Law inhibits many Mexican asylum cases

by Alejandro MartĂ*nez-Cabrera \ El Paso Times
Posted: 07/31/2011 09:26:08 AM MDT

For people from Mexico, success stories about getting political asylum in the United States are scarce.

Many wind up a muddled mess in a system removed from reality and under laws that may no longer apply.

Take this case. In 2009, a woman from a small town in Chihuahua filed for political asylum after six men in her family -- including her father and brother -- were killed in 2008, the houses of two other relatives were burned to the ground and another family member fled to California.

The first of the family to die violently was presumably killed by the Juárez cartel for working with the rival Sinaloa cartel. What followed, the woman suspected, was the Juárez cartel's attempt to consolidate power in the region by eliminating rivals and punishing their relatives to discourage others from joining ranks with the enemy.

The woman told the immigration court she feared she could be next if she returned to Mexico. But her request for political asylum was denied.

The judge determined that harm to family members does not necessarily constitute past persecution, and that the threats of harm didn't rise to the level of persecution. Furthermore, relocating to other parts of Mexico was not an unreasonable option.

"What the judge didn't understand is that drug organizations are so vicious that they would kill an entire family for their own needs," said Carlos Spector, the woman's former attorney. Immigration judges "are defining everything going down there as generalized violence with no specific rationale."
The woman, whom Spector requested not be identified for security concerns, will appeal the decision at a different immigration court in California.

Her case illustrates the difficulties people fleeing from drug-related violence or corrupt authorities in Mexico face when trying to obtain political asylum under the law's traditional interpretation of what constitutes persecution.

In the past five years, the number of Mexican citizens seeking asylum make the nation among the top asylum-seeking countries, but only a small fraction of the petitions are granted.

U.S. immigration courts and officials received 25,223 political asylum petitions from Mexican citizens in fiscal years 2006 through 2010. Only 822 were granted -- or 3.3 percent.

In contrast, about 29 percent of cases received from all nationalities were granted in that same period.

And while political asylum cases from Mexican citizens made up 6.9 percent of all the petitions filed in the past five years, those cases constituted 0.77 percent of the total granted applications.

According to the Transactional Records Access Clearinghouse, a data research organization at Syracuse University, in El Paso -- one of the jurisdictions that handles the most political asylum cases from Mexican citizens -- immigration judges denied 83.3 percent of all political asylum cases they ruled on in the past five years.

Immigration Court Judge Thomas C. Roepke had the third-highest denial rate nationwide, having turned down 96.7 percent of all asylum petitions he decided on.

Qualifying for asylum

To obtain political asylum, a person must prove that there's a well-founded fear of persecution on account of the person's race, religion, nationality, political opinion or membership in a particular social group.

An individual must also show that he is being persecuted by his government or that authorities in his country are unable or unwilling to protect the applicant from persecution by another group.

Former immigration attorney Edgar Holguin said the problem for many political asylum cases from Mexico is that current asylum law -- contained in the Refugee Act of 1980 -- was drafted to offer protection in a Cold War setting.

"What I tell my clients is that asylum law was designed to help people fleeing from the other side of the Iron Curtain," he said. "It worked really well for people who were openly practicing Christian faith in a communist country. But in Mexico's case, it's difficult to pigeon someone into it. The law was written for a different era and different circumstances."

San Francisco immigration Judge Dana Leigh Marks, head of the national immigration judges' union, said that the law predates some of today's problems, such as gangs in Guate mala and cartels in Mexico, so there are fewer precedents on how the law should be applied.

"These are newly emerging situations, so case precedents do not squarely address them," she said.

While the law can be stretched to accommodate cases from foreigners seeking relief from gang or drug violence, such arguments often don't fit traditional interpretations of the law, immigration experts said.

"There are people who would argue that standing up to drug traffickers is not political opinion," Marks said. "The attorneys trying to do that are using cutting-edge legal arguments to show that is a qualifying legal nexus. Those are right off the bat going be cases that will have a lower grant rate across the country, no matter who hears them."

Holguin said that according to asylum law, being a victim of common crime is not considered persecution. Harm has to be severe enough to be viewed as such. But in his former client's case, Spector argued that the violent acts against the woman's family were targeted acts of persecution.

"The judge made a factual determination that the family wasn't being persecuted, that they were just victims of crime. This captures the essence of denial rates regarding Mexicans," he said. "Judges are always looking for ways to say that it's a generalized violence versus a particularized violence. But these people were being killed only because they were members of a family."

Some attorneys believe U.S. foreign policy can also have indirect effects on how judges view cases from different countries.

For example, by regulation, immigration judges must receive a document from the Department of State reporting on the situation in the applicant's country for every political asylum case. Some immigration experts believe a favorable or unfavorable description of each country can have a significant influence on decision-makers.

Spector has also argued that granting asylum in some cases from Mexico would mean accepting that the authorities in that country cannot protect their citizens and are sometimes the persecutors, which could potentially strain the United States' relationship with a key partner in its war against drugs.

"I think they're trying to avoid giving Mexico a black eye," he said.

Alejandro MartĂ*nez-Cabrera may be reached at a.martinez@elpasotimes.com; 546-6129.

http://www.elpasotimes.com/news/ci_18587920