Immigration reform is a hot topic recently. In spite of overwhelming rates of deportation and decreasing rates of entry, American conservatives stick to their guns, in spite of overwhelming evidence to the contrary, and allege that unauthorized immigration is a serious and growing problem for the country.
On the other side, there is growing pressure by those in the immigrant community to get President Obama to act on immigration, with the accusation that his deportation policies are destroying families. It is a position that has evolved after the protracted failure of Congress to enact immigration reform. While this position is a bit more credible – the president might be able to achieve some ends via executive order – the laws on the books are what should be challenged and revised since the laws Mr. Obama's administration are enforcing are not new. To achieve that examination of immigration laws, these activists need to convince many more voters to support their cause, a difficult task indeed.
No matter what side one stands on, it is clear that there are deficiencies within the immigration system. It is necessary to examine these issues if we are to create policy that benefits society as a whole.
Some of the limitations of the case law in deciding an asylum application are evident in the following vignette observed in a Texas immigration court recently.
Asylum is tricky. The statutes which govern whether or not asylum can be granted create a narrow range of discretion and possibilities. The judge mentioned to one of the attorneys inquiring about the scheduling timeframe of asylum hearings that recently many of the asylum claims had been withdrawn. Perhaps this was due to claimants’ understanding that threat from organized crime does not make a valid asylum claim.
“Harm alone is insufficient to grant asylum,” the judge told me. The law is narrow and considers that victimization from common crime is not sufficient grounds for granting asylum. A lot of people fail in their asylum claims because individuals have a responsibility to try to move internally to avoid their problems or they fail to satisfy some other requirement that the asylum law requires of asylum seekers. Congress has limited what can be considered and what is admissible. Applicants’ claims must be made on specific grounds and evidenced.
In short, to be granted asylum, individuals must establish that they face assured harm based upon someone hating their race, religion, political opinion (defined broadly as anything to do with governance), nationality, or membership to a specific social group. This last classification has been tricky, the judge said, but there have been a couple of recent Circuit Court rulings that have helped clarify what that means (the judge noted that they’ll be helpful as long as they aren’t challenged and rescinded).
Journalists have attempted to claim membership to a specific social group, but in order to do so, that membership has to be immutable. In theory, and in legal practice, journalists are viewed as being able to move internally within Mexico and to change their careers, characteristics which generally preclude them from consideration for asylum. Apparently, some former gang and organized crime members have argued that their membership does not expire with the end of their participation and they remain targets for life.
There is a clear process that asylum seekers must adhere to, the judge emphasized. First they must lodge an application to establish a prima facie case. The judge reviews the merits of that application and then makes a determination regarding an asylum hearing. At that hearing, the determination of whether or not asylum is to be granted is made after a further review of the presented evidence. In the afternoon session, the first part of this process played out.
A woman from Michoacán submitted an asylum application pro se (without a lawyer). She was perhaps in her late thirties and was the mother of children who were born in the United States. She sat in a big office chair facing the judge and listened into the headphones as the translator repeated what the judge said. In what was to be the longest hearing of the afternoon, the judge reviewed the application, correcting errors that he discovered. The first was an omission of a family address. The second was an examination of the claim itself. The woman had claimed asylum based on nationality.
“So you are Mexican, and you are claiming that because you are Mexican you will be harmed in Mexico? … that’s a first one on me.” After probing the reasoning behind this claim, the judge was able to determine that the woman was, in fact, arguing that because her children are American she would be a target for extortion. The judge told her that her claim of nationality was invalid and explained why. But, he also told her that she might qualify as belonging to a specific social group (mother of US national) and changed her application to reflect that.
The woman accepted the modifications without protest as the judge had explained to her why her claims as written were invalid. The judge continued asking questions based on the application. As the woman told her story to clarify the claim, she plainly stated that in Michoacán, where she is from and is a business owner, the Knights of Templar were attempting to extort her. They demanded money and threatened her and her children with physical harm if she didn’t pay.
The judge listened and sighed. Based on his interaction, it seems that the sigh was not the result of being upset or even doubtful of the woman’s statement, but was because he knew that her claim, irrespective of its veracity, fell outside the narrow scope established by congress.
He restated the problem to her: “In Michoacán, such organizations typically extort people and try to scare them with threats of bodily harm, and you have to pay them to be left alone.”
The woman agreed and said that in Michoacán most people, in fact, are victims of extortion. The judge then asked a series of questions related to the woman’s health, mental health history, further threats faced, and internal movement attempts in Mexico to evaluate if there were any other avenues available to her to lodge the claim of asylum. As she answered, it became more and more evident that there were no other avenues available within the law to her. She did not have a strong prima facie case, due in part to her failure to attempt to relocate in Mexico. (She chose the US as her safe haven because her family network was here. Thus, she had greater options in terms of setting up her life again and avoiding the threat of violence. Moving within Mexico was daunting, because the violence is everywhere and, on top of that, she would be in a place where she knew no one.)
Somewhat dejected, the Judge began to explain the limitations of the law and why he had to reject the claim for asylum.
“I know life is tough, especially for a woman of your age in Mexico. You are a victim of what we call common criminality – it is more vicious than when I was your age. But it does not make you a refugee.”
He went on to explain that random acts of violence and targeting by “common criminals” including gangsters and members of organized crime are not covered under the asylum statutes. He suggested that she try to find another part of Mexico in which to live and explained to her that if relocation failed she might (or might not) have a case. He empathized with her, saying that he understood the nature of the threat she faced.
“If you resist, they hurt you. If you don’t, they leave you alone, but not always. I understand that this problem might be endemic to all of Mexico. The criminal gangs feel immune to the police and so you may face the same problems somewhere else.” But, as a victim of common crime, he could not help her, the judge told the woman apologizing.
In parting, the judge offered hope – "I hear some encouraging stories out of Michoacán. It’s like the Wild West. One before my time, but it looks like people aren’t putting up with that criminality any more. Maybe there is hope."
Following the process, as the judge consistently had done throughout the day, he then told the woman what her options were – incorrectly and was immediately corrected by the government attorney.
The judge and the government council then decided, given the nature of her entry, that she did have the option to effectively withdraw her asylum claim and return to Mexico without penalty via voluntary departure, though she would lose her right to appeal. The woman accepted that outcome. She had twenty-eight days to leave the US without penalty whatsoever. When the hearing was over, she then asked for clarification to confirm what she understood – "So, by withdrawing my asylum application, I can just return to Mexico and apply for a visa?"
“That’s right,” the judge said. “It’s like you were never even here.”
Along the Texas-Mexico border, voluntary departure is a reasonable choice for Mexican nationals who can literally walk across the border. Internally, and perhaps for individuals who come from distant countries, the question of voluntary exit becomes more difficult, since not everyone can afford the cost of the trip home.
One question remains, however: if going back, even with your rights intact, means certain grave harm or even death before you can “wait in line” and come back legally, what kind of choice is that? As the law is written right now, I do not have to ask the judge to know that it is a question that does not concern the court.