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Legal and Political Challenges Inhibit Mexican Asylum Seekers

by Christy Carnegie Fujio, JD, MA & Jillian Tuck on October 6, 2011

Last year, a woman from a small town in Chihuahua Mexico fled her home after six men in her family- including her father and brother, were killed by drug cartels. She walked across the bridge over the Rio Grande into El Paso, Texas and asked immigration officials for asylum. Her request was denied and she was deported back to Mexico to face the cartels.

Violence in Mexico has escalated dramatically since 2009, particularly in Northern Mexican states where drug trafficking routes are concentrated. Cities along the US/Mexico border have seen a huge influx of people fleeing Mexico in search of safety.  This population is escaping persecution from a variety of state and non-state actors including drug cartels and criminal gang organizations, corrupt federal police, and the Mexican military. They are journalists, human rights activists, lawyers, and business-owners. They have seen their colleagues and family members assassinated in broad daylight, kidnapped from their homes, decapitated and suffer other terror-filled atrocities. Researchers estimate that over 230,000 people have fled their homes and roughly half have crossed into the US.

Despite mounting evidence of targeted violence, immigration judges seldom recognize that Mexican nationals have a “well-founded fear of persecution”- the substantive criteria for asylum in the United States. The Executive Office for Immigration Review reports that in FY2010, only 49 of 3221 (1.5%) of Mexican asylum applications were approved.  Mexico is one of the top five asylum-seeking countries.

Indeed, not all claims coming from Mexico meet the substantive requirements for asylum. Victims of generalized violence do not qualify. Those who do fit the “refugee” definition are often unable to make successful legal arguments because of the complex and fact-specific nature of asylum law. The Refugee Act of 1980 (which shapes much of US asylum law) was drafted to offer protection in the context of the Cold War. The law predates much of the drug cartel and gang violence that has emerged over the last decade and now the Mexican experience does not fit cleanly under a traditional interpretation of persecution. More sophisticated and creative arguments are required, but the vast majority of Mexican asylum seekers has no legal representation and must navigate the complicated process on their own.

In addition to these legal challenges, asylum for Mexicans is made even more difficult by the political and economic incentives the US has in maintaining loyalty to Mexican President Felipe Calderon. Granting asylum for Mexicans implies that the Mexican government is unwilling or unable to protect its citizens from human rights abuses. This politically-charged statement may strain the relationship between the US and Mexican governments and is one that judges would rather avoid.

The security situation in Mexico shows no sign of improvement. Asylum officer and immigration judges must do better to understand the dynamics of drug-war violence and stand strong against pressure to let foreign-policy positions influence the lives of individual victims.


Issues: Asylum, Torture
Places: United States

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