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After fleeing drug violence for the US, Mexican asylum seekers are often sent back home.
The asylum seekers and their lawyers strongly disagree. But there's little indication the odds are in their favor. With few known courtroom successes, attorneys report testing out a mishmash of legal strategies.
The El Paso attorney who represented the two Juarez brothers already deported said they are in hiding back in Mexico, frightened and unable to move about freely.
"They're just scared, you know?" said Eduardo Beckett, managing attorney of the Las Americas Immigrant Advocacy Center in El Paso. His organization has lost or had to abandon five other asylum cases and still represents five others.
"They were very disgusted with the way they were treated," he said of the deported brothers. "They were expecting they would have some mercy."
Square peg, round hole
America's asylum law was established 30 years ago in the Refugee Act of 1980 to provide sanctuary to people whose governments don't protect them from life-threatening persecution. All they have to do is find their own way to an American shore and request asylum from any government official.
To win asylum, they later must convince a judge they have suffered past persecution or have a well founded fear of future persecution for one of five reasons: race, religion, nationality, political opinion or membership in a particular social group. They have to show their home government either can't protect them or is part of the problem.
Judges have extended political asylum to, among many others, white Zimbabwean farmers chased from their land by black government-sponsored mobs, Christian Iraqis forced from homes by militant Islamists and Darfur minorities attacked by armed Sudanese government groups.
But few Mexicans are granted asylum, government statistics indicate. Applications have climbed since Mexican President Felipe Calderon declared war on the country's drug cartels in 2006. Some 896 Mexicans applied for asylum between January and April this year compared to 586 for the same period three years earlier. Among them are police officers, journalists, lawyers and business people.
Judges have typically granted asylum to 50 or 60 Mexicans a year the last decade out of 2,000 to 3,000 filed, according to Executive Office of Immigration Review statistics.
A key legal difficulty for Mexicans, immigration experts and lawyers agree, is that the law's five categories do not include victims of crime. Mexico's profit-hungry drug traffickers aren't known to target people because of race, religion, nationality or political opinion. So some of the attorneys admit they're hunting for ways to stretch the definition of one of the five categories — “social group” — to cover their clients.
Several immigration law specialists say the law originally defined social group as involving biological characteristics such as sexual orientation, skin color, kinship ties and other “immutable characteristics.”
Now, lawyers arguing for Mexican drug war refugees point to subsequent case law they insist has expanded the definition to specific families and people sharing social connections through professions or business.
Still, there's little consensus among judges about what constitutes a social group, an analysis of case law shows. One court accepted as a social group families targeted by criminal Honduran street gangs while another court last year rejected Salvadoran families targeted by the MS-13 gang.
One court accepted as a social group wealthy Colombian landowners being extorted by drug traffickers. Another court rejected as a social group targeted employees of a deposed government in Congo.