Must Asylum Lawyers Advise Our Clients to Enter the US “Illegally” Through Mexico?

by Jason Dzubow

Delays in the U.S. affirmative asylum system have just about reached a breaking point. In our office, the longest-waiting applicant recently passed the three-year anniversary of his asylum interview, with no decision in sight. And of course, it’s not just post-interview delays (usually due to security background checks) that are the problem. Anyone interested in asylum knows about the long wait times–anywhere from two to five years–before an applicant even receives her interview.

"At least we're all together."
“At least we’re all together.”

Perhaps these wait times are tolerable for a single person or a family that is together here in the U.S. After all, such applicants (eventually) receive a work permit, which allows them to work, attend school, obtain a driver’s license, and live a relatively normal life (though it is a life overshadowed by the uncertainty and stress of not knowing whether they can remain here).

But what about an asylum seeker who is here, but separated from his spouse and children? Can a person wait for three, four, five years or more to reunite with family members? Will a young child even know her parent, if the only contact she’s had with the parent over the last several years has been via Skype? And won’t such long delays make the process of integration that much more difficult for family members who are “following to join” the principal asylum applicant?

For all these reasons, I believe USCIS should be prioritizing cases of applicants who are separated from their families. Unfortunately, USCIS does prioritize such cases.

There is a possible alternative to waiting for years separated from family: Arrive at a port of entry without a visa and ask for asylum. There are different ways to arrange such an arrival. It can be done legally or illegally. It can be very dangerous or relatively safe. My question here is, what obligation do attorneys have to advise our clients about the different options?

First, though, I want to briefly discuss the various options, starting from the worst and working up to the best (or, more accurately, the least bad).

The most illegal, and most dangerous way to come to the U.S. is by hiring a smuggler and paying him to bring you to the United States. There are all sorts of smugglers, and all sorts of smuggling routes. Some routes are relatively direct; others are circuitous. People die along these smuggling routes. Many others are robbed or raped. The majority seem to get detained in various countries for various periods of time. Some get stranded for months or years. And some are lucky and arrive with few difficulties. The cost of such trips varies widely. I have heard about people paying anywhere from $10,000 to $80,000; South Asian and Chinese migrants tend to pay more than Africans. This route almost always brings the alien to the Southern border, where she can try to enter the U.S. illegally (this has become increasingly difficult and dangerous) or where she can present herself to a U.S. Customs Officer and ask for asylum (this seems to be the more popular path these days).

Another illegal way to come here is to travel by air using a fake visa and/or passport, or the passport and visa of another person. Such documents can be difficult and expensive to obtain for an individual. For a family, the cost and trouble of getting fake documents is probably much greater. Once the alien arrives at the airport, he can present the documents and try to enter the U.S. or he can ask the Customs Officer for asylum.

A final option is to travel legally to Mexico, travel legally to the U.S. border, and inform the Customs Officer that you wish to apply for asylum.

In each case, assuming that she does not manage to pass inspection and enter the United States, the asylum seeker will be detained–maybe for a few hours and maybe for many months. Many asylum seekers who make it that far are ultimately denied asylum and deported (and some remain detained during the entire Immigration Court process).

Given all these risks, it’s clear that the best alternative is to come to the United States with a visa and then seek asylum after you enter the country. The problem, of course, is that it is very difficult to obtain a U.S. visa, especially for nationals of countries that tend to send asylum seekers to the United States, and especially especially for such nationals who want to come here with their spouse and children.

As lawyers, though, we have an ethical obligation to inform our clients of the options and to let them make their own decision. So when a father comes to my office and I explain the delays in the asylum system, and I tell him that he probably won’t see his children again for two, three or more years, and then he asks whether there is any way to bring his children here sooner, what am I to say? I suppose I can tell him about the process to expedite cases, but that process barely works and, at best, it is very unpredictable. I can also advise him to try to get visas for his family members, but we both know that this probably won’t work (and it’s also ethically questionable, since I would be advising the family members to come here on a non-immigrant visa when I know they plan to remain here permanently). But what about the “Mexico option”? Do I have an obligation to suggest that his family members apply for Mexican visas, which may be easier to get than U.S. visas, and then come to the Southern border for asylum?

The more I have considered this path, the more I think I am obligated to tell my clients about it. For one thing, it is entirely legal (yes, the title of this article says that it is “illegal,” but let’s call that a literary flourish to make the subject of the article more clear). If they arrive legally in Mexico, they can travel to the U.S. border and–even though they do not have permission to enter the United States–they can request asylum at the border. Despite misperceptions to the contrary, requesting asylum at border is legal. See INA § 208(a)(1).

Under U.S. law, the “circumvention of orderly refugee procedures” generally does not block a person from obtaining asylum. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). In other words, if a person does not wait for resettlement as a refugee, but instead travels to the U.S. to seek protection, he is not blocked from receiving asylum. Indeed, in my office, we have represented many people who arrived without a visa at the Southern border, and none of them was denied asylum due to the “illegal” entry.

So if a client is here in the U.S., stuck in asylum purgatory, and asks what she can do to bring her spouse and children to the U.S., I suppose I must mention the “Mexico option.” I can’t say I would recommend this option—the spouse and children will likely end up detained—but I do not think this is a decision for me to make. Maybe they are better off in detention, with a chance of release to join their asylum-seeker family member, than in the home country indefinitely separated from that family member and possibly in danger themselves.

As a lawyer, I have an ethical obligation to inform my clients about all the lawful options available to them—even the options I personally do not prefer. The path through Mexico may be an option for some, and asylum seekers have a right to know about it, so that they can make the best decisions for their families.

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Mexican Asylum Seekers Need Not Apply

by Jason Dzubow

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? 

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The End of Asylum as We Know It?

by Jason Dzubow

Last time, I wrote about the Dream 9–nine Dream Act activists who were detained at the border when they tried to enter the U.S. without permission. They were released from detention after DHS determined that they had a credible fear of persecution in their country of nationality, Mexico. The burden of proof for determining whether an alien has a credible fear of persecution is relatively low (lower than the burden of proof to receive asylum). Essentially, if they tell the Asylum Officer that they fear persecution in their home country based on race, religion, nationality, particular social group or political opinion, they will “pass” the interview and, very likely, be released from custody with an order to appear before an Immigration Judge who will later decide their asylum claim. The danger is that aliens who can legitimately (or fraudulently) show a credible fear of persecution, but who have little chance of receiving asylum, will overwhelm the system. That has not really been a major problem in the past. But as Don Ameche says, “Things Change.”

Here are some recent statistics from the Department of Homeland Security:

Fiscal Year

Number of Credible Fear Cases Completed

2009

5,523

2010

8,926

2011

11,716

2012

13,607

2013

22,775

So you can see that over the last several years, the number of credible fear cases has been steadily rising, but this year, FY 2013, there has been a significant increase (and remember that FY 2013 is not yet done–these statistics only cover the first three quarters of the year). The numbers look even more dramatic when we look at FY 2013 month by month:

Month in FY 2013

Number of Credible Fear Cases Completed

October

1,596

November

1,242

December

1,603

January

1,795

February

1,921

March

2,139

April

3,124

May

3,336

June

3,776

Comparing October to June (the most recent month where statistics are available), you can see that the monthly numbers have more than doubled. While this is pretty dramatic, remember that these numbers are for cases completed; not for new cases. It seems that DHS has shifted resources to the credible fear arena, so it is certainly possible that some of the increase is explained by DHS completing more cases. Nevertheless, something is clearly going on. So what is it?

It seems the system is one wafer thin mi(gra)nt away from bursting.
It seems the system is one wafer thin mi(gra)nt away from bursting.

The most obvious explanation (and one that other commentators and I have discussed before) is that escalating violence in Mexico is driving people to the U.S. But this appears not to be the case. If you look at the top five source countries for credible fear applicants, Mexico has been consistently either number 4 or number 5, and for the last three months (April to June), it has dropped off the list. A recent report from Fox News claims that Mexicans are crossing in large numbers and claiming that they have a credible fear of persecution. While Fox is not always the most reliable source (and their report has been called into question), the report is from last week, and so we won’t have the DHS statistics for a couple months. It would not be too surprising if violence in Mexico is one reason for the increasing number of credible fear cases, but–at least based on the statistical data we have now–that does not seem to be a factor.

Another, more likely, explanation is that all the talk of immigration reform is spurring people to come to the U.S. in the hope of taking advantage of any “amnesty.” The smugglers who encourage people to come illegally to the United States are not stupid. My guess is that they are convincing their “clientele” that anyone who reaches our country prior to the reform will obtain residency. This is almost certainly false (even assuming that some type of bill passes), but that does not stop unscrupulous smugglers from using the immigration reform debate as a selling point. And why not? We are already seeing organizations in the U.S. trying to make money before the reform has even passed (check out this website, which purports to know what the reform will be, what the fees will be, and will charge you a mere $3,000.00 + $2,500.00 in fees to Get Started Now!).

Further evidence that smugglers are driving the increase in arrivals can be found by examining the source countries. For FY 2013, the top three source countries were El Salvador, Guatemala, and Honduras. The numbers from all those countries have increased significantly from October 2012 to June 2013: El Salvador went from 586 per month to 1,410 per month, Honduras went from 435 to 815, and Guatemala went from 308 to 606. Another country, India, did not appear on the top five list until March, when it debuted at number 4 with 174 credible fear interviews. By June, the last month when data is available, India had moved to the number 3 spot, with 741 arrivals (AILA members can see all these stats here). Compare this to FY 2012, when a grand total of 377 Indian nationals were granted asylum. To me, the sudden surge from multiple countries indicates that “pull” factors (i.e., the immigration reform debate) are playing a larger role than “push” factors (problems in the source countries). 

The increasing number of people arriving in the United States and expressing a credible fear of persecution is straining the entire asylum system (the same officers who adjudicate asylum cases also do credible fear interviews). At my local Asylum Office (Arlington, VA), for example, the interview process has basically ground to a halt.  I have over 25 asylum seekers waiting for interviews, and only one case scheduled for an interview (which was set for Rosh HaShana–thanks a lot, ZAR). So, is this the end of the U.S. asylum system as we know it? I will discuss that in the next posting.

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Confusion Over Mexican Asylum Seeker Statistics

by Jason Dzubow

A recent report from the Fronteras Project states that the number of Mexican asylum seekers has doubled due to the ongoing violence in that country.  The report states that in FY 2010, about 3,200 Mexicans asked for asylum in the United States.  Only 49 received asylum.  In FY 2011, the report continues, 6,100 Mexicans filed for asylum and 104 were granted.

Even a seasoned mathmatician would have trouble with the government's asylum statistics.

While there has been an increase in the number of asylum seekers, the data from the Fronteras Project is incomplete and paints a distorted picture.

For one thing, the number of asylum seekers in FY 2010 was actually 4,510.  Apparently, the Fronteras Project used data from a January 2011 report, not the more up-to-date report from February 2012.  Their data for FY 2011 is accurate: 6,133 Mexicans sought asylum and 104 were granted in Immigration Court.  Thus, there was actually a 36% increase in the number of Mexicans claiming asylum in Immigration Court–a significant increase, but far less than the Fronteras Project reports.

Another problem is that the statistics from the Fronteras Project appear not to count Mexican asylum seekers who filed their applications affirmatively.  It is not easy to find data on affirmative applications, but according to DHS, 143 Mexicans were granted asylum affirmatively in FY 2010 (meaning a total of 192 Mexicans received asylum in FY 2010 affirmatively and defensively).  DHS has not yet published data on affirmative asylum approvals for FY 2011, nor has it made data available on the total number of Mexicans who filed affirmatively for asylum.

I suppose this is a lot of statistical mumbo jumbo just to show that the number of Mexican asylum cases increased 36% and not 100% as reported by the Fronteras Project, but the difference is pretty significant.

A second problem with the Fronteras Project report relates to the claim that the increase in defensive cases is caused by ongoing violence in Mexico.  This claim is somewhat dubious.  Many defensive asylum claims are filed when people are placed into removal proceedings.  As DHS has been deporting large numbers of people during the last few years, it is possible that more of them are filing asylum as a defense to removal.  This does not necessarily indicate an increase in the number of people afraid to return to Mexico.  Rather, it may simply show that more Mexicans are being deported and they are filing for asylum in a last ditch effort to remain in the U.S.

Given the data available, I am simply not convinced that there has been a major increase in the number of asylum seekers from Mexico.  Maybe when DHS releases the numbers for affirmative asylum applicants for FY 2011, we will learn something new (affirmative applicants are people who fled here and then affirmatively filed for asylum, so they are a better measure of people fleeing persecution than defensive applications).  But I doubt it.  Despite the growing violence in Mexico, the number of asylum seekers from that country has remained steady over the past decade.  As far as I can tell, the long anticipated flood of Mexican asylum seekers has yet to materialized.

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Asylum for Mexican HR Activist Spotlights Problems in Mexico and the US

by Jason Dzubow
Last week, the U.S. government granted asylum to Cipriana Jurado, a Mexican human rights activist who feared persecution by the Mexican army.  According to the Associated Press, Ms. Jurado’s “friend and long-time human rights colleague Josefina Reyes was gunned down in Juarez in January.”  Like Ms. Jurado, Ms. Reyes had campaigned against government and gang violence.  Not only was Ms. Reyes murdered–killed by unidentified gunmen–several members of her family were abducted.  Given the danger, it is not surprising that Ms. Jurado received asylum (not to minimize this accomplishment–only about 2% of asylum cases from Mexico are granted).  Ms. Jurado’s case, I think, highlights problems in the United States and Mexico caused by the escalating violence across our border. 
                                                                                                                                                                                                                 
To paraphrase Mr. Franklin: "An ounce of prevention is worth a pound of cocaine."
First in Mexico: The blatant attacks against human rights workers points to a general disregard for the rule of law.  Has the army become just another gang in the on-going turf war?  Tens of thousands of people have died as a result of drug and gang violence.  The U.S. certainly bears some of the blame, since we are the main consumers of the drugs passing through Mexico and we are the source of most of the guns used in the violence across our Southern border.  Mexico needs to get control of the situation and we need to help.  We need to do more to prevent weapons from crossing the border.  Also, it wouldn’t hurt to try something new in the “war on drugs.”  Perhaps legalizing certain drugs would help reduce the involvement of criminal gangs, and consequently reduce violence.  The website Law Enforcement Against Prohibition has some good information on the potential benefits of legalizing some controlled substances.
                                                                                                              
As for the U.S., if Northern Mexico becomes a failed state, the implications for us are pretty severe.  One fear is that increasing numbers of people will seek asylum in the United States.  The low grant rate for Mexican cases might change if–as in Ms. Jurado’s case–the persecutor is the Mexican government (as opposed to criminal gangs, who currently do most of the persecuting across the border).  This fear may be mitigated by the fact that–unlike Ms. Jurado–most people persecuted by the Mexican government will likely be involved in criminal activities and thus ineligible for asylum (though still eligible for relief under the UN Convention Against Torture). 
                                                                                                                                                                                                                                                                           
It seems to me that a border enforcement-only policy would betray our ideals of protecting bona fide refugees like Ms. Jurado.  We can’t live up to our ideals simply by trying to keep people out who are fleeing persecution.  We need to work more on the prevention side of the equation.  If we succeed, we can help reduce the flow of refugees and improve the situation for our Southern neighbor. 

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Violence in Mexico Threatens to Overwhelm the U.S. Asylum System

by Jason Dzubow

David North recently wrote on the Center for Immigration Studies website that a surge in Mexican asylum seekers might overwhelm the immigration court system in the United States.  In making his point, Mr. North referred to one of my blog entries:

At the moment the approval rate for Mexicans applying for asylum, despite the ferocious gang activity on the other side of the border, is only a little over 2 percent, but it is not the approval rate that worries but the application rate. Should that soar we would be in big trouble.  And it might. Jason Dzubow, a skilled asylum lawyer here in Washington, has written in both the Asylumist and Immigration Daily that some Mexican asylum seekers and their advocates “have formed a coalition to support each other in their cases.”

First, I certainly appreciate being referred to as a “skilled asylum lawyer” (though perhaps I would prefer to be called a “good-looking asylum lawyer”). 

Second, Mr. North raises an important issue.  Thus far, the evidence for an increase in the number of Mexican asylum seekers is anecdotal.  Statistical data for Mexican asylum seekers in immigration court is relatively flat: In FY 2010, there were 3,231 asylum seekers from Mexico; in FY 2009, 3,335; in FY 2008, 3,527; in FY 2007, 3,080; and in FY 2006, there were 2,818 Mexican asylum cases filed in U.S. immigration courts.  Data on affirmatively filed cases shows that the number of people from Mexico filing for asylum in the asylum offices has actually declined (the number of affirmative asylum seekers fell from 2,456 in 2008 to 1,778 in 2009).

Nevertheless, the scenario described by Mr. North remains a real possibility.  Violence in Mexico is out of control, and if things fall further apart, we could experience an influx of asylum seekers.  Our current immigration court system is already overloaded (cases routinely take one or two years–or more–to adjudicate), and so a large number of additional cases would completely clog the system.  In addition, it is unclear whether our society can or should absorb large numbers of additional refugees.  What then is the solution?

One possibility would be to reduce our refugee admissions from other countries and fill those slots with asylum seekers from Mexico.  We current admit and absorb about 75,000 refugees each year.  They come from many different countries.  If there was a large influx from Mexico, we could give Mexican asylum seekers priority over people fleeing persecution in more distant lands.

Another method to deal with a large refugee flow from Mexico would be to keep the refugees in camps, as is done in many parts of the world.  The people could remain in temporary camps administered by the U.S. and the United Nations, and when conditions in Mexico improved, they could return to their country.  It seems to me that we have a moral obligation to help people fleeing for their lives.  However, I am not so sure we have an obligation to permanently resettle those people in our country.

For now at least, this is all hypothetical.  Let’s hope it remains that way.

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Mexican Asylum Seekers Form Coalition

by Jason Dzubow

I’ve written before about the escalating violence in Mexico and the corresponding increase in people seeking asylum in the United States.  The chances of a Mexican person gaining asylum in the U.S. are very low – only about 2% of Mexican asylum cases are granted.  Now, apparently, Mexican asylum seekers and their advocates have formed a coalition to support each other in their case.  From the Americas Mexico Blog:

Cipriana Jurado: El pueblo unido jamas sera vencido!

Immigration attorneys and immigrant-rights groups in the Texas border city of El Paso said they have formed a coalition aimed at providing greater support for asylum seekers facing a hurdle-ridden application process.

The director of the Las Americas Immigrant Advocacy Center in El Paso, Louie Gilot, said cases of Mexicans fleeing drug-related violence have risen significantly over the past two years and that the asylum seekers include former police officers, rights activists, journalists, business leaders and even government officials.

Announcement of the coalition of asylum applicants coincides with a statement by Mexican activist Cipriana Jurado that she has begun the process of seeking political asylum. Jurado told Efe Tuesday that she had kept up her activism over the past five years despite the slayings of more than 19 colleagues and family members but finally decided to flee Mexico to save her own life and seek protection for herself and her children in the United States.

The violence in Mexico is some of the worst in the world.  Perhaps the new coalition will help improve the chances for Mexicans seeking asylum in the United States.  Given the low success rate of Mexican asylum cases, it is apparent that those fleeing the drug violence need all the help they can get.

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Twenty-Year-Old Mexican Police Chief–a/k/a the Bravest Woman in Mexico–Files for Asylum

by Jason Dzubow

In October 2010, Marisol Valles became the police chief of Praxedis Guadalupe Guerrero, a small town near Ciudad Juarez, Mexico.  Her predecessor had been beheaded by a drug gang, and the whole area has been plagued by horrific drug violence.  No one else wanted the job, so Ms. Valles, a criminal justice major at a local college, stepped in.  Mexican newspapers dubbed her “the bravest woman in Mexico,” but now, sources in Mexico and the U.S. confirm that she has crossed the border to ask for asylum in the United States.

The bravest woman in Mexico is also smart enough to know when to run away.

Ms. Valles asked for an eight-day leave for a personal matter involving her child and said she would return on Monday.  The town fired her after she failed to return and they could not reach her.  Apparently, she received multiple death threats, and feared for herself and her family.

MSNBC reports that she is in the U.S. and will seek asylum before an Immigration Judge.

According to the Wall Street Journal, in northern Mexico, “hundreds of police officers have been slain by drug traffickers who have targeted officers’ families, homes, and places of work.”  Nevertheless, the odds are not in Ms. Valles favor.  According to statistics from the Executive Office for Immigration Review, of the 3,231 Mexicans who applied for asylum in Immigration Court in FY 2010, only 49 cases, or about 1.5%, were granted. 

The reason for the low success rate is that people fleeing Mexican drug violence do not generally meet the definition of a “refugee,” a person with a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group.  While such people have a “well-founded fear,” they generally cannot demonstrate that the fear is on account of a protected ground. 

Another possible reason for the low success rate of Mexican asylum seekers is the U.S. government’s fear of opening the floodgate to many thousands of people who fear the rampant violence in Mexico. 

Given Ms. Valles’s high profile, her odds of gaining asylum might be better than the average Mexican’s (or even the average Mexican police officer’s).  Whether or not she succeeds in obtaining asylum, her case is another sad reminder of the difficulties faced by our Southern neighbor.

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New Asylum Law in Mexico Could Reduce the Flow of Refugees to the U.S.

by Jason Dzubow

Mexican President Felipe Calderon last week signed into law a new provision meant to bring Mexican asylum law in line with international standards.  Fox News Latino reports that the law was drafted taking into account the model legislation from the United Nations High Commissioner for Refugees.

Cantinflas
Until recently, Mexican asylum law was enforced by this guy.

“From now on,” President Calderon said, “Mexico will consider applications for refugee status from any person who cites a fear of being persecuted for his race, religion, nationality, membership in a particular social group or political opinion.”  Gender persecution will also be considered legitimate grounds for an asylum claim, he said.  Officially recognized refugees will have a right to work and to access health care and education.

UNHCR hailed the move:

Mexico has long been a signatory of the 1951 Refugee Convention and its 1967 Protocol and the country has a history of protecting asylum-seekers and refugees.  But, until now, Mexico lacked a specific legal framework for dealing with refugees as previous laws did not comply with international standards.

This law conforms to such standards.  It includes important principles such as non-refoulement (non forced returns); non-discrimination; no penalty for irregular entry; family unity; best interests of the child; and confidentiality.

If–and it is a big if–the new law is properly implemented, it could have an impact on the flow of asylum seekers into the U.S. via our Southern border.  As I’ve discussed in this blog previously, African, Chinese, and other asylum seekers enter the United States at the Mexican border and then file for asylum in the U.S.  If these people pass through Mexico without requesting asylum, it could negatively impact their chances for success in the United States (for example, they might be deemed less credible).  If they request asylum in Mexico, and their request is granted, they would be ineligible for asylum in the U.S., as they would be “firmly resettled” in Mexico for purposes of the immigration law. 

In addition, the U.S. currently has a “safe third-country” agreement with Canada, meaning that people denied asylum in Canada cannot apply for asylum here, and vice versa (at least that is how the agreement is supposed to work).  If the Mexican asylum law meets international standards, perhaps we will enter into such an agreement with Mexico.  This would further reduce the possibility for asylum seekers to pass through Mexico and then seek asylum in the United States.

The impact of the Mexican law on the flow of asylum seekers into the United States will depend on how effectively the new law is implemented.  Given the Mexican government’s current challenges, I’m a bit skeptical of its ability to live up to the high standards it has set for itself.  I suppose we’ll have to wait and see.

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Mexican Woman Receives Asylum on Account of Domestic Violence

by Jason Dzubow

The New York Times reports that an Immigration Judge in California has granted asylum to a Mexican woman–referred to as L.R.–who was the victim of severe domestic violence.  Her common-law husband repeatedly raped her, threatened her with a gun and a machete, and tried to burn her to death.  In April 2009, the Department of Homeland Security filed a brief that paved the way for last week’s decision.  That brief, which represented a reversal of DHS’s position during the Bush administration, concluded that “it is possible” that the Mexican woman “and other applicants who have experienced domestic violence could qualify for asylum.”  According to the brief:

DHS suggests that the particular social group in asylum and withholding of removal claims based on domestic violence is best defined based on the evidence about how the respondent’s abuser and her society perceive her role within the domestic relationship….  A group defined in light of this evidence might be articulated as “Mexican women in domestic relationships who are unable to leave” or as “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.”  DHS believes that groups understood in these ways, if adequately established in the record in any given case, would meet the requirements for a particular social group…

DHS also notes that the applicant must show that she cannot relocate within the country and that the government is unable or unwilling to protect her.  These factors will be determinative in most domestic violence asylum cases.

In L.R.’s case, experts testified that the police and government officials could not and would not protect her because of “the enormous social and cultural tolerance of this abuse, resulting in the virtual complicity of authorities who should prevent and punish these violent acts.”  L.R. herself testified that she went to the authorities for help, and one “judge had offered to help her if she would have sex with him.”  Thus, there was compelling evidence that the government would not protect her.  There was also compelling evidence and expert testimony that she could not relocate within Mexico.

The extreme facts of this case combined with documentary evidence and expert witness testimony led to an asylum grant.  It is doubtful that many abused women will have the same resources and support that were available to L.R. and that were the keys to success in her case.  However, L.R.’s case has established a framework for asylum based on domestic violence.  Now, at least, such women have a chance to gain protection in the United States.

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A Flood of Mexican Asylum Seekers?

by Jason Dzubow

In an article about Mexicans seeking asylum for fear of drug violence, John Feere writes on the Center for Immigration Studies website that:

it should be obvious to any Immigration Judge that our nation’s asylum laws are not applicable to the situation at hand. Nevertheless, if they are successful it would represent a massive expansion of asylum law and it would undoubtedly result in increased asylum claims by Mexicans living illegally in the United States. It would also encourage more Mexicans to cross the border illegally.

I disagree with Mr. Feere’s first assertion–that our asylum laws are not applicable to those fleeing gang and drug violence.  The harm faced by some asylum seekers (death at the hands of criminal gangs or corrupt government officials) would certainly qualify as persecution.  In many cases, the government of Mexico cannot or will not protect people from drug violence.  The main question seems to be whether such persons face persecution on account of a protected ground.  That will depend on the individual case.  Former police officers, for example, have been defined as a particular social group. See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).  As discussed in a recent post, the Seventh Circuit has held that “former gang members” may constitute a particular social group.  Ordinary citizens caught in the crossfire will have a harder time demonstrating a nexus (though they still might qualify for relief under the Torture Convention, as the harm faced might constitute torture, and–it could be argued–the persecutors are either government or quasi-government actors).

It is more difficult to argue with Mr. Feere’s second assertion–that granting asylum to some Mexicans fleeing the drug war will create incentives for more people to file for asylum, and more people to cross illegally into the U.S.  Of course, if the goal of asylum is to protect people from harm, this might not be such a terrible thing (assuming the harm they face crossing the border is less than the harm they face in Mexico).   

The balance between offering protection to refugees on the one hand, and not opening the floodgates on the other, is particularly difficult when it comes to our closest neighbor.  However, the numbers, at least so far, do not support a conclusion that increasing violence has led to more Mexican asylum seekers or more asylum grants for Mexicans.  The Justice Department figures for Mexican asylum seekers during the last decade:

Year Asylum Seekers Asylum Granted Mexicans in United States Illegally 
     2000      5,490      47      4,700,000
     2001      2,670      46      4,920,000
     2002      4,994      37      5,140,000
     2003      7,808      64      5,360,000
     2004      3,505      68      5,580,000
     2005      2,947      34      5,800,000
     2006      2,793      49      6,020,000
     2007      3,042      49      6,240,000
     2008      3,459      72      6,460,000
     2009      2,816      62      6,680,000

The (rough) estimates of the number of Mexicans residing illegally in the U.S. is based on a report from the Migration Policy Institute.  Based on these numbers, on average, about 220,000 Mexicans enter the United States illegally every year.  Only a very small percentage (usually <2%) of illegal Mexican migrants seek asylum each year in our country.  Of those, only about 2% are granted asylum.  For 2009, only 62 Mexican asylum seekers–or about 1 out of every 3,500 people–were granted asylum.  Given the remote possibility of an asylum grant, Mr. Feere’s concern about creating incentives for further migration from Mexico seems overblown.   

As opposed to Mr. Feere, I am an advocate for asylum seekers, and my inclination is to err on the side of offering protection.  However, if the situation in Mexico continues to deteriorate and we see a spike in asylum applications (which so far we have not), we may need to address how to fulfill our humanitarian obligations without compromising our territorial integrity.

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