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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."
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.
Originally posted on the Asylumist: www.Asylumist.com.
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."
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?
Originally posted on the Asylumist: www.Asylumist.com.