One August morning in 2017, I walk up the staircase to Yoli’s apartment in the North Bronx, the steps creaking beneath me, as I have for the prior three days, not knowing what to expect. Yoli opens the door and smiles, her natural warmth radiating, and my breath catches.
“No,” I blurt out. “You can’t wear that. You have to change,” I say in Spanish.
Beneath her swollen belly, its half-moon covered by an emerald green tank top, Yoli wears deconstructed jeans, which, though on trend, are of the particularly torn variety, with 20 designer rips per leg. Yoli and I stand eye to eye, both at 5 feet tall, her pregnant belly between us. Her red-tinted hair grazes her shoulders. Yoli, in her raspy voice, responds in Spanish, deflated, “But I don’t have anything else to wear.”
“Well, you can’t wear that to court,” I say, my voice lowering an octave. Having worked with abused women for the past 10 years, I know it is wrong to tell her what to wear, and to do it so brazenly. Yoli, a woman who left Honduras to escape her son’s father, does not need someone telling her what to do. She does not need someone telling her how to look, judging her appearance, failing to acknowledge her choices. But the thought of the judge peering down at Yoli from his perch above us, and the weight of our task, to convince him to give Yoli asylum, bears down heavily on me. (Yoli has given me permission to share the details of her story, but I have changed her name, her son’s name, and her abuser’s name, for her protection.)
“What should I wear?” she asks.
“How about a skirt?” I offer.
Yoli laughs her endearing laugh. Not loud, but soft and short, as she covers her mouth to block the little puff of air that comes out with it.
“How about a dress, then?” I ask, recalling the long, flowing summer dresses she’d worn that week. The ones that spread into a corona about her as she sat on the foot of her bed while Matt, a law student intern, and I pretended we were in a New York City immigration courtroom, practicing her direct examination. As we asked her question after question, Yoli, her honey-colored arm resting behind her on the duvet, faced me and Matt on our folding chairs pulled up close, while I struggled to understand her Spanish over the whir of a fan, tapping out notes on my computer, eager to make legal order of her narrative.
While I have been working with immigrant survivors of intimate partner violence for over 10 years, representing Central American women in their asylum cases in immigration court is still a relatively new space for me — and one that scares me, given the stakes. I’ve represented women in their requests for orders of protection, custody of their children, child support, and the myriad immigration relief options available under the Violence Against Women Act. The sharp rise in women and children fleeing unbelievable violence in Honduras — many of them end up in the Bronx after being processed in Texas — means that my colleagues and I have all had to step up our practices to meet the demand. It is harrowing work, and I don’t always feel equal to the task. But that representation is crucial, because 90% of those who are unrepresented in immigration court are denied asylum, in contrast to the 48% who are denied with legal representation.
As we debate her clothing options, Yoli’s son, Jose, toddles out and wraps his chubby arms around his mother’s leg, poking his little fingers through the holes in her jeans and twirling the white threads hanging down. Wearing a diaper and a T-shirt, his favorite outfit, Jose looks up at me, wielding a large silver spoon over his mouth and chin.
“Hi Jose. How are you today?” I ask. He smiles, his dimples showing no trace of the nightmares that woke him in black night, screaming, “Pa, no! Pa, no!” Jose is 3 years old and has never spoken any words but these. The first time I met Jose, he tore my office apart, running up and down the hallways, throwing toy trains and crayons. When I saw him at home, he was calm, responsive, and though his heart-shaped mouth remained closed, he communicated with his round, bright eyes, focused on whoever spoke to him.
“OK, wait here,” says Yoli, and she disappears into her friend’s room, in search of a change of clothes.
I am anxious. I packed my bag that morning with snacks, drinks, sticky notes, and highlighters, prepared for any eventuality. But I fear that what I need is not in my bag. Nor in the days of preparation, the hours of trainings, or the years of law school. I have to find a way to fade into the background and allow Yoli to fill the courtroom, to relay the images she shared with me and Matt, and to ensure that she does so in a way that fits within the confines of asylum law. She has to be credible, internally consistent, and fortified against attacks by the government. I have to be invisible, and Yoli has to be everything.
Yoli scrambles from room to room, clutching multicolor-print pants, passing me in the hallway. As I wait for her to reemerge, I look around the entryway. Around a light switch on the wall is an ornamental plate shaped like a piece of parchment paper with an eagle at the top, astride a shield of stars and stripes. Beneath the eagle, it reads:
“Freedom is the right to choose: the right to create for oneself the alternatives of choice. Without the possibility of choice, and the exercise of choice, a man is not a man but a member, an instrument, a thing.” —Thomas Jefferson
Rich that this man who owned slaves, who kept Sally Hemings until her death, should wax on about choice. But the words strike me where I stand. Yoli had chosen. She had chosen to sell her and Daniel’s stove, refrigerator, and television. She had chosen to use the money to buy a bus ticket from Honduras to Guatemala. She had chosen to work in restaurants in Guatemala and Mexico, with Jose on her hip, to pay her way to Hidalgo, Texas, where she presented herself to a Customs and Border Protection agent and sought asylum. Yoli had chosen to leave the man who had beaten her so severely that she couldn’t walk for two days.
Yoli emerges from her bedroom, wearing her friend’s too-long pants, rolled at the waist, and a long-sleeve shirt. She looks at me, eager for my approval.
“Better,” I say, and Yoli’s shoulders relax.
“Have you eaten breakfast?” I ask, moving on in my mental to-do list. My approval allows Yoli to move on as well.
“No. I’m too nauseous. I’ll eat something later,” she says, packing her bag. Yoli tousles Jose’s short hair as he nestles up to her.
“Have you taken your pill?” I ask, echoing her friend’s question the day before, trying to match her soft tone.
“Yes,” she says. Good. One less thing to worry about. Yoli has been fainting due to preeclampsia — high blood pressure brought on by pregnancy. The last time she traveled to my office, she fainted on the Bx19 bus. I worry that if she faints today, she won’t get another court date for years. She has four months to go to her due date, and no one to watch Jose if she’s hospitalized. The friend she lives with has a new baby and can’t take on Jose as well. I worry about Jose ending up in foster care.
“OK, are you ready?” I ask, talking to myself as much as her.
Yoli inhales deeply, her hand resting on Jose’s shoulder, and picks up her bag. “Yes,” she says.
“Let’s go,” I say, and we head downstairs to where a Lyft driver is waiting for us.
“Abogada, will I have to go back to court after today?” Yoli asks in the car, her brow creased.
“I hope not.”
“What will happen today?” I’ve answered this question before, but its repetition calms us both.
“As we’ve discussed, you’ll tell your story to the judge, and hopefully, the judge will issue a decision today,” I say, hoping that my saying so will make it happen.
We arrive at 26 Federal Plaza, the behemoth building across from the New York Supreme Court famous for its weathered marble staircase, sometimes featured in Law and Order. With dozens of other participants in the US immigration system, we pass through the big white security tent, open our bags, take off our belts, and go through the metal detectors. Rows of New York City’s immigrants collect their watches, wallets, and phones from gray bins lined up on folding tables along the back. The faces of grandfathers and preschoolers all point toward the same revolving doors that separate the tent from the arbiters of legal status.
We arrive two hours early, an ambitious lead to get settled and practice our direct examination. We ride the elevator up to the seventh-floor café, grab a few more snacks, and run through the questions again.
The small details of Yoli’s stories shift as we practice, as they have over the past three days, making me anxious about cross-examination. Shifting memories are a common hallmark of anyone who has suffered trauma. Trauma and memory do not work well together. Yoli can remember the major events of her relationship with Daniel, and his vicious brother Pedro, both gang members, but the order of those moments slips from our fingers when we try to hold it together.
“Why did Pedro hold a gun to your head?” I ask in Spanish.
“Because I refused to cook for him and his pandilleros,” Yoli replies. The answer occasionally swaps places with “Because I refused to cut his hair.”
“And how old was Jose when Pedro held the gun to your head?”
“He was 2 years old.” Sometimes Jose is 6 months old.
“And what happened after Pedro held the gun to your head?” lowering my voice, my eyes on the immigration officers eating tuna sandwiches at nearby tables.
“He shot at my feet, about 10 times.”
“And where was Jose when he was shooting?” I ask, fortifying myself.
“Pedro was holding him,” she says plaintively.
This answer never changes. The image ran through my head all week, haunting me in bed. Pedro was holding Jose while shooting at his mother’s feet. Because she refused to cook for him. Or cut his hair. She remembered her resistance, and she remembered the terrifying reaction. The other details didn’t matter as much as these.
We finish our prep and ride the elevator to the 14th floor. We sit outside the courtroom and wait for the judge to take the bench. He is a new judge, recently hired in the wake of the growing backlog of cases clogging the courts. So many more people receive notices to appear in immigration court since the election, and so many fewer cases can be resolved by reaching an agreement with the government. Many of New York’s immigration judges are dispatched to the southern border to more quickly remove recent immigrants, many of whom come from Honduras and El Salvador. Unlike the majority of her countrywomen, Yoli received her individual hearing date within less than a year of her arrival — an anomaly in a system that often requires people to wait three to five years for an opportunity to testify before someone with power to grant asylum. Unlike many children, Jose has not spent the past year waiting for the hearing date in a detention center or separated from his mother.
Yoli swallows a Ritz cracker and gulps down some water, and we watch other cases before a judge in a nearby courtroom: a Honduran boy seeking Special Immigrant Juvenile status, a Venezuelan teenager petitioning for asylum on the basis of his sexual orientation. To win asylum, a person has to show that they have a well-founded fear of future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. The teenager, for example, has to show that he was beaten or threatened or otherwise persecuted in Venezuela for being gay, or that he has a well-founded fear of being persecuted. He will also have to show that the Venezuelan government persecuted him or that they failed to protect him from his tormentors.
Asylum law is based upon a delicate and shifting rubric of cases, known as case law, involving specific factual scenarios before tribunals of people who went to law school, who presumably vote in elections, and who have their own experiences informing their perspective of the world and the law. Case law shifts shape like memory, ephemeral and unreliable. Yoli’s application for asylum hinges on a case known as Matter of A-R-C-G-, in which another tribunal — the Board of Immigration Appeals — ruled in 2014 that “married women who are unable to leave their relationships” qualified as a particular social group. This ruling, for a Guatemalan woman who had been burned and beaten, enabled women harmed by intimate partner violence and unprotected by their governments to win asylum in the United States, and it was a critical tool for legal advocates. On June 11, 2018 — a few months after I ascend Yoli’s staircase — Attorney General Jeff Sessions will undermine that decision, asserting that victims of "private" crimes like domestic abuse should not be eligible for asylum.
People in immigration court are called respondents, and they are called by their “A number” — a unique identifier assigned to anyone noticed to appear in immigration court. Hanging above us to the left of the door, a docket sheet is posted, listing the A numbers of the day’s respondents, accompanied by abbreviations: HN, HN, ES, HN, BF, VN.
Honduras. Honduras. El Salvador. Honduras. Burkina Faso. Venezuela. So many Bronx residents come from these countries. I wonder who is representing the people on the list, knowing that many of them will be unrepresented today and in court dates to come, without money to pay for a lawyer and not enough free lawyers to go around.
The Immigration and Customs Enforcement attorney arrives, a young blond woman in a crisp red skirt suit and glossy heels. She plugs a keycard into her laptop and opens Yoli’s case file. I called her yesterday, asking if she had reviewed Yoli’s file (she hadn’t) and if there was any additional information we could provide (she would let us know). Her clear tone on the phone gave me a lifeline to grab onto, as if I were just catching up with an old acquaintance, neither hostile nor overly friendly, who might listen to what we had to say.
The interpreter walks in next, a Honduran woman whom I instantly recognize. The year before, she’d interpreted for a brutal hearing involving Anna, a Honduran woman who had fled her husband with their young daughter. I watched the ICE attorney relentlessly cross-examine Anna, who melted into a puddle of tears, for three straight hours. The immigration judge stopped the cross-examination four times to give Anna, who had been diagnosed with PTSD and was close to hyperventilating, an opportunity to slow her breathing. The ICE attorney grilled her relentlessly: “You said he tried to drown you while you were four months pregnant; how big of a pool of water did he try to drown you in?” and “How many times did he punch you in the face?” and “Why would he threaten to kill you if you are the mother of his child?” After that day, Anna’s trial was adjourned for years because the ICE attorney filed multiple briefs to block the testimony of the psychologist who had diagnosed her PTSD. Anna’s immigration judge was transferred to the border, with no replacement judge appointed. The case continues to languish.
I lean over and whisper to Yoli, whose thin arms cradle her belly, “The interpreter is Honduran,” something the interpreter had shared in the elevator after our day together at Anna’s trial. Yoli nods but continues to look straight ahead. I try to slow my breathing, thinking the interpreter might better understand her. During our prep sessions, small nuances in word choices had meant that it took a while for me and Matt, whose Spanish was marginally better than mine, to realize that she was telling us that Daniel had beaten her with a baseball bat.
I hesitate to approach the ICE attorney. The person I had spoken to on the phone felt far away, replaced by this cooler doppelgänger. After January 20, 2017, what had been a gate — sometimes open to those who made the right arguments, who had the right key — became an impenetrable fortress, with ICE on one side and immigrants and advocates on the other. Before, there were open lines of communication, prosecutorial discretion requests granted, orders of supervision — there was a person to talk to who could make a decision, based on a range of memos recently discarded or overridden. Obama earned the nickname “Deporter in Chief” for a reason — his administration deported more people than all the previous administrations combined — but he created DACA and DAPA, and oversaw the issuance of dozens of memos that made a real, lasting effect on the lives of people passing through immigration court every day. Those times are gone.
The judge walks in and takes his seat. A former ICE attorney, this is his second official day on the bench. He is older than expected, with sandy gray hair that reminds me of the other ICE attorney who reduced Anna to tears. He could have kids too, I think, or he could be married to an immigrant. Maybe he wants to do a good job in his first week as a judge — whatever that means. Maybe he is keenly aware of the power he wields. So often, judges who have sat on the bench for many years suffer from the same burnout as lawyers. Their sensitivities callous over, making it easier to hear story after story of atrocity and torture, the images losing their necessary impact over the years. Perhaps his transition from attorney to judge will return him to an earlier version of himself, open to the story Yoli is about to tell.
We approach the table to the right and take our seats. The interpreter sits between me and Yoli. The judge swears her in and asks if I will be speaking for her.
“I think we are both going to speak,” Yoli replies.
We begin our direct examination. Yoli’s answers come out smoothly, the shape of the narrative holding firm. She delivers her answers to the judge, the pleasant scratch of her voice rising and falling. She waits for each question and answers slowly, methodically. The judge interrupts several times:
“What do you mean when you say he beat you?”
“Did you ever tell your brothers that Daniel was beating you? Why not?”
“Why couldn’t you leave Daniel?”
With each interruption, Yoli considers the judge’s question and explains:
“He pulled out my hair, punching me in the head while I was sleeping.”
“Because my brothers are younger than me and I knew Daniel and Pedro would kill them. I was trying to protect them.”
“Because Daniel would kill me and Jose if I tried to separate from him in Honduras.”
When Yoli tells the judge that Daniel cut her finger with his machete when she would not make him lunch, she holds up her left finger. The judge leans over the bench to get a better look.
“Can I show you?” Yoli asks, and she rises, careful not to bump her belly on the table, and walks over to the bench. The judge takes off his glasses, leans over, and examines the scar that snakes around Yoli’s finger, with five serrated bumps, one for each of the stitches she received at the local Red Cross office.
“Let the record reflect that the respondent has a diagonal scar stretching across her left index finger,” the judge says soberly.
Yoli returns to her seat.
“Did anything happen after you left Honduras?” I ask, drawing to a close after an hour of testimony.
“I asked my friend, Marta, whether my family could stay with her. Daniel had been threatening to kill them after I left. Marta agreed. A few days later, Marta was hosting a birthday party and my mom was supposed to cook, but when someone warned me that Daniel knew she was there, I sent my mother to stay somewhere else. Daniel and Pedro went to the birthday party and killed Marta, her husband, and three other people.” Yoli’s eyes fill with tears and my arm hair prickles.
Two months before, as I walked down Lexington Avenue to take my son to the pediatrician, I unlocked my phone to check my work messages, a poor multitasking habit of working mothers, and saw a message from Yoli. I opened it and saw photos of Marta, lying dead on a coroner’s table, lying dead at a birthday party, draped with a red and white plastic table cloth, on a floor strewn with party hats, trays of food, and other fallen bodies. The sight of the body slammed hard against me, rooting deep inside, in the folds of memory that unfurl in the late hours, waking me from sleep. I locked my phone and squeezed my eyes shut.
“Was that the young woman in the photos you submitted?” the judge asks, revealing that he had read at least some of our evidence packet — over 300 pages of supporting documents, country condition research, and photos of a dead friend.
“Yes,” Yoli sniffles, holding herself upright as her role in her friend’s death presses down. Her tears fall. The knowledge of what Yoli’s fate would be should Daniel find her, pregnant by another man, floods the courtroom. No doubting what he would do.
The judge leans back in his leather chair, no longer taking notes, no longer watching Yoli, no longer primed with his next question. He peers ahead, his mind elsewhere, wrapping itself around the images playing themselves out in his head. I’ve seen that look before and know that Yoli has accomplished what she set out to. It is a look judges get when they know what they are going to do.
The testimony ends, the ICE attorney defers to the court, asking a few short, perfunctory questions, and the judge immediately grants Yoli asylum. A torrent of tears. I lean down to Yoli, giving her a hug. Yoli looks up, her cheeks rosy and glistening, and asks, “What does this mean?”
“It means you won,” I say, knowing that she already knows this, but wants it confirmed. Yoli purses her lips, nods, and releases her breath. She comes to her feet and we walk out of the courtroom. After we pass through the revolving doors, I escort Yoli to a car waiting to take her back to the Bronx, up the same staircase we descended that morning.
On the corner of Worth and Broadway, the terror of the past week loosens its grip and morphs into another shape — a blend of pride and awe, at all of the steps Yoli took to show that she would not be a member, an instrument, a thing. That she would choose her own path to freedom. ●
Terry Lawson directs the Family and Immigration Unit of Bronx Legal Services, the Bronx program of Legal Services NYC, and has been representing survivors of intimate violence in family and immigration matters for over 10 years. She cofounded the Bronx Immigration Partnership and coleads the Bronx Domestic Violence Roundtable. Terry is an active member of the New York State Advisory Council on Immigration Issues in Family Court, Immigrant-ARC, the ICE out of Courts Coalition, and the Lawyers Committee Against Domestic Violence. Terry is working on a memoir of her experiences as a family and immigration lawyer over the past decade. She is a graduate of Yale College, Georgetown University Law Center, and the Harvard Kennedy School.