In late July, for the fourth time in 10 months, Daniel Fernandez prepared for what he hoped would be his first asylum hearing.
The Venezuelan native gathered items old and new: his asylum application, his Migrant Protection Protocols paperwork, hand sanitizer and a mask.
“They still haven’t said anything official about the hearings,” Fernandez, 30, said a few days before his July 27 date in U.S. immigration court — an appointment he received after three postponements.
Then, later that week, he tapped out a sad-face emoji on WhatsApp: “They canceled the hearings. No start date.”
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Amid a backlog of more than 1 million immigration cases and indefinite border restrictions because of the coronavirus pandemic, Fernandez and thousands of other migrants like him are supposed to be waiting in Mexico, showing up periodically at courtrooms on the border as their cases wind through American immigration courts.
But Fernandez — a gay man who is HIV-positive and received a diagnosis of clinical AIDS shortly after requesting asylum — said the widespread crime and lack of health care on the Mexican side of the border has left him in a nearly yearlong limbo that is unsafe. The situation comes in contrast to the very reason he seeks asylum in the United States, which is to be safe.
“I did not imagine I would get trapped here in Mexico,” Fernandez, who fled persecution by President Nicolás Maduro’s government in Venezuela, said. “Being trapped here already has me hopeless.”
An asylum claim based on 'political opinion'
Fernandez shared his asylum case with NBC News, after being unable to do so before an immigration judge.
Fernandez first approached the United States-Mexico border on Oct. 31 and attempted to request asylum because of persecution he faced due to being a card-carrying member of Voluntad Popular, or Popular Will, a United States-backed opposition party. In 2015, the group elected the first out gay and transgender members to Venezuela’s National Assembly. He also told border officials he was HIV-positive and hadn’t received medications or blood tests for months, so he didn’t know about the progression of his infection.
In many ways, Fernandez has a textbook asylum case: He claims he was persecuted due to his "political opinion," a category that is explicitly protected in America's asylum statute, unlike being LGBTQ. (The Trump administration recently proposed potential restrictions to asylum claims based on being persecuted for being lesbian, gay, bisexual, transgender and queer.)
In his asylum application, Fernandez detailed how government police and pro-government gangs called "colectivos" chased and beat him in the years after he began participating in anti-government protests in the northwestern cities of Valera and Maracaibo.
He also alleged that starting in 2017 he was unable to obtain medication to treat his HIV infection, either because of shortages, political retribution or both — he could never be sure.
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Fernandez’s asylum application recalls a day of “extreme persecution” on June 27, 2017, when protests against Maduro’s efforts to rewrite the constitution reached a violent crescendo.
"We will never surrender,” Maduro said at the time. “And what we couldn't accomplish through votes, we will with weapons.”
Fernandez said that week in Venezuela, he was approached by two unknown men on motorbikes who called his name. They grabbed his phone, threw his belongings all over the street and began “a brutal beating.”
“F-----, if you keep going to the protests, we will keep f------ you over,” he said the two men screamed as they rained punches and kicks down on him. Eventually neighbors came to his aid.
“I felt very close to death,” Fernandez wrote in his asylum application. “If the neighbors hadn’t seen the act, I don’t know how far the aggression would have gone.”
He took their advice and returned to his hometown, but soon received threatening calls and texts: “f-----, you love dick, next time we’ll give it to you harder.” They knew he was in Valera, too, he said.
This torturous cat-and-mouse game went on for another two years. His mental health declined, and his family told him he should return to Maracaibo to resume his studies and attempt to eke out a normal life.
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Meanwhile, he said his physical health continued to spiral out of control because he could not treat his HIV infection. He lost a lot of weight and began to fall ill with gastrointestinal issues and thrush.
One year ago, amid continued economic implosion and a humanitarian crisis that has pushed nearly 5 million Venezuelans out of the country, Fernandez, too, decided he had enough. It was time to go.
He left Venezuela on Aug. 31 and proceeded overland to neighboring Colombia. He stayed there for over a month before saving enough money to fly to Mexico City. From there, he traveled to the border crossing in Laredo, Texas, arriving just before the end of October.
He still waits in Mexico 10 months later.
When he arrived at the U.S., the then-recently upheld "remain in Mexico" policy required him to wait south of the border until his dates in American immigration courts.
Remaining in a dangerous limbo
Immigration advocates have decried the requirement to wait in Mexico as illegal under international law because it effectively closes the doors to large numbers of asylum-seekers, requiring them to wait in Mexico, which has high rates of crime.
The U.S. Department of State currently has a "do not travel" warning for Mexico's Tamaulipas state and a "reconsider travel" warning for Coahuila and Nuevo Leon states, all border states adjacent to Texas, due to the risk of crime and kidnapping. Fernandez is currently in Coahuila state, where the State Department says "violent crime and unpredictable gang activity are common."
An October 2019 report by the bipartisan U.S. Commission on Civil Rights found that “remain in Mexico” — technically the Migrant Protection Protocols, or MPP — is “burdening migrant shelters in Mexico and putting asylum seekers at increased risk of violence.”
“Several asylum seekers who were turned away from U.S. ports-of-entry have been killed, women have been raped, and children have been kidnapped, calling into question the relative safety of Central Americans in Mexico,” the report stated.
Soon after arriving in Mexico, Fernandez still did not have an official way to access HIV medications, and his infection worsened.
“He was taken to a hospital in Laredo, where a doctor reviewed his medical records and confirmed that he is living with AIDS and is in need of further treatment,” his attorney, Scott Weaver, said in February. “Nevertheless, the CBP officers in charge of making a decision on his case told him that his request was denied and that he needed to get back to Mexico.”
"People should not be placed in MPP if they have serious medical issues," Weaver continued. "This is written in DHS’ 'Guiding Principles for MPP.'"
Matthew Dyman, a spokesperson for U.S. Customs and Border Protection, told NBC News that “MPP exemptions are determined on a case-by-case basis.”
“If guaranteed medical exemption criteria were to be made public they would be exploited by human smugglers and activists,” Dyman said.
After Fernandez was denied humanitarian parole for his medical condition in February, he was returned to Mexico, where he was mugged and briefly kidnapped by a gang.
Even now, there he remains.
