the shelter and saw la Bestia—the Beast, also known as the train of death—barreling north along the tracks just a few yards away, with hundreds of migrants huddled atop the boxcars—men young and old; pregnant women; mothers holding toddlers or infants in diapers; children traveling alone, hugging small backpacks. Love fell to her knees at the sight of it. People began exiting the shelter and sprinting for the train, some with babies clutched like luggage, hoping to pass their children to a rider and then hoist themselves up.

Love was never able to shake that image of la Bestia, belching smoke as it charged out of the hills, the inevitability of yet more migrants—who knows how many, only that they were the poorest, those who couldn’t afford to hire smugglers—being injured or killed as they fell or were crushed.

“What would you have to be fleeing to put your child on a freight train?” Love said, recalling that moment. “What monster would have to be chasing you? There’s nothing about being Salvadoran that makes it easier. It’s not easier for a Syrian to load their baby into a ship’s hold. When you don’t objectify these people, it’s too much pain to let into your heart.”

Love returned home determined to provide more services for immigrants. By 2017, the Dreamers Project was inundated with work, with 500 cases a year and thousands of clients overall. Love had difficulty deciding whom she could take on, because for each person she helped, she had to put off another. It was quickest and easiest to process visa and work-permit applications. Asylum cases heard in El Paso (New Mexico immigration cases are usually routed there) were notoriously time-consuming and hopeless. Plus, El Paso was a five-hour drive from Santa Fe. To take on a feeble asylum case meant devoting critical resources to a near-certain loss, rather than devoting them to cases with better odds.

Photograph by Adria Malcolm

“Sadly, cases like Rosi’s are where I have to put up boundaries,” Love said. “It’s such an ugly thing to feel that the demand for lawyers is outpacing our resources. But I can’t own all these failures myself—we are working within a public government system.” 

Owning these failures takes a toll. In 2017, Love and two of her attorneys began seeing therapists for secondhand trauma. Jessica K. Miles, a lawyer who heads up the El Paso office for Noble & Vrapi, a leading New Mexico and West Texas immigration law firm, told me that most attorneys she knows who argue asylum cases have confessed to breaking down emotionally—in their cars, or behind closed office doors—every few months. Defeat is a constant, and comes with the added grief of real possible harm—a client’s death, rape, torture—as a result.

Victoria Maqueda, Love’s staff lawyer, began therapy after working for three months to get protection for a young Salvadoran man who had been shot at with a machine gun for preaching Christianity to kids in gang territory, and for whom asylum was finally denied. “I know we would have won anywhere else,” Maqueda said. “Having to sit next to him in court, feeling him shake, hearing him cry. I’m not ashamed to say it: That case broke me.”

One night, Love and I sat on the couch she had recently dragged onto her porch to use as a bed when she felt like sleeping outside. (Her living room was now empty but for a futon.) The yard was overgrown, full of voracious mint plants, and damp laundry hung on a line. She looked out at a rusted trailer balanced on cinder blocks, where she sometimes let homeless teens crash. A gigantic gray cat purred by; she despised the animal, which a friend had dumped at her place, because it woke her up every morning with its insistent cries for food.

Love felt she’d done a lot of good: She had worked to keep families together and had helped more than a thousand people get documentation and protection—teenagers, unaccompanied kids, abused women, single mothers with babies in tow. But then there was Rosi. After two years working together, the women had emerged from their professional relationship with conflicting viewpoints on the very nature of that relationship: Love insisted that she had never agreed to represent Rosi in an asylum case, and Rosi insisted that Love had taken her on, and in so doing, had given her hope and then abandoned her. Even though Love was firm in her decision to disengage, the case haunted her. There were so many like it, with no good solutions, and they kept pouring in. There was the Honduran man who’d arrived at the border with his four-year-old son, who was put in detention while the boy was sent to federal foster care; the two cases that involved women who had miscarried while locked up, despite an ICE policy against holding pregnant women at all. Recently, a Guatemalan client had been denied a stay of removal. He flatlined from a heart attack on the tarmac while being led to the government plane, was resuscitated, then deported again.

These days, Love sniffed essential oils, which her therapist had suggested, and wore a healing crystal around her neck, given to her by some women at a stress retreat that she had found counterproductively stressful (she’d announced to the group that beer and hiking helped her unwind, which was greeted by “a lot of pearl-clutching,” and the suggestion that she try yoga and hot springs instead). She often asked herself what compelled her to keep going, and just as often found the answer in her commitment to the community. (“Somebody has to provide free legal services,” she said.) But really, her motivation was more deeply rooted. The work brought her closer to some nebulous sensation she craved.

“Something is happening in my heart that I can’t do without,” she conceded. “I think nuns know what I’m talking about. It might be God.”

In June, a month beforeher court date, Rosi left work, picked up Ana at the babysitter’s house, and drove to Love’s office for their final meeting. Though Love had told Rosi repeatedly, over several months, that she was withdrawing as her lawyer, she had the nagging feeling that Rosi hadn’t digested the information. Indeed, Rosi entered brightly, carrying Ana in a car seat in one hand and a diaper bag printed with pink owls in the other. Love and Maqueda were gloomy, and had been aimlessly standing around the office in wait. The women hugged and headed to a sitting area, where the lawyers sank into a worn green couch and Rosi perched on a hardback chair. Ana sat in her car seat on the floor. Love handed her a shiny octopus beanie baby, fished out from a tub of donated stuffed animals. 

“Look, Rosi, our plan before was to ask for prosecutorial discretion, and now our plan is…” Love began. “Well, now we have no plan.”

Rosi’s options were bleak at best, Love said. Rosi knew what they were: She could voluntarily return to El Salvador—a death sentence, in her mind—or she could go underground in America, which went against her nature (having snuck across the border, she nonetheless had an almost outsized respect for law and order). Plus, she had a whole life to which she was devoted, and ambitions. To disappear would mean dismantling this life. 

 “I have faith in God and love,” Rosi said. “The judge will hear my story with compassion.”

“I can’t go to El Paso based on faith in God and love,” Love answered, growing cold. She wanted to tell Rosi to disappear, but knew she could not legally advise her to do so.

Ana began to babble, and Rosi, who had been rocking her car seat gently, pushed it with a sudden fervor. “I will bring evidence,” she said.

“You can give all the proof in the world,” Maqueda said. “The judge can accept everything in the world and you will still lose.”

 “Rosi, what’s your plan, if the judge refuses?” I asked.

“I won’t go back,” Rosi said. “Everything is for the future of my baby.”

She thanked the lawyers and began to gather her things. Then she turned to me. “Do you want to know what my plan is if the judge does say I am a wonderful person and can keep my residency?” I did. She beamed. “In that case, my plan is to transfer my high-school degree from El Salvador to here, to take English classes, and to start studying at university for my professional career.”

After the meeting, back at her home, Rosi sat on a plush beige love seat staring at Spanish-language news on the television. The news, as well as her telenovelas and social-media feeds, focused mainly on immigration-related dramas: migrants forced by cartels to transport drugs through the desert; ICE and Border Patrol harassment; YouTube videos of good people beating the odds and winning green-card lotteries or landing work permits. “I can show I’m braver than Allegra,” she said. “I can demonstrate to the judge that I’m not bad.”

“Do you believe that good people get deported?” I asked her. 

“I saw lots of stories, where people who were about to be sent away would get opportunities to stay here with their families.”

“But do you believe that good people get deported?”

She sat still, averted her eyes, and then finally looked up. “In some cases, yes,” she said.

It was not pleasant to try to force Rosi to reckon with the possibility of losing her asylum case. I recognized her unflagging positivity as a coping mechanism for a young mother stuck in a terrible predicament. Since she didn’t have much recourse, maybe it was better for her to harbor under a happy delusion than to face the truth. Then again, she seemed unprepared, on a practical level, for defeat. Love found it particularly painful to be the bearer of bad news. An idealist, she related to and applauded Rosi’s seemingly infinite wellspring of hope, which ensured that Rosi was almost always exuberant, even during her darkest times.

“I feel like I would be like her, with that spirit, except I have to be like me, trying to crush her,” Love told me the day after the June meeting, over margaritas (she had helped the waitress’s son get legal status, and the waitress delivered a free platter of nachos to the table). “But her way is the best way to be.”

The morning of her hearing, Rosi woke just before dawn. She focused her energies on the judge, whom she imagined being persuaded by her circumstances, her character, moved to act magnanimously in her favor. She prayed for God to touch the man’s heart. Then she woke Ana and fed her cereal.

By 6 A.M., the family was headed south toward El Paso in the early violet light. Elias drove while Rosi sat with Ana in the back. The dry, empty terrain, which stretched into a boundless sky, eventually turned into trailer parks and farms. Ciudad Juárez, Mexico, appeared to the south, a colorful collection of rusty hillside houses.

They reached El Paso in a hazy, oppressive heat. Immaculate government buildings rose up in the city center. Because Rosi and her family had arrived early, they rested on a bench in the shade of trees planted along the building exterior. Elias fed Ana while Rosi called her mother and sister using WhatsApp video. Their faces appeared on the phone, smiling broadly. They encouraged her to remain faithful. Love sent a text, saying she was thinking of Rosi: “We are all praying to St. Jude.”

Soon Rosi and Elias went inside, made their way through security—the guards, who spoke Spanish and heard Rosi was headed to immigration court, wished her luck—and headed to the seventh floor. Before entering the courtroom, Rosi went to the bathroom. She freshened her makeup and inspected herself in the mirror. She wore a blue-and-yellow floral blouse, black trousers, and a dark blazer, her hair in a low ponytail.

“Do I look presentable for the judge?” she asked, her eyes wide, smoothing her shirt. “The uncertainty is killing me.” Suddenly, she wasn’t so sure she would win after all. 

After some time in the waiting room, Rosi was beckoned into the courtroom by a guard. Elias and I followed and sat on a bench in the back, with Ana asleep in her car seat. The gleaming courtroom was frigid and windowless. Rosi sat at the respondent’s table, an empty chair next to her where Love would have been. 

Judge Roepke, bespectacled, clad in a maroon robe, entered and took a seat at the high dais. The prosecutor, who would remain largely silent throughout the proceedings, worked at a laptop at his table. Rosi’s thick file sat before Roepke, detailing her story. She was from a good, poor, large, Christian family; they supported themselves as street vendors. One day, when Rosi was trying to help the family by selling food, gangsters threatened her with a gun and she fled. Her journey involved an unsavory coyote, hired with money sent over from relatives in America, who guided her across the continent, cajoling her for sex and mistreating her when she refused. She crossed the Rio Grande on a raft, fell victim to a scam, and was finally arrested when she tried to sneak past a checkpoint. She landed in a freezing mass holding cell in South Texas, where she survived on a ham sandwich a day and caught a cold before she was transferred to an ICE detention facility in Houston. There, she passed her Credible Fear Interview, a boilerplate questionnaire used to determine whether an undocumented immigrant has good reason to fear returning to her country, thus making her eligible for asylum. Eventually she was paroled out and made her way to Santa Fe, where she began to create a better future for herself. 

Roepke delivered a lengthy, deliberate, dispassionate questioning: Were you harmed? Why did you leave? Why do you fear returning? 

Rosi answered him politely: I was threatened, not harmed; I left because of the gangs; I fear returning because I am afraid of being murdered and tortured.

During their exchange, which lasted more than three hours, Roepke pointedly refused to make eye contact with Rosi, though he was never combative. He was formal, staid, and perked up only when Rosi spoke of selling empanadas on the street when she was assaulted. This reminded Roepke of how he loved empanadas. 

“A lot of people might not know what an empanada is,” he said, as Rosi testified that she had been robbed and threatened. He turned to the interpreter. “Would you say it’s a turnover?”

“It is a pastry,” the interpreter explained. “It can be sweet or have salty fillings.”

“And those are the best kind!” Roepke exclaimed. He smiled tightly, eyes still downcast.

Later, the prosecutor questioned Rosi briefly. “In Puerto Rico, where I come from, we call them empanaditas,” he said as an aside, shooting the judge a friendly glance. “But I know what you’re talking about.” Roepke chuckled.

As the hearing neared its end, the court took a short recess. Outside, in the waiting room, Elias prepared a bottle of milk for Ana, who was still asleep. 

“I’m terrified for my baby,” Rosi said, tapping her leg up and down. “If he says yes, I’m going to cry with joy.”

“Maybe you can ask for a new court date because you don’t have a lawyer?” Elias suggested. Rosi nodded, but they both knew it was too late to make such requests. 

At five minutes to four, the guard informed Rosi that Roepke was typically punctual, and ushered the family back into the courtroom. But in this particular instance, Roepke was late. No phones were allowed, and a thick stillness descended upon the cold room. After fifteen minutes, Roepke arrived.

“There was a crisis with an interpreter,” he explained graciously. “I openly apologize.”

He sat down, turned to the prosecutor, and asked him if he thought Rosi had a claim to protection. 

“Unfortunately, I do not,” the prosecutor said.

The judge turned to Rosi, still avoiding eye contact. “I do not think you’re a gang member,” he said. “I don’t think you ever were. I don’t think you care to cause trouble.” He removed his glasses. “I don’t find the evidence in this case establishes asylum.”

Rosi didn’t move.

“Do you have the funds available to pay for your own flight back to El Salvador?” he asked. 


“Then I can’t consider you for voluntary departure. Under the law, I have no alternative to deny your application, so I have to order your deportation to El Salvador.”

Elias, sitting in the back, put his head in his hands. Rosi would not be cuffed and kicked out that day; she had a month to appeal, to buy some time, or to disappear. Roepke walked over to her and handed her the appeals paperwork, urging her not to lose it. 

Gracias,” she said, taking the forms from his outstretched hand. 

“You should be able to get to Santa Fe before it gets dark,” the judge added, almost warmly. He still didn’t look at her. “Have a safe trip.”

Why should Rosi be allowed to stay in America? Like so many others, she didn’t have a terribly unique or compelling story, except to say that she was unlucky enough to have been born poor in a treacherous country. From a purely legal standpoint, it was true that Rosi didn’t have much of an argument for her right to settle in the US. But on an individual level, it was hard to see the point in sending Rosi back to El Salvador. Did a person only deserve entrance into America if he or she presented a unique or compelling case—if he or she was in some way special, or had been tortured for a particular reason, rather than harassed in a dreadful but sadly banal way? What was the purpose, exactly, of deporting Rosi? If one purpose was to punish her for her past transgression of crossing a river from one land mass to the other, was the purpose also to punish a very young American child by separating her from her mother? How much would it cost the government to first try to subsequently appeal Rosi’s case, and how much would it cost to hold her and then transport her back to El Salvador? If Rosi were successfully deported—picked up, say, in an ICE raid—how motivated would she be to find any way back to her husband and her daughter? What did Rosi—not as an abstract representative of immigrants, but as a concrete person—wrongly take from America, or from Americans?

On the way home from El Paso, Elias had to pull over to the side of the highway when a thunderstorm erupted. A policeman pulled up. Rosi and Elias grew nervous, looking for their IDs, making sure Ana was properly strapped in, but the policeman just wanted to check that everyone was okay.

Within an hour, the rain stopped. The sun broke through over the mountains. Rosi, who had been staring morosely at her phone, returned to her state of tenacious good cheer: She felt that the appearance of the sun was a sterling omen that her troubles, too, would pass. She would appeal the judge’s decision, she said. 

“He didn’t give me a fair chance to defend myself,” she said. “He should be in my shoes and give more consideration to the situation in El Salvador.”

In text messages, her mother encouraged her, positing that the appeal was a new opportunity for things to go her way. Rosi handed out apples and gave Ana a kiss and a cookie. Love called to offer her condolences.

“We’re in a negative side but we have to see the positive side,” Elias said. He gazed at the long, flat highway before him. He didn’t like preparing for the worst, as if just considering it could conjure it into being, but he began to formulate a plan, in case things didn’t go as he prayed. “And if not, we will sell the house and move to another place. We can buy some land and a trailer.” In the back seat, Rosi and Ana fell into a deep sleep.

The next day, Rosi returned to her job at the burger joint. That evening, I met her back at her house. The carpeted living room was spotless and spare but showed signs of striving toward a new kind of comfort: the flatscreen TV, the patterned throw pillow from Target, the neatly folded baby clothes, the air freshener. As a child, Rosi had never had a bed of her own, always sharing with her sisters, and Elias’s father hadn’t been able to pay his son’s school fees. Now they owned a home. Ana slept in her own crib.

Rosi, still in a shirt bearing the restaurant’s logo, knelt on the floor as Ana hung on her neck. “I didn’t expect that news yesterday,” she said.

“But Allegra told you to expect it many times,” I said. “Why was it a surprise?”

“Well, I contemplated the negative, but then—” she paused. “Then I stopped. Anyway, Elias is helping me, telling me there’s still hope.”

What was important now, she said, was the appeal, and she would go forward with it. “If they deny my appeal, I will get a report from the Salvadoran government and present that,” she said uncertainly. “The government will write me a letter. They are my compatriots. They can say I won’t be protected. I can demonstrate to the US government with that letter that I’m not safe in El Salvador.”

“But why do you think the US government cares?” I asked.

She slumped. “I don’t really know,” she said. Then she sat up straight. “I think that if the Salvadoran government wrote a letter to the American government? Maybe if I can get a form from the president? Maybe if I have a letter, maybe they can let me in?” She grabbed her daughter, who had been inspecting a doorknob, pulled her onto her lap, and fixed me with a stare. “You know so much about me, can I ask you a question?”

“Of course.”

“You know my story. You know my case. You know my past. You know my family. You know my baby. And you are an American citizen. When you see me, do you see a person who can stay in the country? Or do you see a person who should go back to El Salvador where they can kill me?”

“Well, I want you to stay—” I began, but before I could finish, she had fallen back and was thanking God, as if my desire would manifest her reality.

By August, Rosi had hired a new lawyer in El Paso, who submitted her appeal forms. The process would further burden the impeded immigration system and extend Rosi’s time in the country. She had kicked the can down the road, but she maintained that there was always the possibility of another election, a loophole, a marvelous judge—something unforeseen, unpredictable, a blessing.

“She has the right to appeal and she’s taking it, but when people talk about asylum seekers being a drain on the system, this is a good example,” said Love. “It’s a bad tool for helping a woman in her position, because not only does it not help her ultimately, but it also puts a strain on taxpayers.”

“The system can create perverse incentives,” said Washington and Lee’s David Baluarte. “Some of our laws are violations of fundamental human principals I believe in. So, is family unity more important or the law we have now? Sometimes it’s a strategy, to just work this as long as possible, and get as many appeals and as many arguments and as many reopenings as you can.” 

Rosi claimed she wasn’t using any particular strategy, that she only wanted to keep herself and her daughter safe for as long as possible. Perhaps she was quietly banking on some larger policy change, or the opening of a legal loophole in the future. After all, before the Trump administration had issued its February 2017 memo, she could have found relief through Prosecutorial Discretion. Maybe the political winds would shift back in her favor.

This past October, Love received by mail a new two-year work permit for Rosi. Love had filed for a renewal back in the summer; Rosi had qualified because she had not yet received her deportation order when the application was sent. The bureaucratic machinery had continued to grind on, and the permit, which would remain valid as her appeal was pending, came just before Rosi’s prior permit was set to expire. Rosi flew into Love’s office with Ana that day to collect the permit, beaming and wrapping her arms around Love.

“I’m not her asylum lawyer anymore, but I’m still her lawyer for her work stuff,” Love told me afterward. “I think I’m still her lawyer in her heart.”

According to Love, these renewals often came in the nick of time; it was just how the system spit them out. For Rosi, it was another sign that her adopted country would eventually welcome her, that God would show his grace. She would probably lose her appeal, and the work permit had no bearing on her asylum case. But Rosi didn’t see it that way.

Un milagro,” she exclaimed—a miracle. She’d known it all along: She’d be able to stay. For now.

This article was funded in part by a Reporting Grant for Women’s Stories from the International Women’s Media Foundation.


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