HIV Positive Woman Wins Asylum, Can Now Bring Over Deported Daughter

Ana Batiz woke up at 5 in the morning on Tuesday to travel from Far Rockaway to an immigration courtroom in Lower Manhattan. She’d been waiting about a year to find out if she was eligible for asylum. It took Immigration Judge James McCarthy less than 15 minutes to decide her fate.

“Welcome to the United States,” McCarthy said to Batiz and her teenage daughter, Kirad, who broke out into broad smiles. “Good luck to you in the future.”

Listen to Beth Fertig’s reporting on WNYC:

In the summer of 2018, Batiz, now 44, crossed the U.S. border with Kirad and another daughter, Susan. As WNYC reported, Batiz and Susan were seeking asylum on the grounds that they’d been persecuted for having HIV. Batiz was an advocate for HIV positive people, and said she was often called terrible names and threatened because of her status. Susan claimed she was beaten at school by classmates who even pushed her head into a filthy toilet.

But Susan was separated from her mother at the Texas border because, at age 18, she was considered an adult by Customs and Border Protection. (Even though she’s still considered a dependant of her mother until age 21 by a different agency, U.S. Citizenship and Immigration Services). Being separated meant they saw different asylum officers. The day after their arrival, Batiz was allowed to enter the U.S. and seek asylum after passing a credible fear test. She and Kirad went to join family in New York City. But Susan was taken to an adult detention center where she failed the same credible fear test a few weeks later. She was then deported back to Honduras.

Her mother’s win in immigration court means Susan now has a way to come back to the U.S., because Batiz is applying for her to come as a dependant child who’s still under 21. 

“I’m very happy because very soon my other daughter will be here with me and that’s really exciting,” Batiz said, as she left the Federal Plaza hugging Kirad and their lawyer, Cristina Velez of Queens Legal Services.

“I felt such a strong emotion because I thought [the judge] was going to ask more questions of me and my mom,” said Kirad, as she giggled with relief and danced on the sidewalk.  

The Trump administration has made it harder for migrants to win asylum. Tens of thousands have been turned away at the border and forced to wait in Mexico for immigration court hearings. And immigration judges, who work for the Justice Department, have been ordered to apply a much narrower interpretation of asylum to those fleeing gangs and domestic violence in Central America. Less than 30 percent of all asylum seekers now win in immigration court, according to TRAC at Syracuse University.

But Velez said Batiz’s case was different because she was doubly discriminated against, for being an advocate for people with HIV, and for being a member of the black Garifuna community in Honduras. 

“She fits into a part of the asylum definition that makes this a more straightforward case,” Velez  explained, referring to people persecuted for their political opinion, or for being members of a particular social group.

Still, Velez was surprised by the swiftness of Tuesday’s hearing. She had prepped Batiz to answer questions from the judge and government trial attorney, Nancy Torrellas, who works for Immigration and Customs Enforcement. But when they got to court, Torrellas said she agreed to settle the case because Batiz had met the burden for proving asylum. The judge consented, and said he wished more cases were like this.

Velez suggested Batiz’s case might have been strengthened by additional medical evidence she submitted recently. A doctor had determined that Batiz was forcibly sterilized after her last child, Kirad, was born — something that’s known to happen to HIV positive Garifuna women in Honduras.

Ava Benach, an immigration lawyer in Washington, D.C., said forcible sterilization is “a very extreme form of persecution and violence.”

She also said it’s not unheard of for government lawyers to support granting someone asylum at their immigration court hearing. “It does happen,” she explained. “It happens in cases where the persecution is well known. If you can imagine, gay people from Iran, transgender immigrants from much of Central America and the Middle East. Obvious political opponents in China.”

But she said this type of prosecutorial discretion is much rarer now because of the Trump administration’s hardline approach to immigration cases. 

The fact that Batiz won her asylum case so easily troubles Velez, because of what it says about Susan’s deportation. The young woman had a similar claim of HIV persecution but failed the credible fear test given by an asylum officer at the border. Velez says this may have something to do with the pressure these officers are under now to deny asylum.

“What we’re seeing with Susan versus Ana is the outcome of that pressure, I think, and the outcome is inconsistent adjudications,” she said.

Susan tried to get an immigration judge to overturn the results of her credible fear interview last year, but lost. The transcript hinted at the reason: at one point in the interview, Susan said a police officer in Honduras had helped her.

Velez hopes Susan can come to New York within a year now that her mother has won asylum. Batiz and Kirad called Susan from the street after court to share the good news.

“It all worked out,” Batiz told her daughter in Spanish. “Didn’t I tell you to be confident, right?”

“Yes mami,” said Susan, her face beaming on the screen of the cell phone from her grandfather’s home in Honduras.

“Soon I’m going to give you such a good hug,” Batiz told her. 

The asylum trial was originally scheduled for the end of 2021, but Velez persuaded the judge to hear it sooner. This past year has been miserable for Batiz, who worried constantly about Susan’s health and whether the HIV medications were doing their job. Susan is extremely thin and has complained of different aches and pains. She’s also terrified to leave her family’s house.  

“Recently I had to do a big effort to send her money for a medication that she needed urgently,” said Batiz.

She has high hopes for Susan once she arrives in New York. She’s planning on leaving her sister’s apartment in Far Rockaway and moving to a two-bedroom apartment in the Bronx where Kirad and Susan can share a room again, just as they did in Honduras. Batiz qualifies for state housing assistance because of her HIV status. She will also get work authorization soon, and hopes to go back to school. She’d like to work as a pharmacist’s technician, because of her interest in health, and she also wants to return to advocating for women with HIV.

“What I have in mind is like a transnational community and I’m sure I can find allies that can help me in Honduras,” she said, dreaming big. “I would be like a godmother for them.”

But for now, she just wants her daughter Susan back: “This past year has been really tough because Susan has gone through a lot of things and I haven’t been there for her.”

Lidia Tapia-Hernández contributed translation for this article.

Beth Fertig is a senior reporter covering courts and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.