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CoverStory

Death by deportation
A Denver judge denied a 16-year-old’s political asylum application–and sentenced him to death
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by Greg Campbell (Editorial@boulderweekly.com)

They say you don’t hear the shot that kills you. Bullets always outrun the reports that announce them, and if the aim is good, death comes before the whip-crack of the shot can catch up. There’s no telling whether or not this was the case with 16-year-old Edgar Chocoy, who was gunned down March 27 in the streets of Villanueva, a town overrun by street gangs on the outskirts of Guatemala City. The day he was killed, he’d come out of hiding at his aunt’s house to buy juice and lingered in the littered intersections of the crime-ridden city to watch a Roman Catholic procession of saints through the streets. He never returned. By the time his family was told of his murder four days later, he’d already been buried in an unmarked grave in a cemetery for the homeless.

Chocoy’s death came as a surprise to no one, least of all him. In spite of all of his efforts to avoid this fate, his life ended much as he’d predicted it would–in a flare of violence that’s all too familiar in Guatemala’s cities. Years earlier, at an age when most children are more concerned with their grades than their imminent murders, Chocoy sought every avenue of escape. Knowing that he’d been "green lighted"–marked for death–by members of a notorious gang he was trying to untangle himself from, he hid out with relatives until that became too dangerous for them, bused alone to Mexico, then illegally entered the United States in search of his mother who’d left him when he was 6 months old. Two years after he left, however, he was deported back to Guatemala by a Denver immigration judge who either didn’t believe his testimony that he would be killed there or didn’t care. By denying his application for asylum in the United States, Judge James Vandello effectively sentenced him to death.

Two and a half weeks after being returned to Villanueva, street executioners carried out that sentence, just as Chocoy said they would.

He’d heard those bullets coming for years.

Mara Salvatrucha

From the outset, Edgar Chocoy didn’t stand a chance. Born to an impoverished Guatemalan family in a city where wild street gangs openly battle overwhelmed security forces, the course of his short life followed those of all too many children in Central America who are abandoned or neglected by their parents. When he was 6 months old, his mother left him in the care of her father so that she could work in the United States. Chocoy lived with his grandfather–who was always either at work or at church–his uncle who sold drugs for a living and his aunt. He’d only met his father once. No one bothered to put him into school until he was 9 or 10.

As solace for his loneliness, Chocoy made friends of the kids he met in the street and at school. Many of the older children came to be like the family he’d never had. The trouble was that they were all members of a street gang that the Central Intelligence Agency calls one of the most notorious of the thousands of gangs that lay siege to Central America: Mara Salvatrucha, or MS. The name is derived from a species of aggressive swarming ants and, according to Al Valdez, an investigator for the Orange County District Attorney’s Office in California, formed in the Los Angeles Rampart neighborhood in the 1980s. Its original members were Salvadorian refugees who, during that country’s civil war, fought with the paramilitary group Farabundo Marti National Liberation Front and La Mara, a violent street gang.

"Like many other street gangs, MS initially formed for protection, but quickly developed a reputation for being organized and extremely violent," Valdez wrote in a 2000 article for the National Alliance of Gang Investigators. "Mara Salvatrucha is truly an international gang."

In Guatemala, MS is involved in everything from fencing cars stolen from the United States to trafficking military firearms. Members are easily identified by their elaborate tattoos, and their numbers are estimated at 100,000 in Guatemala alone. The extent of their criminal enterprise is massive and involves extortion, bold robberies, random assaults and brutal murders. By the time Chocoy was befriended by the gang, Central American countries began to crack down on the region’s estimated quarter-million gang members with bloody results. In response, MS began dismembering victims and leaving notes on body parts warning governments to back off.

It’s not known if Edgar Chocoy knew this level of detail about the gang that he suddenly found himself a member of in the summer of 2000. All he knew is that his new "friends" taught him how to rob chains and watches from pedestrians. They gave him a sense of belonging and purpose, however misguided it may have been. As he explained it to the judge during the Jan. 4 hearing on his asylum application, "They were the only friends I had, and I only knew them… I thought they were the only family I had."

It’s unlikely that he could have known what he was really getting into; after all, he was only 12 years old at the time.

Deadly decisions

If his testimony before the Denver immigration court was truthful, Chocoy didn’t seem cut out for the violent life of a gangster, even though he soon sported their tattoos, a requirement of Mara Salvatrucha members. According to a transcript of his hearing provided by his attorney Kim Salinas of Fort Collins, he tried to avoid fighting with other gangs or beating people with rocks and bats, as they often did. When a fight seemed imminent, he made up excuses to go home.

If he’d stayed in the gang, he might have eventually toughened up, gotten over his disdain for violence and ended up as one of the thousands of murderers who rule Guatemala’s streets. But when he was 14 he visited a different neighborhood and met kids who weren’t in a gang. They came from a wealthy family, and Chocoy enjoyed playing soccer with them. He’d visit their homes and play video games, getting a tantalizing taste of the sort of home life he’d longed for but never had for himself. He stopped wearing the tight white T-shirts and baggy pants preferred by the gangsters, and he became more and more scarce at their nightly 6 p.m. "hang-out" sessions, which regularly turned into crime sprees.

By distancing himself from Mara Salvatrucha, Edgar took his life in his hands. One of the rules learned quickly as a member of Mara Salvatrucha is that you do not leave the gang. He was beaten and robbed for dropping out of sight, and finally he was told that he would be killed unless he paid the gang 3,000 quetcales–the equivalent of $375–in a week.

He stopped going to school and went into hiding at his aunt’s house. Chocoy probably never saw his new friends again, the ones whose normal lives inspired him to quit Mara Salvatrucha. In fact, he rarely went outdoors at all, doing nothing in his aunt’s house except counting the hours. The one time he ventured outside, at night in the hopes of avoiding his MS tormentors, he was chased by them at gunpoint, threatening to shoot if he didn’t come to them with the money they demanded.

After that, his aunt’s house became a prison. MS members stalked the streets and waited for him across town at his grandfather’s house. His aunt finally told him he had to leave because, as he told Judge Vandello, "she didn’t want anything to happen to her… She knew that they didn’t care about killing somebody."

His mother in L.A., whom he barely knew, sent him money for a bus ticket to Mexico City.

At 14 years old, Chocoy left Guatemala in fear for his life.

Deport them all

There’s nothing unique about Chocoy’s flight north in an attempt to escape the violence that is synonymous with Mara Salvatrucha. In the past six months, thousands have done so, a wave of tattooed refugees who see the United States as a safe haven from the persecution they know will befall them for trying to escape Mara Salvatrucha’s clutches. Joining them in the exodus north are the gang members themselves who are getting out of the way of governmental crackdowns in El Salvador and Honduras. Guatemala has yet to institute a similarly tough anti-gang dragnet, but it’s expected to adopt one soon. All of these refugees and refugees-from-justice crash into one another in Mexican border towns where their wars with one another–as well as with indigenous vigilante groups–simply continue regardless of what country they’re in.

Mexico, of course, isn’t the last stop–everyone is headed for the border, and MS gangs are present in California, Oregon, Alaska, Texas, Nevada, Utah, Oklahoma, Illinois, Michigan, New York, Maryland, Virginia, North Carolina, Georgia, Florida and Washington, D.C. Most members are in the United States illegally.

The U.S. response to this wave of criminals from the south has been simple: round them up and deport them. In October, local and federal law enforcement conducted "Operation Fed Up" which resulted in more than 60 arrests of Mara Salvatrucha members in Charlotte, N.C., who were immediately processed for deportation.

The main tool used by judges to decide deportations such as these is a 1996 law that banishes illegal immigrants from the United States for life if they break the law, resulting in the biggest dragnet in U.S. history. More than half a million people have been captured and deported and their crimes range from petty theft to murder. According to government figures, in 2003, illegal criminals were being deported to more than 160 countries at a rate of one every seven minutes.

This catch-all approach to the problem has certainly rid the U.S. of some violent criminals, but it’s also been disastrous on more than a few occasions. The law doesn’t discriminate between volatile MS members and generally law-abiding illegals who may have come to the United States as infants. This is what happened to Eddie and Edgar Garcia of Sanford, Colo. They’d crossed the border at ages 4 and 6 respectively, and their town was filled with stories of how they helped their neighbors, supported their parents, played high school football and made good grades. But when one of them was stopped for driving without a license, they were both deported to Palomas, Mexico, where they hadn’t been in 16 years and where they knew no one.

On a more global scale, the "deport them all and let their home governments sort them out" approach is overwhelming these criminals’ home governments, according to the results of a six-month investigation by the Associated Press. In Jamaica, one out of every 106 men over the age of 15 is a criminal deportee from the United States.

In Honduras, according to the latest figures from Interpol, murders increased from 1,615 in 1995 to 9,241 in 1998, after the first wave of what is now 7,000 criminal deportees.

"We’re sending back sophisticated criminals to unsophisticated, unindustrialized societies," says Valdez, the Orange County gang expert. "They overwhelm local authorities."

But sometimes, those who are sent back are the ones who tried to leave gang life to escape to something better: a home life where instead of robbery, assault and the fear of being murdered, a child looks forward to weekend soccer games and love from his family.

Homeboy without a home

Edgar Chocoy found neither of those in his mother’s home when he eventually crossed the border and located her in L.A. According to his own testimony, he barely knew her and didn’t stay with her for long. He started school in L.A., but couldn’t speak English. His MS tattoos made him a target of local gangsters who thought he was a member of a rival gang. Neither school nor life with his mom lasted long: He was kicked out of the school for fighting and kicked out of his mom’s house because he no longer went to school.

Scared of the idea of having to live on the street, he fell in with people he’d met on the L.A. streets–all of whom were gang members.

According to Chocoy’s Fort Collins attorney, Kim Salinas, he didn’t officially join the L.A. gang but he was involved in some of their activities. He transferred drugs from place to place and was given a .25-caliber pistol to protect the gang members. According to his testimony, he did this in exchange for having a place to sleep. In May 2002, he was arrested for possessing a firearm and again on July 28, 2002, for possession of cocaine base. On Jan. 15, 2003, he was arrested again for possession of a firearm.

Because of his young age, his violations were adjudicated, but he was sent to an Alamosa, Colo., detention camp in the custody of the INS because he was in the United States illegally. It was at the detention camp when he first heard of the concept of political asylum, and in October, Salinas began preparing his arguments that if he returned to Guatemala, he would be killed by Mara Salvatrucha gang members.

"I am certain that if I had stayed in Guatemala the members of the gang MS would have killed me," Chocoy wrote in an affidavit. "I have seen them beat people up with baseball bats and rocks and shoot at them. I know they kill people. I know they torture people with rocks and baseball bats. I know that if I am returned to Guatemala I will be tortured by them. I know that they will kill me if I am returned to Guatemala. They will kill me because I left their gang. They will kill me because I fled and did not pay them the money that they demanded."

The gang wasn’t the only worry awaiting Chocoy if he were to be sent back–former gang members have everyone to worry about. Not only was he still marked for death by Mara Salvatrucha, but possibly also by the police and vigilante gangs who often take matters into their own hands by leveling street justice upon those they fear will continue their lives of crime once they’re returned to Guatemala.

Among his biggest problem were Chocoy’s tattoos, which forever branded him as a member of Mara Salvatrucha. When he was in L.A., he’d heard about a group called Homeboy Industries, which specialized in removing gang tattoos, and he’d gone through two of the painful procedures before being moved to Colorado to await his deportation hearing. But having the tattoos removed was just as much of a fateful decision: If an MS member ever found out about it, there would be no way to fake it and profess that he wanted to join the gang again, if only for self-preservation. "They’ll know who he is whether he has his tattoos removed or not," Salinas told the judge during Chocoy’s hearing. "In fact, arguably that makes him even more of a target because that’s more evidence that he did leave the gang… and would make him even more subject to their persecution."

At his Jan. 4 hearing, Chocoy pleaded with the judge for his life. His testimony is punctuated by numerous statements that he would be killed if he were returned. As Salinas put it in her closing arguments, Chocoy made a number of bad decisions in his young life, "but he also made a very good decision, that is, to leave the gang," she testified. "But when he made that decision, he was punished by persecution… Edgar made a choice to… escape from the life he’d known and to escape from the Mara Salvatrucha… He was denied that chance because the gang Mara Salvatrucha controls through force and fear because it doesn’t serve their interest to have children leave them to play soccer and video games. Edgar made a decision to better his life and for that decision he was beaten, his life was threatened and he was forced out of his home, out of his school and out of his country.

"Edgar’s now before you for his final chance to save his life," she continued. "He’s asking you not to send him back to a country where he’s been identified as one who must be killed. He’s asking you not to send him back into the arms of his persecutors. He’s asking you for one final chance to escape the gangs and become a child, a child who’s safe from fear and danger, a child who’s free to attend school, to pursue a career, to live in a home [with] a family… He’s asking for the opportunity to become a productive adult. He’s asking that you not deny him his ultimate chance."

The death sentence

In giving his verbal decision about Chocoy’s application for asylum, Judge Vandello recapped Chocoy’s case and considered a slew of supporting documents, including an affidavit from Bruce Harris, the director of Casa Alianza, a Central American children advocacy group, which said that sending Chocoy back to Guatemala would be a death sentence for him. Vandello read a psychological evaluation which concluded that Chocoy was depressed and suffering from post traumatic stress disorder. He read a letter from Santiago Sanchez, a counselor at Homeboy Industries, who said Chocoy has a lot of support and a suitable home with an aunt in Virginia who offered to raise him, an offer that was initially approved by the Office of Refugee Resettlement. Another letter from a teacher at the San Luis Valley Youth Center said Chocoy was doing well in school and that "he has a positive attitude and… has been a valuable asset to their program."

The judge acknowledged several reports on gang violence in Guatemala, including one that said an average of 30 to 40 children are murdered every month in Guatemala in gang-related violence.

Finally, he said he found Chocoy’s testimony to be credible.

"He appears to have told his story honestly and directly," Vandello said. "I have no reason to doubt his credibility."

Nevertheless, Vandello denied the asylum application, effectively sentencing Chocoy to death. Vandello declined to comment for this article, but in the transcript from the hearing he based his decision on his belief that Chocoy could safely return to Guatemala and live an anonymous life, in spite of all the testimony to the contrary.

"I also note that Guatemala is a country of 13 million people," Vandello said. "The respondent has to show that his fear of persecution is nationwide, and I find it hard to believe that if he were to go to a part of Guatemala without tattoos and get a job and try to live a normal life, I find it hard to believe that he would be identified as a gang member who defected and then would be harmed. There are many cities and many places he could live I believe without being so identified."

But in his final statements, Vandello seems to imply that Chocoy brought the danger he might experience on himself.

"The United States has many programs to help youths from other countries learn English, get jobs, stay out of gangs," he said. "But he chose to get into another gang, he was arrested by the police twice for carrying a loaded weapon, and another time for delivering drugs, and I find that such a person, even though a juvenile, is not entitled to asylum and should not be granted asylum in the exercise of discretion.

"It appears that he has taken steps recently to try to do something with his life," he concluded. "These steps are very late, and I find that his past speaks… more loudly than his present attempt at rehabilitation."

The decision was a blow to Chocoy’s advocates.

"I can’t believe a judge could say that," says Anna Sampaio, assistant professor of political science at Denver University. "It says there is no purpose in incarceration or rehabilitation. It says you cannot pay for your past. And most importantly, it shows an ignorance, a misreading of what is going on in communities of color, the reasons why kids on the street in Central America wind up in gangs."

Sampaio was originally tapped by Salinas to provide expert testimony on gang life in Guatemala, but was never called to offer her testimony.

"It probably wouldn’t have made a difference considering what’s happened since 9/11," she says.

According to Sampaio, prior to 9/11, there would have been other processes in place that likely could have stopped the deportation of a minor like Chocoy, but those options have all but disappeared under the new government emphasis on fighting terrorism.

"They now deport first and ask questions later," she says.

The governmental ignorance she refers to stems from a lack of understanding about the economic conditions in Central America and how those conditions impact children.

"You have tens of thousands of kids living on their own on the street by the time they are 3 years old," she says. "They don’t make an intelligent decision to join a gang. They decide that the only way to eat and survive is to be associated with a gang. The gang becomes their only family, their protector. There are no government programs to keep them alive. It’s a gang or death in most cases. And can a kid under the age of 10 or 12 really understand the decisions they are making without any input from an adult? Edgar’s decision to get out of the gang may have been one of his first true decisions after reaching an age where he could decide something on his own."

In the end, the 16-year-old was too tired to fight Vandello’s decision. Salinas says he ultimately decided not to appeal because he couldn’t stand being locked up until a new hearing could get underway.

Chocoy was returned to Guatemala on March 10.

On March 27, he was shot dead.

Fallout

Chocoy’s death has caused an international outcry.

Both Amnesty International and the United Nations High Commissioner for Refugees have issued statements condemning Vandello’s decision to deport him. Representatives of U.S. government agencies have been put in the unenviable position of defending the judge’s decision, albeit weakly. Associated Press quotes Virginia Kice, a spokeswoman for U.S. Immigration and Customs Enforcement, as saying, "There is a real likelihood that the same fate would have befallen him if he was allowed to stay here."

Wade Horn, the assistant secretary for children and families at Health and Human Services told the Denver Post, "Sometimes very bad things happen despite the fact that people do the best they can."

Others put the blame on the home countries.

"I don’t think we can control what happens in Guatemala," Jeff Copp, special agent in charge of Homeland Security’s Bureau of Immigration and Customs Enforcement in Denver, told the Post. Copps’s view is, of course, correct, but raises the point that if you can’t control what happens in Guatemala’s violent streets, perhaps children shouldn’t be deported there. It seems that since 9/11 those most familiar with the conditions in the deportee’s home country are being given the least input into the deportation process.

"The Chocoy case has made us all more aware of the dangers associated with gang activity in the countries of origin," says Ken Tota of the Health and Human Services Office of Refugee Resettlement. "But it is still not our call. Ultimately it is the Justice and Homeland Security departments that have the final say on deportation. Perhaps we should get more involved during the hearing process."

When questioned about his office’s decision to pull its permission for Chocoy to live with his aunt in Virginia, Tota stops short of saying that his office was pressured to do so by Homeland Security. He did however, admit that it was Homeland Security’s intervention–the agency sent a record of Chocoy’s criminal past to HHS and suggested that he should not be allowed to live with the aunt–that was the deciding factor in rescinding the permission for Chocoy to stay.

"Based on the current laws and the way they are being enforced," says Tota, "it’s the criminal background that immediately disqualifies someone for asylum, even if they are minors. We’re hopeful that consideration of the conditions in the home country will eventually become more important to the process. We’re trying to train our people about the gangs and the consequences of returning children with gang ties. I understand that the Child Protection Act has a clause that would give us more control over the process based on country conditions."

Regardless of what the Child Protection Act authorizes, it’s clear that cultural education is needed at the bureaucratic level–for example, while Tota’s office is actively involved in helping kids like Chocoy to break their gang ties, it also encourages former gang members to have their tattoos removed, often before it’s known whether or not they’ll be deported.

When told that a gang member whose tattoos had been removed was often more susceptible to persecution by members of the gang, Tota seemed shocked.

"I hadn’t considered that," he says. When asked if it is a good idea to suggest to former gang members that they remove their tattoos before it is known whether or not they will be deported, Tota responded, "It may not be."

Still, there may be a positive side to the Chocoy tragedy. Tota assures that his office will be more proactive in future cases.

Salinas credits the outrage over Chocoy’s murder to the fact that, for a change, news of his fate reached the United States.

"There are a lot of times when we just don’t know what happens to people, but in this case his mother was in touch with me and contacted me and said he was killed," she says. "What happens in a lot of cases is that we don’t know what happens to people when they go back to their countries… [Immigration attorneys] don’t know what happens to people who are denied their asylum claims, they never hear from them and they’re never in touch with them again, so who knows what happens to them?"

Salinas says the news of Chocoy’s death hit her particularly hard; she’d grown close to him during the five months she prepared his case.

"He was a sweet boy who just wanted a chance. He had bad breaks all his life," she says. "I would have been proud to have had him as a son.

"He was a great kid."

Joel Dyer and The Associated Press contributed to this article.

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