U.S. denying sanctuary, sending cartel victims home


Bodies stack up in morgues like this across Mexico. This one is in Juarez, Mexico in February 2009. AP

By Todd Bensman

In the heat of an August day last year, 10 masked cartel gunmen roared aboard SUVs onto a street in a working class Juarez neighborhood. Four people soon lay dead amid spent AK-47 shell casings.

Two were brothers who lived with their families a few houses apart and earned extra cash as neighborhood marijuana pushers, court testimony would later show. A third victim that day was the 16-year-old son of one of the brothers, a fourth an unrelated bystander.

The gunmen issued a chilling departing vow: They’d soon return to finish off four more sons of one brother. Their newly widowed mother heard about a quick legal way out: political asylum in America.

Once over the Paso del Norte pedestrian bridge in El Paso, mother and sons, ages nine through 22, joined a growing number of Mexicans petitioning for U.S. asylum as permanent haven from the narcotics traffickers besieging Mexico.

But federal immigration judges have denied them all sanctuary and are, one of their attorneys says, “sending them back to their deaths.” Two deported sons are hiding out in drug-war savaged Juarez, where murders are surging despite a military deployment.

Their mother and two brothers are awaiting a last-ditch appeal to learn whether America will send them packing too.

“(He) is a 9-year-old boy!” Pennsylvania immigration attorney Craig Shagin, who is handling the case, said about the youngest son. “They’re going to take this perfectly adorable kid and throw him back into hell? From a humanitarian point of view, this is really hard to watch.”

The family’s asylum cases and interviews with six immigration lawyers handling others show that more Mexican refugees fleeing cartel violence will soon be sent back. It’s difficult to know how judges are ruling because asylum records are not public for security reasons. But the lawyers report steep losses and few wins amid different and evolving interpretations of asylum law as it applies to Mexicans.

They say homeland security officials in some jurisdictions are aggressively opposing Mexican claims to avoid triggering a system-clogging flood of asylum petitions.

“The government is fighting them tooth and nail,” said El Paso lawyer Carlos Spector, who has lost several cases, including one by a police officer who arrived in El Paso with eight fresh bullet wounds. Spector said his four other cases are drawing unusually robust government attention.

U.S. Immigration and Customs Enforcement officials declined repeated requests to discuss the agency’s stance on Mexican asylum seekers. Their oral courtroom arguments are rarely committed to paper.

But private attorneys facing off with ICE attorneys say they’re throwing up two main arguments: One is that the asylum statute as written doesn’t apply to victims of crime - only certain victims of political oppression, ethnic strike or civil unrest who can’t count on government protection. In the one brief statement for this story, ICE alluded to how it interprets the asylum statute.

“The men and women of ICE have a sworn duty to uphold U.S. immigration law,” the statement said. “as it is written.”

The other main government argument, known in immigration law circles as “internal relocation,” holds that victims don’t need U.S. haven because they can simply find it elsewhere within Mexico.

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.

At stake is life and limb.

Found in Juarez last month, the two brothers who fled Juarez with their mother and younger siblings last summer emerged from a house where they’ve been laying low since their April deportations. Just a few doors away the night before, masked gunmen in an SUV cornered three young men who’d been walking down the street.

The gunmen forced all three to kneel, and then executed only the young man who had the same last name as the brothers, witnesses said. A stones throw away, the brothers said they felt embittered toward the U.S. for throwing them back into the line of fire.

Immigration authorities “treated us very badly. They gave us a completely racist treatment,” one of the brothers told the Express-News on condition their identities be withheld. “People know about the United States’ policy regarding political asylum, and we know that policy is not going to change.”

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 and membership in a particular social group. They should also be able 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, Christian Iraqis forced from homes by militant Islamists, and Darfur minorities attacked by armed Sudanese government groups. But few Mexicans are ever granted asylum, government statistics indicate.

Judges have typically granted 50 or 60 a year since 2000 while total petitions ranged between 2,000 and 3,000.Asylum applications have shown an upswing since President Felipe Calderon declared war on the country’s drug cartels in 2006.

Last year, for instance, 3,229 applied compared to 2,641 in 2006, according to Executive Office of Immigration Review statistics. Some 896 Mexicans applied for asylum between January and April this year, compared to 586 for the same period in 2006.

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 ways to stretch the definition of one of the five categories – “social group” - to cover their clients.

“The government is basically saying they don’t fit into any of the categories,” said Eduardo Beckett, managing attorney of the Las Americas Immigrant Advocacy Center in El Paso, which represented two of the Juarez family members who fled. His organization also has lost or had to abandon five other asylum cases and has five others.

Several immigration law specialists say the statute originally defined social group as encompassing sexual orientation, skin color, kinship ties and other “immutable characteristics” that people can’t readily change. Now, lawyers arguing for Mexican drug war refugees say subsequent case law has expanded the definition to mean specific families and people sharing social connections through professions or business.

Still, judges and courts are all over the map about what constitutes a social group. Some have accepted whistleblowers on government corruption and wealthy cattle farmers, while other courts have rejected as social groups government employees and secret informants.

Bruce Einhorn, a retired immigration judge who co-wrote the 1980 asylum statute, said judges weighing Mexican asylum cases have the discretion to accept a proposed new definition, or fall back on a literal reading of the statute, which doesn’t cover crime victims.

“It isn’t because they’re unkind, but ..... some of them view the statute very strictly,” Einhorn said. “I happen to think it’s more important to apply to law with compassion and humanity. Judges should be taking a very liberal view. ”

Einhorn said there’s no political will to amend the asylum law right now to cover crime in part because “that could mean a significant chunk of a nation could flee.” Other legal analysts agree.

Unless the law is amended by an act of Congress, Mexican drug war refugees can only hope to draw an empathetic judge willing to risk appeal for humanitarian reasons — and that ICE doesn’t appeal those favorable decisions.

Asserting that organized crime victims can be members of a social group has not met with much success in other similar cases involving Latin America, an examination of court appeals shows. For instance, judges in the 1990s began rejecting asylum petitions filed by Salvadorans who claimed they formed a special group needing protection from the "Mara Salvatrucha" gang, or MS-13.

Last year, in S-E-G versus U.S. Department of Justice, the Board of Immigration Appeals upheld a judge’s ruling that Salvadoran youths from one family targeted for forcible recruitment by MS-13 did not form a particular social group and wasn’t eligible for asylum. The panel held that any qualifying social group has to stand out in a “socially visible” way from the general population, and the Salvadoran family didn’t.

The Express-News was able to verify only one granted asylum petition in Texas. U.S. Immigration Judge David Ayala of Harlingen granted it three years ago to a kidnap victim who ran for the U.S. border after a $250,000 ransom secured his release.

The man’s lawyer, Anthony Matulewicz, argued that his client belonged to a social group, it being a wealthy class of merchants. Judge Ayala accepted the definition. But Matulewicz said he believes he won because the judge, being so close to the border, was compassionate and understood the widespread horrors of drug cartel abuses.

“You almost have to put the judge on the spot,” Matulewicz said. “Present the case in a way that’s going to break the judge’s heart. I had a good judge but I also had the facts.”

One Seattle immigration lawyer, Henry Cruz, found success for a Mexican client this year with a strategy that runs against the grain. Cruz won residency for his client claiming protection under the United Nations Convention Against Torture.

Immigration lawyers and independent legal experts alike usually dismiss the convention because it applies only when governments persecute. Yet Cruz won in a Denver court by arguing the cartels had, in effect, taken over local government institutions in Matamoros.

“It’s an up and coming argument that people will have to start using more often,” Cruz said.

‘Fear, just real fear’

The asylum cases involving the Juarez mother and her sons offers a rare glimpse into the government’s legal thinking – and the real world consequences.

After the family surrendered to American customs agents last summer, the two older sons were detained in El Paso pending the outcome of their cases. Their mother and two minor brothers were sent to a family detention center in Pennsylvania to pursue a separate claim.

Ed Beckett, attorney for the El Paso brothers, argued in part to U.S. Immigration Judge William Abbott that the brothers qualified for asylum because they belonged to an identifiable, targeted social group the government couldn’t protect – their own family.

But Abbot, in his final oral ruling in February, citing the MS-13 ruling from last year, concluded that family wasn’t a qualified social group because its members didn’t stand out from any other potential victim in Mexico, according to Beckett’s notes. Beckett said this line of legal thinking automatically excludes average people like the clients he gets.

“What’s happening in my cases is that most of my clients are not famous or the sons of former presidents,” he said. “It means if you’re not famous or well known, you’re a nobody.”

Judge Abbot also said he believed the family could safely relocate elsewhere in Mexico.

Across the country in York, Pa., a similar legal fate unfolded with their mother and two younger brothers. The family’s attorney there, Craig Shagin, argued they formed a protected social group, targeted by a cartel and left unprotected by government.

But Immigration Judge Andrew Arthur ruled there was no evidence the family was a social group that stood out as more threatened than anyone else in Mexico. He too ruled the family could safely relocate to safer environs elsewhere in Mexico, according to a transcript.

“The court notes that Mexico is a country of over 100 million people, and that the respondent could relocate anywhere within that country and reasonably do so with family members in her hometown,” he said.

The ruling angered Shagin.

“There is no safe haven in Mexico; it’s a fiction,” he said. “The people in the country can’t figure out who is and who isn’t working for the dark side.”

Last month, an immigration appeals panel upheld the judge’s ruling. Deportation orders were issued. Shagin has staved them off by filing another appeal with the U.S. 3rd Circuit Court. If he loses, and his client wants to wait in detention, he could appeal to the U.S. Supreme Court.

The mother declined to be interviewed. But Shagin said that when consulting with her he senses “fear, just real fear, a feeling of ‘what do I do if we go back?’ You hear them sighing all the time, not wailing and crying, just completely at a loss as to what to do and a feeling of desperation. To me, it is very sad.”

Her two sons already on the ground in Juarez say they are so riven by fear they rarely leave the house where they’re holed up. The month of June brought the number of murders for the year to 886, up nearly 70 percent over the first six months of last year, the newspaper Diario reported. Last year, Juarez’s murder rate by far led the nation with 1,607 killed.

The brothers believe the cartels never forget an enemy and could turn them into a statistic at any time for whatever their father’s sin was.

“They have killed innocent people who were not involved (in the drug business) and they threatened to finish off all of us,” one said. “That’s why we are scared.”