Hiding in Austin, a former El Salvador policeman seeks asylum

AUSTIN — He talks about the cases with an odd fondness in his voice, as if he were recalling treasured memories. 

There was the middle-aged woman and her adolescent daughter found dead at home, the mother’s broken fingernail the only sign of struggle. Thankfully, the scratch led to a single drop of blood that happened to match the suspect’s.

Then there was the Mara Salvatrucha (MS-13) gang member he arrested who broke out of handcuffs during a scuffle and nearly got hold of his service revolver. Luckily, his partner at the National Civil Police subdued the gang banger.

Of course he could never forget that dismemberment case. The investigation began with a report of gunshots, leading to an abandoned motorcycle and a trail of blood ending at a hastily dug grave. Buried there was a young man who had been shot down, and — as custom and quick burials often demand — cut into pieces.

Seeing the body hacked up like an unsolved jigsaw puzzle shocked the otherwise hard-boiled Salvadoran detective. It still shocks him when he thinks about it.

“He was a human being,” the officer said. “It impacts you to see that level of criminality.”

For 17 years he fought El Salvador's notorious gangs, until he came to fear for his own life and that of his family. In 2015, they joined a flood of tens of thousands of Central American immigrants who crossed the Rio Grande into Texas and turned themselves in to authorities.

Now, he’s trying to convince the United States to grant him political asylum, arguing that his former job in law enforcement makes it unsafe for him to go home.

Roberto's father, a fisherman, was killed when he was three, during El Salvador's 12-year civil war. He became a detective in 1998 and had every reason to believe he would retire from the Policia Nacional Civil — the National Civil Police of El Salvador. But as security deteriorated in El Salvador in recent years, he decided to join the masses fleeing north.

Roberto’s asylum-seeking adventure began in May of last year, when he sold his car to reach the $12,000 — some of it already donated by family members — that he needed to pay a smuggler to ferry him, his wife and their two daughters to Texas. It took him almost a month to make the journey, staying in safe houses and hotels, relying on the smugglers that bribed their way north with other migrants.

“They control everything along the route you take. That’s why you pay them a certain sum of money,” he said. “To ensure you don’t get sent back or lose all your money.”

The name of the first U.S. town he encountered still rolls uneasily off his tongue, sounding more like "McAlley" than McAllen. The largest city in Hidalgo County is one of the favored destinations of Central American migrants. When they reached the Texas side of the Rio Grande, Roberto and his family didn’t hide or flee from the U.S. Border Patrol. They sought out people in uniform so they could turn themselves in.

It's a common approach for Central American migrants, often families traveling together or unaccompanied minors who are treated differently, and generally more leniently, under U.S. immigration law.

Roberto spent three days in detention in South Texas. He and his family members were given federal Alien Registration numbers and a “notice to appear” in immigration court. They rested up at a Catholic Charities center catering to migrants and soon made their way to the Austin branch of American Gateways, a nonprofit group that provides assistance for immigrants navigating the country’s complex immigration system, including asylum seekers like Roberto.

“This case stood out to me because rarely do you see an entire intact family present at our office together, and I believe this was the first time I had seen a member of the El Salvador National Police appear in our office,” said Bobby Painter, director of American Gateways in Austin. “That stuck out to me as a potentially interesting case.”

Painter successfully referred Roberto’s case to the Norton Rose Fulbright law firm, which is handling it pro bono.

Asylum hard to get

There’s no question that police work can be hazardous in El Salvador, where warring gangs with deep U.S. ties last year gave the country of 6.3 million people the title of murder capital of the world. Among the dead in 2015 were 62 police officers; at least 24 have died in violent circumstances so far this year, according to recent national police figures.

To be granted asylum in the United States, people have to prove they have a well-founded fear of being persecuted or killed if forced to return to their home country. 

Not matter how dangerous the job, though, just being a former police officer doesn't necessarily cut it. Experts and legal precedents indicate that immigration courts place a high burden of proof on police, presuming they knew the hazards when they took the jobs. 

 “We’d probably have an easier time getting him asylum if he was a former gang member,” said James Hughes, one of Roberto’s two attorneys at Norton Rose Fulbright. He’s not joking: gang tattoos are harder to remove than a police uniform, making membership in the “former gangbanger” social group potentially more concrete and immutable than ex-cop.

“It’s kind of a perverse set of incentives the courts have created,” Hughes said.

Regardless, it’s a steep climb: Relatively few cases are being approved amid skyrocketing asylum claims from Central America — Roberto’s violence-torn country in particular. The number of claims filed with the courts by Salvadorans has more than tripled in the past five fiscal years, rising from 2,900 in 2011 to more than 10,000 last year. Over that period far more cases were abandoned, withdrawn or disposed of without an immigration judge reaching a decision on the claim. 

Of the cases heard by a judge, the average rate for granting Salvadoran asylum claims over the five-year period was about 13 percent. By comparison, the courts granted asylum to 78 percent of Chinese applicants over the same period.  

Asylum is granted based on fears of persecution because of “race, religion, nationality, membership in a particular social group, or political opinion.” 

Lots of ink has been spilled trying to define what a “particular social group” means.

Roberto’s claim is based on the leading role he says he played in an anti-gang operation in his home region several years ago, in which more than three dozen gang members were arrested, helping authorities dismantle a local clique of the MS-13 gang.

Some have since gotten out of prison, and Roberto said gang members began stalking him and tracking his movements. He reported his concerns to El Salvador’s attorney general’s office but says he was ignored. He also tried twice to get visas to come to the United States. They were turned down.

“A lot of police officers were getting killed by the gangs and, well, nobody said anything,” Roberto said in a lengthy interview. “Sooner or later, they were going to take reprisals against my family. If they don’t get the one they’re after they will kill his kids, kill his wife, his mother, his father, his brother, just anyone in his family to inflict pain.”

It wasn’t easy to leave everything behind. He’d worked and studied hard to become a police investigator. He liked his job, even though it only paid $450 a month — not including the side gig in retail sales — which forced him to live in the same run-down neighborhoods the gangs control. All things being equal, he preferred to stay.

“But if the family is in danger, the family comes first and the job second,” he said.

Police face inherent dangers

Roberto and his lawyers went to immigration court in downtown San Antonio in April to argue that his “particular social group” consisted of former police officers whose work had targeted gang members.

His lawyers presented detailed evidence — including testimony from a former police informant and an ex-prosecutor — about Roberto's role in the specific investigation they say jeopardized his life. They also had a letter from a co-worker who said he’d overheard gang members discussing plans to kill Roberto.

The judge quibbled little with the facts as presented, his lawyers say. But in an opinion delivered a month later, and almost a year after Roberto crossed into Texas, the judge turned him down, citing a 1980s-era case involving a Salvadoran police officer named Fuentes who was denied asylum on the grounds that his employment was inherently dangerous.

“As policemen around the world have found, they are often attacked either because they are (or are viewed as) extensions of the government’s military forces or simply because they are highly visible embodiments of the power of the state,” the opinion stated. “Such dangers are perils arising from the nature of their employment and domestic unrest.”

The next step will be appealing the ruling to the Board of Immigration Appeals in Falls Church, Virginia. His lawyers are also applying for “withholding from deportation” — a higher standard to meet than asylum — as a sort of Hail Mary backup plan. The case will likely drag on for months, possibly years.

In the meantime, they’re asking the courts to provide Roberto a work permit so he can come out of the shadows of the vast informal economy. For now, he's found work as a painter on an Austin construction crew, while his young children are attending public school.

For the moment, Roberto doesn’t to have to worry about his kids being recruited into the gang. He doesn’t have to carry a gun night and day. Doesn’t have to worry about getting killed for what he did to keep the neighborhoods of his hometown safe.

“Many of my colleagues are dead. They were killed. Others — the ones who could leave — have come here, to the United States, or Spain or Canada,” he said. “You have to see where one will extend a hand, as they say, to get out. Those who can’t get out, well, they have to confront the violence very day.”

Hughes, the Austin lawyer preparing Roberto’s appeal, said so far in the case he feels like he’s up against a “robotic deportation machine” that makes it impossible for many people who are running for their lives to win their asylum cases.

And it frustrates him that amid all the outrage over illegal immigration — as witnessed in these final days of the 2016 presidential race — it’s still so hard for worthy applicants to enter and remain in the country legally.

“I feel like we’ve got here someone who is honest and hardworking and wanted to obey the law and wanted to uphold the law in his own country, and was driven from his home,” Hughes said. “It seems to me he is precisely the type of person there ought to be some door or window for. There isn’t.”

Texas Tribune reporter Julián Aguilar and investigative fellow Andy East contributed to this story.

This story is part of The Texas Tribune's yearlong Bordering on Insecurity project.