Insane asylum

Teresa Xuncax, dressed in bright Guatemalan fabrics and layers of white lace, sat backed up against her large sewing table in her South Sacramento dining room. In a calm, quiet voice, she told the story of how she and three of her children fled marauding Guatemalan soldiers in 1982 and later crossed illegally into the United States.

She had told the story before—to other journalists, to attorneys and to immigration officers—and she was tired of telling it. After so many years, some of the details had lost their meaning, blurred or been forgotten. Sometimes her story varied from past versions, but only in small details: her daughter was either 8 or 10 days old when they fled. Her husband was either interned in a local church or a local schoolhouse before he was murdered.

The only time Xuncax’s voice rose in frustration was when she discussed her pending political-asylum claim. She’s been waiting for the Immigration and Naturalization Service (INS) to accept or deny her asylum, based on her family’s history in Guatemala, since 1989.

Lawyers at the Immigration Law Clinic at the University of California, Davis, don’t understand the delay, but since nothing else is working, they’re now soliciting the help of senators and members of Congress.

A detailed version of Xuncax’s story has been preserved in a declaration she made to the U.S. District Court of Massachusetts in 1995. Unrelated to her asylum claim, the declaration was used to successfully sue General Hector Gramajo, who’d been vice chief of staff and director of army general staff, as well as minister of defense, during Guatemala’s civil war.

Throughout the war, the Guatemalan government, with the help of the military, killed many Mayan villagers in an effort to squelch powerful left-wing guerrilla forces. Guatemala’s civil war lasted 36 years, and ended in a peace agreement in 1996. “In the other room we could see the soldiers tear off my husband’s clothes and tie his hands behind his back,” Xuncax’s declaration read. “They covered his head with a mask with holes cut out for the eyes. They kicked him and hit him with their guns. … They made [my husband] Felipe walk naked down the middle of the village with 22 other captured Kanjobal [indigenous Mayan] men.”

The government soldiers and the guerrillas that opposed them all dressed the same, Xuncax remembered. They all carried guns. When they’d come to the house, she thought they wanted food. Only when the soldiers seized her husband did Xuncax realize that the horrors she’d heard of in other villages had come directly to her door. The soldiers threatened to kill her, too, said Xuncax’s declaration, so she stopped struggling with them and let them drag her husband from the house.

Felipe Andres Tomas was apparently suspected of being a guerrilla soldier because he regularly traveled out of the country—picking fruits and vegetables in California, according to Xuncax.

Three hours after Tomas was seized, Xuncax’s in-laws came and gathered up Xuncax and her children—worried they too would be seized—and they all headed for the Mexican border. They made it on foot in a day and a half, Xuncax said. She carried none of her possessions, not even the clothes her husband had recently brought home from the United States for her children. She carried her youngest daughter on her back and a small amount of money.

“The soldiers executed my husband that evening,” read Xuncax’s declaration. “I later learned that the soldiers returned to our house the next day and completely destroyed it. In many places they killed the children and burned the homes. I was fortunate that they only murdered my husband.”

Xuncax stayed in refugee camps along the Mexican border for three years, fearing the Guatemalan soldiers who were rumored to slip over the border at night and snatch families, returning with them to Guatemala.

From her husband’s past stories, Xuncax knew the United States was full of economic and educational opportunities, and in 1985 she crossed with others over the border at San Ysidro. She didn’t know anything about immigration laws, she said.

In 1989, after working illegally as a seamstress in the garment factories of Southern California, Xuncax came up to the Central Valley and, with the help of the Immigration Law Clinic, applied for political asylum, which could free her permanently from the threat of deportation.

Thirteen years later, Xuncax has remarried, raised six children in the United States, worked various jobs that have included picking fruits and vegetables, and bought her own house on a street that simply ends at the foot of dusty gold fields.

Though her pending asylum claim protects Xuncax from deportation, the fact that she is neither a resident nor a citizen has put up multiple roadblocks. Her family must purchase new work permits each year (the price is now $120 per person). They’ve been advised not to leave the country, not even to visit the relatives in Mexico who helped them escape, because it might threaten her asylum claim. Her children don’t have citizens’ access to federal grants and other financial aid for college, and her youngest daughter, when she soon turns 21, will be too old to be a party to Xuncax’s claim. She’ll have to reapply on her own.

Xuncax was interviewed by Sacramento INS officials in August 1989, but then received a letter in October 1990 saying that her case would be transferred to the San Francisco office. That was the last she heard on the issue until 1995, when she received a letter from the San Francisco office saying that her claim had been received in April of that year. Since the interview had already been completed and supporting documentation provided, all Xuncax needed was to have her claim adjudication. But between 1995 and 2002, there was no word.

Though INS officials cannot discuss the details of any particular case, INS chief press officer, Russ Bergeron, said that asylum cases are based on the ability of applicants to prove that they have suffered persecution in their home country or are likely to suffer persecution if they return to their home country.

Sometimes, Bergeron suggested, both conditions must be met. Who’s in power now? he rhetorically asked, wondering why a Guatemalan immigrant might still fear persecution if her persecutors were no longer in power.

After waiting with Xuncax for 13 years, the Immigration Law Clinic has now decided to apply extra pressure to expedite her case. Ana Marie Sotuela, who runs the clinic office, sent a series of registered letters to the INS, insisting on adjudication. Three of these letters went unanswered, she said, but the fourth, in April of this year, elicited a response from an INS agent who reportedly said that the INS has too few resources to handle such cases quickly, but that she would try. The clinic, unsatisfied, has since solicited help from the offices of Senator Dianne Feinstein and Congressman Doug Ose.

Feinstein’s office had not responded by press time, but Yier Shi, press secretary for Ose’s office, confirmed that they had Xuncax’s case and were trying to help her.

Xuncax seemed unaware that such powerful forces were working on her behalf. As in Guatemala, her situation was shaped by events over which she had no control. But this was not the first time American activists had launched campaigns centered around her.

In 1995, Xuncax and eight other Guatemalan Mayans, along with one American nun, became plaintiffs in a lawsuit against Hector Gramajo, ex-minister of defense in Guatemala. Gramajo was in the United States to study law at the Kennedy School of Government at Harvard in the early 1990s, and was served, it was reported by the San Francisco Chronicle, on the day of his graduation ceremony.

Gramajo did not respond to the suit and Judge Douglas Woodlock found him guilty by default after determining that “Gramajo devised and directed the implementation of an indiscriminate campaign of terror against civilians such as plaintiffs and their relatives.”

Woodlock awarded nine of the 10 plaintiffs a total of $45.7 million. Gramajo returned to Guatemala without paying, but human rights organizations continue to investigate ways to collect.

In spite of Xuncax vs. Gramajo, there are legitimate reasons, Bergeron felt, for an asylum case to take as long as 13 years. Some of them have to do with a relatively new pair of laws meant to help Central American refugees.

The first offered “ABC status” to certain Guatemalan and Salvadoran immigrants fleeing persecution. The law limited detention of such immigrants, assured them new asylum hearings that could overturn previous orders to deport, and made sure that these immigrants received employment authorization.

The second, the Nicaraguan Adjustment and Central American Relief Act (NACARA), ensured that eligible immigrants could avoid deportation and be granted lawful permanent residency.

The clinic made sure that Xuncax received ABC status and applied for NACARA relief, but that might have slowed down her claim. The INS has held off adjudicating claims like Xuncax’s, said an INS spokesperson, so that asylum seekers have time to learn about and apply for relief under the new laws. There was also a delay during which the INS sought clarification on how to implement them. While the INS delayed such claims, their numbers skyrocketed.

An INS spokeswoman pointed out that though there are 70,000 cases like Xuncax’s still pending, the INS has used overtime funding to complete 13,000 of them this year so far. Professor Jim Smith, who launched the Immigration Law Clinic in 1981, is unimpressed.

They’ve just relegated Xuncax’s claim to “administrative purgatory,” he says. He kicks himself for not involving powerful politicians earlier. Only with the help of such “squeaky wheels” does he expect to see a quick resolution.