Rubén Rosario: Day care aide's horrific tale, deportation inspire parents
Effort begins to win 'fair shot' at asylum
By Rubén Rosario

Article Last Updated: 06/28/2008 08:13:12 PM CDT


Brenda Nohemi Morales de Fernandez loves taking care of babies and toddlers. It doesn't matter whether they're giggling, throwing up on her clothes, crying up a storm or doing the stinky that needs changing.

The little people do make life refreshingly therapeutic for the 34-year-old teacher's aide at St. Paul's Jewish Community Center. The tykes help weaken the demons that torment Fernandez, an alleged kidnap and sexual abuse victim, at night.

"Kids even that young can tell a person's true heart,'' said Hart Johnson, one of several parents whose children have interacted with Fernandez during her 18 months of employment at the center. "She doesn't speak very good English. But she really doesn't have to. The kids love her because they feel her love and warmth.''

Which is why Johnson and other parents were blown away two weeks ago when Fernandez disclosed her troubled past for the first time.

Fernandez says she was kidnapped at age 14, raped, threatened with her life and held virtually captive for nine years by a politically connected drug-trafficker in her native Guatemala. But her attempts to seek asylum here were twice turned down. Fernandez will voluntarily leave the United States on July 16.

She won't return to Guatemala, where she believes she will be killed and where her oldest brother was gunned down four months ago in a still-unsolved killing. She will fly instead to Mexico or another country that will grant her a visa while she contemplates what


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to do with the rest of her life.
"I always wanted that they take my life rather than another one of my family,'' Fernandez said during the end of an hourlong conversation last week. ''I always felt that I would deal with whatever comes to me as long as my family is safe."

The parents and the staffers at the Jewish Community Center are not standing by. They launched an eleventh-hour bid to keep Fernandez here or have her case heard anew, this time with critical information they and a prominent Twin Cities law firm believe could significantly affect the rulings.

"She never asked for our help,'' said Johnson, who with a sister co-owns TivoliToo, a Mendota Heights-based 3-D and sculptural arts firm responsible for St. Paul's "Peanuts'' statues.

"But at the least, she deserves a fair shot to have her case properly handled and heard, something we feel she did not get. That's what the United States of America is all about.''

A LONG CAPTIVITY

Fernandez, one of eight children, comes from a rural farming family in Casillas, Guatemala. In 1988, the family moved to Guatemala City, the capital, to give a brother a better chance at an education.

It was not long before a man named Anibal Gonzalez, then 37, took a liking to the 14-year-old schoolgirl. According to case file documents, Gonzalez was a reputed former member of "La Guardia,'' a corrupt police narcotics team later disbanded by the government.

In late December 1989 or the beginning of 1990, Gonzalez allegedly abducted Fernandez as she was returning home from school. He took her to a hotel room where he kept her for three days and raped her, according to interviews and case files.

He threatened to kill her parents and other members of her family if she left him. Her parents went to police soon after the disappearance, but the local cops, who knew Gonzalez, reportedly refused to take a police report.

"I was told to write letters to my family, telling them that I was fine and that I wanted to be with him," Fernandez recalled.

Her family, stunned by the disappearance, moved back to the countryside.

"They are simple, humble people who, like me, were overwhelmed and knew nothing about big-city ways,'' she said.

She never again saw her father, who died in 1992 of complications from a stroke. She learned about the death from her captor four years after the fact.

Fernandez witnessed drug deals between Gonzalez and a string of friends, associates and police agents who regularly visited the home where she was kept. He threatened to harm her or her family if she ever spoke about his drug-trafficking.

She says she summoned the courage to leave Gonzalez in 1998 after he allowed her to take a job at a convenience store. With the help of her boss, Marco Antonio Fernandez, she stayed with a cousin in the city and then visited her mother and siblings. She then told them about the kidnapping.

"My mother told me she cried every day and night for me,'' Fernandez said as she began to cry. "She told me that regardless of what would happen to the family, that I had to leave the country.''

A PLEA FOR ASYLUM

Brenda married Marco Antonio Fernandez in the summer of 2002. The couple thought they could make a new life in Nicaragua. But they feared Gonzalez's influence also stretched there after a plane filled with drugs crashed near Managua. News accounts reportedly tied the ill-fated, drug-laden aircraft to a relative of Gonzalez's.

Marco Antonio Fernandez has relatives in the United States. The couple obtained tourist visas and entered the U.S. in the fall of 2002. Both applied for asylum within the year. The couple's daughter, Daniela, was born in October 2003. Fernandez and her husband were allowed to legally work and live here pending a decision on their asylum claims. An immigration hearing officer denied both claims in 2004.

Kristin Olmanson, one of Minnesota's two Justice Department immigration judges who preside over such cases here as well as the Dakotas, then reviewed the case. Receiving asylum is always a long shot because there is usually little if any independent or corroborating evidence to support a person's account of persecution or torture. And some asylum seekers do spin wild tales in order to stay here. It often rests on whether the judge believes the applicant.

In fact, the two Minnesota judges, well respected in the local legal community, jointly rejected three of every four asylum cases three years ago, slightly above the national average, according to a recent report.

Olmanson was bothered by discrepancies in the case file. She surmised that Fernandez, at 14, "simply ran off with her boyfriend,'' a man 37 at the time.

Olmanson also noted that Fernandez — a woman diagnosed with and undergoing regular counseling and taking daily medication for full-blown post-traumatic stress disorder as well as post-partum and severe depression — could not remember exactly when her kidnapping took place — the end of 1989 or the beginning of 1990.

"The fact that she cannot give a month or year of this significant event weighs negatively on the respondent's credibility,'' Olmanson wrote in a decision in late 2006. "Her testimony has left considerable doubt that she was held against her will during this entire time.''

The Board of Immigration Appeals affirmed Olmanson's ruling May 16 without needing to decide on Fernandez's credibility. The board ruled she had not presented convincing evidence to be afforded asylum protection as either a witness/victim to drug crimes or as an abuse victim from a common-law marriage.

"While we are extremely sympathetic to the abuse the respondent (Fernandez) endured, we cannot find that the respondent suffered such abuse on account of a protected ground,'' the panel stated. It ordered Fernandez to voluntarily deport herself on her own dime within 60 days.

AN OUTPOURING OF HELP

Johnson and other parents first learned of Fernandez's plight at an annual Jewish Community Center picnic outing for day care families June 5.

Johnson approached the Minneapolis law firm Davis and Goldfarb, while fellow parents Mary Rohman Kuhl and Kimberly Reeves kicked off a fundraising campaign to defray legal expenses. Fernandez contributed her entire economic-stimulus tax-rebate check and has taken a second part-time job to help with the legal case.

Attorney Michael Davis will file a motion this week to have the Board of Immigration Appeals review the case again with new information. A motion to review was also filed last week with the 8th U.S. Circuit Court of Appeals in St. Louis.

Davis reviewed court documents and affidavits and strongly believes Fernandez received ineffective counsel in her case, including important documents that weren't properly filed on time.

Davis also believes that the unsolved execution-style slaying of Fernandez's oldest brother backs up her fear of harm if she returns to Guatemala. The brother took over the family reins after their mother died a year ago. He was also taking care of a 32-year-old brother who suffers from cerebral palsy. His bullet-riddled and decomposing body was found eight days after he mysteriously vanished from the family farm.

"Judges dealing with asylum cases have a tough job, and they also get lied to often,'' Davis said. "I've dealt with a lot of these cases. I believe Brenda, and I would not have taken on this case if I did not feel strongly about her or her chances.''

Fernandez could still have to leave the country by July 16 even while the motions are pending. If she does, she plans to stay in Mexico with relatives of people she befriended here. Part of the fundraising drive, which includes a public bank account set up at U.S. Bank, will go for travel and lodging expenses.

Fernandez separated from her husband more than a year ago. He also faces voluntary deportation. The estranged couple are making arrangements to temporarily leave Daniela behind until they know where they will relocate.

"If need be, I'm willing to care for Daniela,'' said Stacy Dockman, Fernandez's supervisor and the assistant director of the Jewish Community Center's child care program. "But I sure hope it doesn't come to that.''

Rubén Rosario can be reached at rrosario@pioneerpress.com or 651-228-5454.

HOW TO HELP

Anyone interested in helping parents at the Jewish Community Center defray Brenda Fernandez's legal bills can go to any U.S. Bank branch and donate to the Brenda Fernandez Fund.

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