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Drug War Desperados: Asylum and U.S.-Mexico Immigration

In Immigration on November 1, 2011 at 2:50 PM

Higher standards of living, family reunification, and enhanced educational opportunities have long made the United States an attractive destination for Mexican emigrants. Intense turmoil south of the border in recent years has made la via norte attractive for another reason: sanctuary. Since the end of 2006, more than 40,000 people have been killed as a result of the Mexico drug wars. Gruesome stories from the wars make Francis Ford Coppolla look like Don Bluth. Godfathers with sobriquets like “El Barbie,” “Crutches,” and “El Lobo” have directed live dismemberments, chainsaw decapitations, and acid baths against their contrarios. The drug lords have likewise masterminded the assassinations of almost 30 mayors, a congressman, and a host of police officers. The horrific consequences of “metendose” in the conflict make it no surprise that a fifth of Mexico’s federal police officers are under internal investigation for cooperating with the cartels.

High-conflict states, marked in red

In light of the mayhem, it seems Mexicans should have a strong case for asylum immigration. Unfortunately for most of those seeking escape from the madness, however, asylum law provides a narrow basis for immigration. To qualify for asylum, emigrants must meet a stringent set of factors, each addressed in detail below.

I. Asylum seekers must have suffered past persecution or have a well-founded fear of future persecution.

Case law defines persecution as “threat to life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Because harm arising only out of general civil strife will not be considered “persecution,” the millions of innocent bystanders in the Mexican drug wars are unlikely candidates for asylum unless they can show that they have been targeted on account of one of the protected grounds discussed in Section III infra.

II.  The persecution must be by (a) a state actor or (b) a private actor against whom the government is unwilling or unable to provide protection.

The Mexican government appears unable to provide protection from the drug violence. As mentioned above, more than 40,000 people have been killed in Mexico in drug-related violence since the end of 2006.

III.  The persecution must be on account of one of five protected grounds: (1) race; (2) nationality; (3) religion; (4) membership in a particular social group; or (5) political opinion.

The two most likely protected grounds from which a Mexican might seek asylum are political opinion or membership in a particular social group (PSG). Unfortunately, gaining PSG asylum can be challenging. The case law defines social group as a group of persons who share a common characteristic that is either immutable or so fundamental to the members’ identities or consciences that they should not be required to change it. See Matter of Acosta, 233. PSG’s must also have social visibility and particularity. For example, non-criminal informants of the Cali drug cartel in Colombia were denied asylum on the basis that their social group  had no “social visibility” or was not perceived as a group in a society; furthermore, their group had no particularity, i.e. it was not a discrete part of society. The group therefore failed to qualify as a PSG. For the same reasons, “affluent Guatemalans” and Salvadoran youths subject to recruitment efforts by the Mara Salvatrucha have failed to qualify as PSG. Matter of SEG, 24 I.&N. Dec. 579 (BIA 2008). On the other hand, family is well‐recognized as a particular social group. See LopezSoto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004); Matter of Acosta, 19 I.&N. Dec. 211, 233 (BIA 1985). Former occupation and current occupation are also PSG, if fundamental to identity or conscience. Mexican police officers, family of police officers, or perhaps members of families known to be opposed to the drug cartels might be able to qualify as members of PSG.

The protected ground “political opinion” is broadly interpreted. Protected “political opinion” may be expressed through actions as well as words. It can include involvement in political organizations or activities, traditional political beliefs, or beliefs regarding policy issues. Even neutrality may be a political opinion when it is the product of “conscious, deliberate choice” and it is “articulated sufficiently for it to be the basis of past or anticipated persecution.” Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997). Likely relevant to some Mexicans in danger of persecution, opposition to or refusal to join a gang could be construed as a political opinion. See UNHCR Guidance Note on Refugee Claims Relating to Victims of Organized Gangs ¶ ¶ 47‐48.

Finally, one must show a nexus between the persecution and the protected ground. In other words, the persecution must be “on account of” the protected ground. It is not enough to just show the existence of a protected ground and the existence or possibility of persecution.

IV.  The applicant must be unable to safely and reasonably relocate to another part of the country of origin.

U.S. government attorneys opposing asylum for cartel contrarios might argue there are states in Mexico that have retained a relative calm and to which any asylum-seeker could safely relocate. With the steady spread and escalation of violence in Mexico, the persuasiveness of such an argument is increasingly tepid and would certainly depend on the facts of each individual case.

V.  The applicant’s past conduct must not give rise to any bars to eligibility.

Some acts or conditions will bar an asylum-seeker’s application. Bars to eligibility include, inter alia: (1) involvement in the persecution of others; (2) commission of a particularly serious crime; (3) posing a serious danger to the security of the U.S.; and (4) terrorist activities, including supporting and aiding terrorists. Failure to file for asylum within one year of arrival in the U.S. unless there are “changed circumstances” will also bar grant of asylum.


An emigrant can present herself at any port of entry and request asylum. From there she will be detained and held for about four to six weeks before a credible fear interview. If she passes, then ICE will set a bond amount (usually high) pending final disposition.

If asylum is not an option, immigrants seeking protection should consider alternative avenues like Withholding of Removal and protection under the Convention Against Torture. These alternatives offer limited possibility of success but can sometimes offer relief where asylum cannot.

Until asylum law changes—unlikely between now and November 2012—most Mexicans enduring violence and threat of violence must follow the more traditional (and often tedious and protracted) immigration routes.