Mexican Asylum Seekers Need Not Apply

by Jason Dzubow on November 13, 2013

Carlos Gutierrez was a successful businessman in Chihuahua, Mexico when cartel members demanded extortion payments from him. After he could no longer afford to pay, the cartel members cut off his feet as an example to others. Mr. Gutierrez somehow survived and fled to the United States where he requested asylum. Ultimately, his case was administratively closed, leaving him in legal limbo (though I guess that beats deportation).

Carlos Gutierrez: "What matters is that you get up. I have no legs, but I am on my feet."

Carlos Gutierrez: “What matters is that you get up. I have no legs, but I am on my feet.”

To raise awareness about Mexican asylum seekers, Mr. Gutierrez–outfitted with prosthetic legs–biked over 700 miles across Texas:

“I’m not here to point the finger at anyone; simply to alert the [U.S.] government as to what’s going on with the Mexican people,” Gutierrez said. “People from other countries are granted asylum as soon as they touch American soil, but not us Mexicans. Because even with the circumstances we’ve lived through – in my case the attempt on my life – it isn’t enough to get asylum. I don’t think it’s fair that it’s this way for Mexicans just because we are from a neighboring country.”

Mr. Gutierrez’s lawyer, Carlos Spector, the founder of Mexicanos en Exilio, adds that, “Asylum law doesn’t reflect the Mexican reality, which is that much of the extortion is possible because of the relationship with the state.” He continues:

Because the police is an extension of the state… and because the police is often responsible for acts of violence or allows acts of violence to occur with impunity, the state is responsible for what happens to victims of organized crime. That, he says, makes it political persecution.

I’ve written before about the abysmally low asylum grant rate for Mexican asylum seekers: Historically, something like 2% of asylum cases from Mexico are granted. So what gives? Why is the denial rate for Mexican asylum seekers so high when conditions in that country are so violent?

First, let’s look at the statistics. Perhaps the situation today is not quite so dire as the historical data suggests. According to the Department of Justice, for FY 2012, there were 9,206 applications for asylum from Mexico received by the Immigration Courts. In the same year, the Courts granted 126 cases and denied 1,395 (an additional 337 Mexican cases were granted by the Asylum Offices, but I have seen no data on the total number of Mexican applications, so we do not know the success rate before the Asylum Offices – see DHS Statistics, Table 17). Another 138 cases were abandoned, 1,906 were withdrawn, and 2,335 were resolved in other ways. “Other” cases are mostly people who changed venue, but also people who received some other type of relief from removal. Presumably “abandoned” and “withdrawn” cases might also include people who received some other type of relief.

So just looking at granted (126) vs. denied (1,395), we have an 8.3% grant rate. But since this does not include people granted Withholding of Removal, relief under the Convention Against Torture or some other type of relief (Cancellation of Removal or adjustment of status), we can safely assume that the number of Mexican asylum seekers who win their court cases is significantly higher (with “win” being broadly defined, as not everyone who gets CAT relief views it as a win). 

Even if the grant rate is not as low as previously believed, it is still pretty darn low. Why?

One reason that the success rate for Mexican asylum seekers is so low may be that Mexican applications tend to be defensive (i.e., filed as a defense after the applicant is in removal proceedings) rather than affirmative. Although I have not seen any data on this, it is probably safe to assume that most Mexican cases are filed defensively. This is because the majority (61%) of aliens residing unlawfully in the U.S. are from Mexico, so it stands to reason that they would represent the largest group in removal proceedings. People in removal proceedings who have no other option tend to file for asylum as a last ditch effort to remain in the U.S. Such people are less likely to succeed (see DHS Statistics, page K2) for several reasons. For one, they are usually filing outside the one-year filing deadline and are thus probably ineligible for asylum. Also, some of these asylum seekers will be detained, which makes it much harder to successfully litigate their cases. Finally, some of these people will be in removal proceedings due to a criminal conviction, which also makes it more difficult (or impossible) to win an asylum case.

So while there are some legitimate explanations for the low denial rate of Mexican asylum seekers, could there be other, less proper, reasons? Mr. Gutierrez and his lawyer Mr. Spector suggest two possibilities: One, that because Mexico is a neighboring country, we tend to deny their asylum claims at a higher rate. This has been called the “floodgate” argument–if we grant asylum too easily to Mexicans, it will open the floodgates and we will be inundated with Mexican applicants. And two, adjudicators in the U.S. do not properly recognize that claims related to cartel violence are really political claims because the cartels and the Mexican state are inextricably linked (asylum claims can be granted based on political persecution, but generally not based on fear of criminal violence).

Although I have no evidence to back it up, I think there is something to the floodgate argument. Decision-makers are certainly aware that granting asylum to large numbers of Mexicans will likely lead to more people coming to the U.S. Combine this with the fact that these cases are relatively easy to deny (since they usually do not fall neatly within one of the five protected categories) and you have a strong incentive to reject Mexican asylum claims.

I am a bit more skeptical of the argument that these cases are “political,” since the government and the cartels are connected. Even if the government is doing the persecuting, that does not necessarily mean that the persecution is political. It may simply be (as it seems) that the criminals and their government allies are trying to steal money from the people. Under current asylum law, it is difficult to argue that this–by itself–is a basis for asylum. 

Finally, there is no doubt that many Mexicans–including Mr. Gutierrez–face dire circumstances. Perhaps there needs to be a change in the law to help them, even when they do not meet the legal definition of “refugee.” If we can help Chinese people victimized by forced family planning, and Cubans (whether they have been victimized or not), shouldn’t we do something to help our Mexican neighbors who are daily threatened, harmed, and murdered by the cartels? 

{ 5 comments… read them below or add one }

Candace April 1, 2017 at 11:16 am

It would certainly open the floodgates to Mexicans wanting to reside in the US. In fact, I cannot believe Mexicans actually warrant refugee status. The Mexicans here legally go back & forth on a regular basis; seemingly without fear. Plus, all of the Mexicans seem to be under the impression that Mexico is the greatest country in the world, why would you want or need asylum from itIbelieve this is just a last ditch effort to remain in the US and still receive government handouts and not pay income taxes. That’s certainly what all of the Mexicans here illegally, that I know, do.


Jason Dzubow April 4, 2017 at 6:12 am

Google “Mexican journalists” and you will find a good example of Mexicans with strong asylum cases. Many Mexicans do not have a good cases and do use asylum as a last ditch effort to remain in the US. However, many Mexicans have very strong asylum cases as there are – unfortunately – some pretty serious human rights abuses in that country. Take care, Jason


alfrescoguy April 10, 2014 at 3:53 am

Maybe Carlos Gutierrez wasn’t rich enough to fall in the category of “belonging to a certain social group,” which is one of the categories to grant asylum.

I can’t believe that a rich guy who has one million dollars or more, can easily get an immigrant visa to the U.S., but a guy who had his legs cut off and was nearly murdered is having such a hard time to get asylum.


giles March 5, 2014 at 1:31 am

money talks. if you’re a bigshot in russia you are welcome to live and launder your money in us uk oz etc. if youre useful to russia like snowdown you get asylum in russia. mexico will not give asylum to a phoenix az resident in the middle of drug wars either. the only solution is to stand up as the auto defensas in mexico and clean up your local narco govt. agents. more mexican illegals in the usa only delays the necessity of cleaning house as in 1910-20. but not by much. we will see.


Jason Dzubow November 14, 2013 at 10:00 am



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