Problems Faced by Mexican

Asylum Seekers in the United

States
J. Anna Cabot
Asylum and Human Rights Clinic, University of Connecticut

Executive Summary
Violence in Mexico rose sharply in response to President Felipe Calderón’s
military campaign against drug cartels which began in late 2006. As a
consequence, the number of Mexicans who have sought asylum in the
United States has grown significantly. In 2013, Mexicans made up
the second largest group of defensive asylum seekers (those in removal
proceedings) in the United States, behind only China (EOIR 2014b). Yet
between 2008 and 2013, the grant rate for Mexican asylum seekers in
immigration court fell from 23 percent to nine percent (EOIR 2013, 2014b).
This paper examines—from the perspective of an attorney who represented
Mexican asylum seekers on the US-Mexico border in El Paso, Texas—the
reasons for low asylum approval rates for Mexicans despite high levels of
violence in and flight from Mexico from 2008 to 2013. It details the obstacles
faced by Mexican asylum seekers along the US-Mexico border, including
placement in removal proceedings, detention, evidentiary issues, narrow
legal standards, and (effectively) judicial notice of country conditions in
Mexico. The paper recommends that asylum seekers at the border be
placed in affirmative proceedings (before immigration officials), making
them eligible for bond. It also proposes increased oversight of immigration
judges.

Introduction
Over the past seven years, Mexican citizens have faced escalating violence from organized-
crime groups, military, and government officials. Many have fled to the United States
seeking protection. In the United States, they frequently endure prolonged detention and an
asylum system that is unresponsive to the danger they have escaped. This paper discusses
specific barriers faced by Mexicans in the US asylum system from the perspective of an
attorney who represented Mexican asylum seekers on the US-Mexico border in El Paso,
Texas from 2011 to 2013. It addresses impediments to asylum at various stages of the
process and makes recommendations on how the system can be reformed.

© 2014 by the Center for Migration Studies of New York. All rights reserved.

JMHS Volume 2 Number 4 (2014): 361-377

 Journal on Migration and Human Security

The Drug War in Mexico

When Felipe Calderón was elected President of Mexico in 2006, drug trafficking networks
were well-established throughout the country (Bonner 2012). Almost immediately upon
taking office Calderón initiated a war on drug trafficking and violence skyrocketed.
Calderón’s highly militarized offensive sought to target the leaders of drug trafficking
organizations (DTOs) as a means to splinter these networks, which, in turn, created
between 60 and 80 new DTOs (The Guardian 2012). The birth of new DTOs kindled
succession struggles and battles for territory (Lee 2014). The DTOs expanded their reach
into Central America, and branched out into extortion and kidnapping (Beittel 2013). It has
been estimated that at least 120,000, and possibly more than 130,000, people were killed as
a result of the drug war between 2007 and 2012 (Molloy 2013). Of these homicides, 11,400
took place in Ciudad Juárez. The Mexican government estimates that an additional 27,000
people have officially disappeared. The rate of homicide grew from 24 per day in 2007 to
75 per day in 2011 (ibid.).1 In 2011, according to some reports, Mexican cities made up five
of the top 10 most violent cities in the world, with Ciudad Juárez the highest at number two
(Seguridad, Justicia y Paz 2012). Up to 220,000 people left their homes in Ciudad Juárez
between 2007 and 2010, and some sources claim that 1.6 million people were internally
displaced in Mexico as of 2011 (Internal Displacement Monitoring Centre 2011).
In addition to the violence perpetrated by organized-crime groups, there have been
pervasive human rights violations committed by the military and police forces across
Mexico. Complaints of torture and ill treatment by federal and military officers more than
quadrupled between 2007 and 2011, according to the Mexican National Human Rights
Commission (CNDH) which received a total of 4,841 complaints during this period
(Amnesty International 2012). These reports do not account for offenses committed
by municipal police for which there is no systematic data collected, though there are
approximately three times more non-federal officers in the country. Widespread corruption
amongst security forces and in the judicial sector, and the deference to military justice, has
led to general impunity for human rights abuses (US Department of State 2012).
As early as 2008, media reports described Mexico as susceptible to becoming a failed
state, and United States lawmakers had begun to question its integrity and viability (Abbott
2011). The United States has contributed to the Mexican conflict. Ninety percent of illegal
firearms in Mexico come from the United States,2 and Mexico is the United States’ number
one supplier of marijuana, methamphetamine and cocaine.3 In June 2008 Congress passed
the Mérida Initiative, a three-year, $1.4 billion security assistance program to stem drug
trafficking and organized crime in Mexico, Central America and the Dominican Republic
1   The numbers are reported by the Mexican media and INEGI, Mexico’s National Statistical Agency.
According to the Justice in Mexico Project at the University of San Diego, the number of deaths reported
is often politicized and difficult to accurately ascertain due to “empirical and methodological challenges in
attempting to define and measure drug- and organized crime-related violence as a specific phenomenon”
(Molzahn, Rodríguez Ferreira and Shirk 2013).
2   Ford, Jess T. Testimony before the Subcommittee on the Western Hemisphere, Committee on Foreign
Affairs, House of Representatives. “Firearms Trafficking: US Efforts to Combat Arms Trafficking to Mexico
Face Planning and Coordination Challenges,” 19 June 2009. http://www.gao.gov/new.items/d09781t.pdf.
3   Perkins, Kevin L. and Anthony P. Placido. Testimony before the US Senate Caucus on International
Narcotics Control, 5 May 2010. http://www.fbi.gov/news/testimony/drug-trafficking-violence-in-mexico-
implications-for-the-united-states.
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(Seelke and Beittel 2009). In 2011, the Obama Administration pledged an additional $500
million for that year (Office of National Drug Control Policy, n.d.). The priorities of the
Mérida Initiative in Mexico, which include further securing the southern US border and
supporting the militarization of the drug war in Mexico, have come under significant
criticism because of their lack of any measures to reduce demand for drugs or supply
of illegal weapons (Abbott 2011, 7). Furthermore, only 15 percent of the funding was
dependent on Mexico meeting human rights standards (ibid., 8).
Despite the multi-year, multi-national and multi-billion dollar intervention to combat
drug trafficking, violence in Mexico remains at a humanitarian crisis level. The number
of homicides in 2012 was more than three times that of 2007. Following the succession of
Enrique Peña Nieto as President of Mexico in December 2012, initial data indicated nearly
the same level of violence in the first seven months of 2013 (Molloy 2013). The escalation
of the drug war in Mexico has had a brutally predictable effect: Mexican people have fled
the country and sought protection in the United States, Canada and elsewhere.

Asylum Claims Brought by Mexican Citizens in the United

States
US asylum claims are considered in two different ways. An individual may apply for
asylum affirmatively if they have never been apprehended by immigration officials. In this
process, the claimant files an application with the US Citizenship and Immigration Services
(USCIS) Asylum Office within one year of entry. Affirmative asylum seekers are given a
non-adversarial interview with an asylum officer. Individuals who have been apprehended
by immigration officials and placed in removal proceedings must apply “defensively.”
Under this process, the claimant files an application with an immigration court and has a
hearing before an immigration judge.
The defensive process also applies to individuals who request asylum at or near a port of
entry or border. Persons apprehended at or near the border or who are stopped at a port-
of-entry face “expedited removal” unless they state an intention to apply for asylum or
express a fear of return to their country or origin to a Customs and Border Protection (CBP)
official. CBP must refer persons who satisfy this initial requirement to the Asylum Office
for a “credible fear” interview. In this interview, an asylum officer determines whether
there is a significant possibility that they could establish eligibility for asylum before an
immigration judge. If the claimant meets the credible fear standard, the case proceeds to a
removal hearing in immigration court where the claimant can apply for asylum.
Earlier studies have pointed out the low Mexican asylum filing numbers and approval rates
during the early years of the drug war, as well as extremely high numbers of withdrawn
asylum claims (Kerwin 2012, 25). In 2013, the rate at which all asylum seekers withdrew
their cases was 17.5 percent, while the rate for Mexican asylum seekers was 30.8 percent
(EOIR 2014a, 2014b). It is difficult to account for this discrepancy precisely, but it is
likely that some of the difficulties (described below) which Mexican asylum seekers face
in going through the system also function to pressure them to withdraw, including long
and arbitrary periods of detention, lack of representation in high density areas and waiting
years for hearings in non-detained courts due to backlogs. The withdrawal rate might also
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be disproportionate for Mexican nationals for unrelated reasons like their ability to pursue
immigration status through an alternative path.
In 2013 Mexico was the second highest asylum seeker producing country, behind only
China (EOIR 2014b; UNHCR 2014). Some asylum denials can be attributed, in part,
to narrow legal standards and the difficulty of sustaining claims based on the extortion,
kidnapping, and homicides by criminal organizations (Buchanan 2010). Still, despite
the dramatic increase in violence in Mexico, the grant rate for Mexican asylum claims
adjudicated in immigration court plummeted from 23 percent to nine percent between 2008
and 2013, and these numbers were, in turn, dwarfed by the numbers who withdrew their
claims (EOIR 2013, 2014b).4
Some commentators have attributed low approval rates to the political, military, and
economic ties between the United States and Mexico, and what they view as bias against
Mexican asylum seekers reflected in political discourse, public opinion and media reports
(Campos and Friedland 2014; Burns 2011; LCCREF 2009). Asylum determinations are
strongly influenced by country conditions and human rights violations in sending countries
(Salehyan and Rosenblum 2008). The asylum claims of citizens of US allies have
historically been more difficult to win than the claims of nationals from US government
foes or ideological opponents (ibid., 106). Asylum seekers from US trading partners have
also had lower grant rates historically.
Recent political attacks on asylum seekers, particularly those subject to “expedited
removal,” have focused on Mexicans and Central Americans (Campos and Friedland
2014). Politicians and media outlets have spoken out against Mexican asylum seekers,
calling them criminals and their asylum claims fraudulent (La Jeunesse 2013). In response
to a Fox News article in August 2013 claiming that Mexican asylum seekers are “gaming”
the US immigration system, US Senator Jeff Sessions (R-AL) stated that the ability to seek
asylum at the border was destroying border enforcement. He went on to say:
[W]hat we should say is, “Mexico is not a country that is persecuting people.” It’s
a democracy and if anybody claims they’re being persecuted, we ought to call the
Mexican government and have them come pick them up and protect them from
persecution. How in the world can we determine if someone deep in Mexico has had a
run-in with a drug cartel? (Poor 2013)
These viewpoints have no explicit or formal influence over the asylum system, but they
may well influence immigration judges. Indeed, a growing body of empirical research on
disparities in asylum grant rates has found strong evidence of country-specific adjudicator
bias in the determinations of asylum officers and immigration judges (Rajmi-Nogales,
Schoenholtz, and Schrag 2007).

4   A defensive asylum application is one that is filed with an immigration court after a noncitizen has been
placed in removal proceedings. The immigration court grant rate presented in this paper is calculated as a
percentage of all asylum claims decided in court for Mexican asylum seekers on the merits (i.e., grants and
denials). Not all asylum cases decided in immigration court originated as defensive claims. If an affirmative
claim for asylum is not granted, then the case is referred to the immigration court. The grant rate statistics do
not reflect the high rate which Mexican asylum seekers withdraw their cases.
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 Problems Faced by Mexican Asylum Seekers in the United States

The Asylum Process

The following sections describe the experience of Mexican asylum seekers at various
stages of the asylum process.

Entry
Recent focus on comprehensive immigration reform has cast renewed attention on
unauthorized migration. Many asylum seekers from Mexico enter the United States without
authorization, but an increasing number simply go to the nearest port of entry to ask for
humanitarian protection. The Department of Homeland Security (DHS) reported that in
the first three quarters of FY 2013 there were more than 14,000 credible fear claims at the
border, in contrast to just under 7,000 for the whole of 2011 (Skoloff 2013). This section
addresses how asylum procedures at the border disadvantage Mexican asylum seekers.

Defensive versus Affirmative Proceedings

A significant systemic problem that Mexican asylum seekers face at the border is that
they are placed in defensive, and not affirmative, asylum proceedings even if they have
no criminal or immigration history. This broad rule disproportionately affects Mexican
asylum seekers because of the large numbers of Mexicans who seek asylum in this manner.
Defensive proceedings take longer than affirmative ones. Defensive proceedings are more
arduous and much more difficult to navigate without counsel. Defensive proceedings also
expend more of the government’s time and resources. A fairer, less burdensome process
would simply place asylum seekers at the border in affirmative proceedings. Asylum
seekers with criminal histories or other potential bars would be transferred to immigration
courts and there would be no greater risk of fraud than is already present in the system.

Interview Procedures
Persons seeking admission to the United States who express a fear of return to their country
of origin are interviewed by CBP officers about their claim for asylum. Mexican asylum
seekers in this situation are often fleeing recent, traumatic events. The humanitarian crisis
in Mexico has hit the border areas particularly hard. The safest, closest place of refuge is
often the United States for persons fleeing violence and many asylum seekers are able to
reach the border within hours of experiencing violence and persecution. When an individual
suffers trauma or violence, their ability to communicate and remember what happened to
them is naturally interrupted (Chaudhary 2010). CBP interviews occur under oath, are
documented and asylum seekers must attest to their accuracy. Once an asylum seeker has
been released or detained, a USCIS asylum officer administers a credible fear interview
usually via videoconference. Neither of these two interviews is recorded verbatim. They
are both paraphrased or summarized by the officer who conducted the interview.
Interview procedures, which entail detailed statements, often lead to denied asylum claims
based on credibility. This issue is discussed in more depth in the section on adjudication in
immigration court. While immigration officials need to secure information from persons

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seeking protection, the interview process often prejudices the asylum seeker without
benefiting Immigration and Customs Enforcement (ICE) or CBP. Eliminating repetition,
being more sensitive to the psychological state of the interviewee, and removing the
pressure of attesting to the complete accuracy of the statement, would benefit the process
and lead to fairer and more informed decisions under the law.

Language and Literacy

The interview procedures further jeopardize the rights of Mexican asylum seekers who are
illiterate or whose first language is not Spanish. Written documents are a central part of the
border procedure, and illiterate asylum seekers are frequently pressured to sign documents
without receiving a full explanation. This includes notes documenting their own interviews
which have not been read back to them and which they have not had the opportunity to
correct.
Indigenous Mexican asylum seekers are at a significant disadvantage. Typically, members
of indigenous groups in Mexico grow up speaking an indigenous language while only
having a rudimentary understanding of Spanish. Many CBP officers speak Spanish, but
often neglect to provide interpretation services, as required, for non-Spanish speakers.
When indigenous Mexicans ask for asylum, CBP officers frequently interview them in
Spanish, leading to miscommunication between the border official and the asylum seeker
and inaccuracies in the recorded interview.
Asylum seeker R.M., for example, had the misfortune of being both illiterate and a non-
native Spanish speaker. She crossed into the United States without documentation and
was apprehended and interviewed by a CBP officer. Despite the extreme difficulty she had
speaking and understanding Spanish, the officer did not secure an interpreter to conduct
the interview in R.M.’s native language. Before the interview started, the officer failed to
explain to R.M. her rights as required in a way she could understand. In the interview notes,
the officer made significant mistakes, often using answers given by other members of the
group with which R.M. was found, not her own group. At the end of the interview, the officer
did not read the notes of the interview back to R.M., yet nonetheless made her attest to their
accuracy. R.M. knew how to write her name, but not her initials, so the officer wrote her
initials on a scrap of paper, and R.M. painstakingly wrote them at the bottom of each page
of notes without knowing what the notes contained. At her immigration court proceedings,
the government attorney raised the issue of inconsistencies between her testimony and
the CBP transcript, leading the immigration judge to question her credibility. Providing
interpretation services, greater oversight of CBP interviews, and verbatim transcripts of
interviews would prevent bona fide refugees from being denied status.

Rights Violations
It is difficult to estimate the number of asylum seekers who have been illegally turned
away at the border since this information has not been collected systematically. However,
legal practitioners have reported that some asylum seekers have been threatened with
incarceration and separation from their family at the time they make a protection claim,

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while others have been turned away by CBP officers who have told them that “the United
States is full.” These responses highlight a disturbing fact: border agents have complete
authority over asylum seekers at the point of entry, and violations are extremely difficult
to remedy.

Detention
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
created the “expedited removal” system, which provides immigration officials with the
authority to remove summarily noncitizens who they encounter at or near the border who
lack proper documents (Kerwin 2012; Keller et al. 2005). To prevent the summary removal
of persons with bona fide protection claims, migrants who express a fear of returning to their
country of origin are entitled to a credible fear interview.5 During this interview, an asylum
officer asks a set of questions to determine whether there is a “significant possibility”
that the migrant can demonstrate a fear of persecution on account of one of five grounds:
race, religion, nationality, political opinion, or membership in a particular social group.6
Immigrants in expedited removal proceedings are subject to mandatory detention, but those
who are deemed to have a credible fear can be considered for release. A 1997 Immigration
and Naturalization Service (INS) memorandum provides that “parole is a viable option and
should be considered for aliens who meet the credible fear standard, can establish identity
and community ties, and are not subject to any possible bars to asylum involving violence
or misconduct.”7
Although asylum seekers who are found to have a credible fear may be released from
detention, the standards for release are unreviewable and discretionary. This means that if
an immigration officer feels that an asylum seeker is a flight risk, he or she can continue to
be detained and the decision is not appealable. Legal service providers on the border have
observed the frequent practice of selective detention for Mexican families whose members
meet the credible fear standard and have no immigration or criminal history. A common
scenario is to detain the father, but to release the rest of the family, which makes it very
difficult for many families to sustain themselves and remain intact throughout the asylum
process. Though the non-detained adult family members may be able to secure work
authorization, they frequently must care for young children and have fewer opportunities
to secure employment than the detainee would.
Additionally, detained asylum seekers along the border are much less likely to be able to
secure legal representation. Not only is it difficult to afford representation, but immigration
attorneys and organizations on the border are flooded with far more asylum seekers than
they can represent. As numerous studies have demonstrated, asylum seekers with legal
counsel prevail in their claims at far higher rates than those without representation (Ramji-
Nogales, Schoenholtz, and Schrag 2007). The US Commission on International Religious

5   8 USC 1225(b)(1)(B)(5) (2004).

6   Section 235(b)(1)(B)(v) of the Immigration and Nationality Act.
7   Immigration and Naturalization Service Memorandum from Michael A. Pearson, Executive Associate
Commissioner for Field Operations, Office of Field Operations, to Regional Directors, District Directors,
Asylum Office Directors, Expedited Removal: Additional Policy Guidance, 30 December 1997, reproduced
in Interpreter Releases 75: 270 (1998).
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 Journal on Migration and Human Security

Freedom, for example, found that 25 percent of represented asylum seekers over a four-
year period who had been subject to expedited removal (arrested at or near the US-Mexico
border) received asylum, versus just two percent in unrepresented cases (Kuck 2005,
239).8 Thus, it might be more accurate to say that, without counsel, asylum seekers cannot
craft viable “claims.” Detention also negatively influences asylum approval rates (Kerwin
2004). Moreover, it concentrates asylum seekers in border communities. Families typically
do not move away from the border when a relative is in detention there. Mexican asylum
seekers, both detained and non-detained, are therefore heavily concentrated in the border
region. Given all of these factors, asylum seekers often withdraw or abandon their claims
and chose to return home even if they possess a genuine fear of return.
The United States should change its policy of discretionary release, and instead make
release the norm and require justification to keep persons found to have a “credible fear”
in detention. Problems associated with the standards for release from detention could also
be addressed by greater training of immigration judges and judicial review of custody
decisions in these cases.

Reasonable Fear Interview Procedures

If a noncitizen expresses a fear of persecution or torture but cannot apply for asylum due
to a removal order or a prior removal, deportation, or exclusion order that is reinstated,
they can apply for withholding of removal or relief under the Convention Against Torture
(CAT). In these circumstances, they are entitled to a reasonable fear interview, which is
a more rigorous standard but similar procedurally to a credible fear interview. However,
the timeframes in which the two interviews are conducted vary substantially. In 2012,
97.99 percent of all credible fear decisions were completed within 14 days (USCIS Asylum
Division 2012, Credible Fear FY 2009-FY 2012). Although the regulations require that
reasonable fear determinations take place within 10 days,9 the average time for a reasonable
fear decision in 2012 was 113 days (USCIS Asylum Division 2012, Questions and Answers).
Mexican nationals had the largest share of the reasonable fear decisions in every month
of 2012 (USCIS Asylum Division 2012, Credible Fear and Reasonable Fear Workloads).
The fact that Mexico and the United States share a border means that it is much more likely
that people seeking asylum from Mexico may have had a prior removal.
Because of the reasonable fear procedures, many Mexican asylum seekers often spend
months in detention before they appear before an immigration judge. During this time,
individuals cannot request a bond from a judge because they are not yet in immigration
court proceedings, and they have no avenue for discretionary release because they have
not received a reasonable fear decision. Asylum seekers, especially those who have been
persecuted or tortured by their own governments, often find detention to be intolerable.
Many suffer from post-traumatic stress disorder and detention re-traumatizes them. This
can lead asylum seekers to give up on a genuine claim. Furthermore, while asylum seekers
wait for a reasonable fear decision, they are not yet listed in the automated Executive
8   A 2008 study by the United States Government Accountability Office found that representation “generally
doubled the likelihood of affirmative and defensive cases being granted asylum,” after controlling for other
effects like nationality and immigration court location (GAO 2008).
9   8 CFR § 208.31(b).
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 Problems Faced by Mexican Asylum Seekers in the United States

Office for Immigration Review system, making it very difficult for legal service providers
to locate and represent them.

Access to Counsel
Despite the potential dangers of being deported to a country where they fear persecution,
indigent asylum seekers have not yet been determined to be categorically eligible
for government-funded legal counsel (Kerwin 2005). Difficulty accessing counsel is
exacerbated for asylum seekers in detention or expedited removal proceedings. Because
of the shortage of legal counsel, Mexican asylum seekers experience notario fraud at high
rates. In Mexico, a notario is a qualified attorney, whereas in the United States a notary
public is empowered only to perform such duties as to verify identity, make certified
copies, and administer oaths. The concentration of Mexican asylum seekers at and near the
border and the lack of affordable counsel leave them vulnerable to notary publics passing
themselves off as qualified attorneys. These notarios not only take money from Mexican
asylum seekers under false pretenses, but often do harm to their asylum cases which cannot
be remedied. Since notarios or people who claim to be notaries are not attorneys, they are
not subject to sanction by a bar association. In addition, it is often very difficult to convince
law enforcement to prioritize or even pursue any of these cases. Some jurisdictions have
made efforts to educate asylum seekers and to encourage reporting and prosecuting these
crimes, but these efforts need to be greatly increased. Additionally, the procedure for
remedying the harm to the asylum seeker’s case by filing a motion to reopen should be
simplified and expanded. Notario fraud should also be added to the list of crimes for which
an immigrant can get a “U” visa, a form of relief available for victims of criminal activity,
considering the dire consequences that can arise from it.

Legal Issues
Among many problems in US asylum law, there are two legal issues that specifically affect
Mexican asylum seekers: the particular social group standard for asylum claims and the
meaning of “acquiescence to torture” in Torture Convention claims when government
agencies and officials do not uniformly support torture.

Particular Social Group

The 1951 Convention relating to the Status of Refugees states that a refugee’s well-founded
fear of persecution must be for reasons of race, nationality, religion, political opinion or
membership in a particular social group.10 It is difficult for many Mexican asylum seekers
to prove that the persecution they fear or suffered fits within one of the five grounds,
though there are some cases, like those of human rights activists and journalists, which
fit squarely into the refugee definition (Harville 2012; Garcia 2011; Buchanan 2010).
However, a significant number of Mexicans seek protection because they resisted extortion
or recruitment by gangs or cartels, and US asylum law can be unwelcoming to people in
these situations (Uchimiya 2013). Particular social group claims under US law now require
10   1951 Convention Relating to the Status of Refugees, Art. 1(a)(2).
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 Journal on Migration and Human Security

particularity (a discrete, often smaller group) and social visibility to the wider community.11
These standards, which do not apply to any of the other grounds, make it more difficult to
prevail in these claims (Kerwin 2012).
Asylum seeker J.M. worked as an informant for the US Drug Enforcement Administration
(DEA) in Ciudad Juárez. After many years, the Juárez cartel discovered he was an informant
and he had to flee for his life. Despite his long service to them, DEA agents reneged on their
promise to assist him with an “S” visa, and so he applied for asylum.12 The immigration
judge denied his request for asylum saying that the proposed social group of informants
was not acceptable because the nature of an informant is to hide your identity and therefore
the social group did not meet the visibility requirement.

Acquiescence to Torture
Immigration attorneys representing Mexican asylum seekers often look to the possibility
of relief under CAT when asylum is not available to their client. Withholding or deferral
of removal under the Convention requires a showing that a person will likely be tortured
if returned to their country of origin. The torture need not be on account of one of the
enumerated grounds of asylum. Asylum requires that the persecutor either be the government
or an entity that the government is unwilling or unable to control. By contrast, eligibility
for CAT relief requires that the “pain or suffering” be “inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in official
capacity.”13
The most substantial barrier to CAT relief stems from the fact that governments, especially
in times of crisis, do not act monolithically. In Mexico, corruption is endemic and
frequently government agencies and officials work at cross purposes. US asylum laws
and regulations, however, do not explicitly instruct judges about how to address these
situations. Immigration judges sometimes become confused when, for example, municipal
police might be trying to prevent torture, but the army is perpetrating it. The situation can
become more obscure if the municipal police are trying to prevent torture, but the army
knows of torture and is acquiescing to it. In both of these situations, judges have denied
CAT relief on the basis that there are elements of the Mexican government that are trying
to prevent torture. Judges have said that because of the efforts of a discrete branch of
government, the “government” (as a whole) cannot be acquiescing to torture. In addition,
government perpetrators are often treated as “rogue officers.” The idea of a rogue officer,
in particular, is contrary to the US civil rights definition of acts “under color of law.”

11   See Matter of M-E-V-G-, 26 I. & N. Dec. 227 2014 WL 524499 (B.I.A. 2014); Matter of W-G-R-, 26 I. &
N. Dec 208 2014 WL 524498 (B.I.A. 2014).
12   “S” visas are awarded to immigrants who work as informants for US law enforcement agencies.
13   Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1.,
Dec.10 1984, 1465 U.N.T.S. 85, Art. 1., 8 C.F.R. § 208.18.
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Adjudication in Immigration Court

Once Mexican asylum seekers reach immigration courts, they confront additional barriers
in the form of lack of procedural rules, negative credibility decisions, and judicial notice
of country conditions in Mexico. Additionally, long delays in non-detained courts can
push Mexicans who apply for asylum affirmatively beyond the one-year filing deadline,
a procedural rule requiring that asylum seekers file their applications within one year of
arriving in the United States unless extraordinary or changed circumstances can be found
to warrant a delay.14

Lack of Procedural and Evidentiary Rules

Federal rules of evidence and procedure do not apply to the hearings of asylum seekers.
Immigration courts are adjudicatory entities, but not independent courts constituted under
Article 1 of the US Constitution. Though the Immigration Court Practice Manual and
the Immigration Judge Benchbook and other publications attempt to make procedure
in immigration courts uniform and predictable, those guidelines are not binding. The
Immigration Court Practice Manual says explicitly in the opening chapter that, “The
requirements set forth in this manual are binding on the parties who appear before the
Immigration Courts, unless the Immigration Judge directs otherwise in a particular case
[emphasis added]” (Office of the Chief Immigration Judge 2013).
There is no coherent set of rules for immigration courts. Immigration courts are not
bound by the strict code of evidence;15 instead, relevance and fundamental fairness are the
only bars to admissibility.16 The Immigration Court Practice Manual also states that for
detained individual hearings, filing deadlines are specified by the immigration court.17 This
procedural flexibility allows immigration judges to influence—for better or worse—the
outcome of asylum hearings. Denial of asylum based on unfair procedures is very difficult
to challenge at the appellate level.

Judicial Discretion Regarding Credibility Findings

In the wake of the REAL ID Act of 2005, the testimony of an asylum seeker “may be
sufficient to sustain the applicant’s burden without corroboration, but only if the applicant
satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers
to specific facts sufficient to demonstrate that the applicant is a refugee.”18 The ability of
an asylum seeker to corroborate a claim can be very difficult, especially if agents of that
government were involved in the persecution or torture. In addition, securing affidavits in
the mail from witnesses in war-torn countries can be extremely slow, if not impossible.

14   INA 208(a)(2)(B); 8 CFR 208.4(a)(2) and 1208(a)(2).

15   Matter of Wadud, 19 I&N 182 (BIA 1984).
16   Matter of Ponce-Hernandez, 22 I&N 784 (BIA 1999); Matter of Toro, 17 I&N Dec. 340 (BIA 1980).
17   Immigration Court Practice Manual, 3.1(b)(ii)(B); Perkins, Kevin L. and Anthony P. Placido. Testimony
before the US Senate Caucus on International Narcotics Control, 5 May 2010. http://www.fbi.gov/news/
testimony/drug-trafficking-violence-in-mexico-implications-for-the-united-states.
18   8 USC §1158(b)(1)(B)(ii).

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An immigration judge may consider a variety of factors when making a credibility

determination:
[T]he demeanor, candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements (whenever made and whether
or not under oath, and considering the circumstances under which the statements
were made), the internal consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the Department of
State on country conditions), and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart
of the applicant’s claim, or any other relevant factor.19
All of these factors can lead to denials. For example, the demeanor of an asylum seeker
might be misjudged by an immigration judge because of cultural differences or trauma. In
other cases, a judge might doubt the plausibility of particularly horrific treatment because
they have not heard similar stories or entertained similar claims in the past.
Many Mexican asylum seekers are in defensive proceedings either because they asked
for asylum at the border or asked for asylum after being apprehended in the United States
without immigration status. These individuals have had either a credible fear or reasonable
fear interview with an asylum officer, frequently by video conference. Almost all of them
have also had a long in-depth interview with a CBP official, either at the border or when
they were arrested. As noted previously, these first interviews frequently occur within days
or hours of an initial trauma that causes the asylum seeker to flee his or her home. This
means that there are two detailed accounts of what happened to the asylum seeker already
on the record before the individual asylum hearing. Under the REAL ID Act credibility
provisions, any inconsistencies between the statements, or the statements and the testimony
provided in court, can legitimately be used by the immigration judge to make a negative
credibility decision.
An applicant for CAT relief, D.T., fled from his home in Chihuahua with his family after
being shot in the arm by a member of the military. His wife had been beaten so badly that
she miscarried. The family fled to the US border and, from there, was taken directly to a
hospital where D.T. was cleaned up and given strong pain medication. He was then returned
to the border for his initial interview. In that interview he stated that the soldiers came to
his house in black trucks. D.T. was detained and his family was released, a not uncommon
outcome. He later received a reasonable fear interview where he said that he thought the
trucks were dark green and dusty, but it was hard to make out their color. Despite all the
other points of consistency in his statements and testimony, his medical records, and his
traumatized state when he gave the first statement, the judge used this specific discrepancy
to make a negative credibility determination and deny D.T. deferral of removal under CAT.
The CBP and USCIS practice of taking multiple detailed and sworn statements effectively
gives immigration judges broad discretion to deny claims. Few people can tell a detailed
story three times in the exact same way, especially when stressed, traumatized or injured, or
if the recitations are months or years apart. Inconsistencies naturally occur and the REAL
19   8 USC §1158(b)(1)(B)(iii).
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ID Act provisions give immigration judges free rein to use these inconsistencies if they are
inclined to issue a negative decision.
In cases where an immigration judge’s credibility decision seems unreasonable and derails
a client’s case, appealing to the Board of Immigration Appeals is not a viable solution. First,
immigration judges have broad discretion on credibility decisions. Thus, the immigration
judge in the case of D.T. was well within his rights to make that decision. Second, even
if the asylum seeker can present other evidence that buttresses his or her testimony and
can contradict a negative credibility decision, findings of fact (as on credibility) can “be
reviewed only to determine whether [they] are clearly erroneous.”20 Immigration judges
should be able to decide credibility based on a wide range of factors. However, the decision
should be reasonable, justified and subject to meaningful review.

Judicial Bias in Country of Origin Information

Empirical research on disparities in asylum grant rates has found evidence of country-
specific adjudicator bias (Rajmi-Nogales, Schoenholtz, and Schrag 2007). Country of
origin bias can be a particular problem for Mexican asylum seekers when it comes to
educating immigration judges about the situation in Mexico. Generally, it is difficult to
educate an immigration judge on country conditions because of the limited amount of
time that they have to commit to each case. However, asylum seekers from Mexico have
a different problem. Immigration judges in US-Mexico border communities often think
that they already know about conditions in Mexico because of its proximity. However, in
reality, many have only a passing, informal knowledge of the country. Immigration judges
need to be deliberately and thoughtfully educated about the situation in Mexico so that
incomplete or inaccurate information gained from the media or other less reliable sources
is not the context for their decision making.

Backlogged Immigration Courts

Another problem for defensive asylum seekers is the massive backlog of cases in immigration
courts. According to the Transactional Records Access Clearinghouse, cases have been
pending in immigration court for an average of more than 500 days (TRAC 2014). In El
Paso, Texas, initial master calendar hearings—case status hearings which take place before
the hearing on the merits—are being scheduled up to four years into the future. Though
Mexican asylum seekers who are paroled into the United States can obtain work permits
immediately under the “paroled in the public interest” category, those who are released on
their own recognizance or are bonded out of detention have to wait for years without being
able to file their asylum applications and start the clock for employment authorization as
asylum seekers. Additionally, people have to live for years in limbo while they wait for
their cases to lumber through the immigration courts.

20   8 C.F.R. § 1003.1(d)(3)(i) (2011)

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Conclusion
Mexican asylum seekers on the border encounter procedural, practical, political and legal
barriers to asylum from the time they encounter immigration officials until a determination
is made on their claim. As a result, Mexican asylum claims are weeded out and few are
granted. Low US asylum approval rates for Mexicans persist despite a significant quantity
of filings from 2008 to 2013, over which time period an estimated 120,000, and possibly
more than 130,000, people were killed as a result of the drug war (Molloy 2013). In the
midst of a humanitarian crisis in Mexico, the United States should take particular care to
live up to its obligations under international law and make its asylum procedures fair and
consistent in these cases.

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