At a border post in El Paso, he filled out immigration paperwork, made a formal request for political asylum—and was taken directly to jail.
The Juarez policeman is part of a new breed of would-be refugees—business owners, law enforcement officers, journalists and other professionals—on the run from Mexico’s vicious drug wars. Increasingly, they are seeking safe haven in the U.S. by filing for asylum.
The number of asylum requests filed at U.S. border entries by Mexican nationals nearly doubled to almost 200 in the last fiscal year, and the pace has increased this year. Seventy Mexican asylum-seekers filed petitions in the first quarter, most of them in El Paso and San Diego. The figures are small compared with the vast scale of illegal immigration, but many fear explosive growth if the bloodshed worsens.
Mexico Torture Claim
In late December 2008, the nation’s highest administrative body for immigration law, the Board of Immigration Appeals, remanded a case to a lower immigration court in Harlingen, Texas, finding that a Mexican man initially denied safe haven in the United States had in fact made a valid case that he likely faced torture, or even death, if he returned to his native country. According to court records, the man, who lived in Matamoros, Mexico, across the border from Brownsville, Texas, fled to the United States after being abducted by local police, repeatedly beaten and threatened for refusing a neighbor’s request to store drugs and weapons in his home. He asked to be allowed to stay in the United States not as an asylee, but under a United Nations treaty, known as the Convention Against Torture, or CAT. An immigration judge denied his request, which he appealed.
Henry Cruz, a Seattle-based attorney who represented the Matamoros man’s appeal to the immigration board, said the unpublished decision, which doesn’t set legal precedent, could nonetheless open more claims for people in similar situations.
“This represents a new area in asylum, and CAT-related relief when it comes to drug violence,” Cruz said. “It’s significant that the board was pointing out the increase in violence along the border.” The man’s case is still pending.
Download the Board of Immigration Appeals decisionDrug violence in Mexico has claimed at least 7,000 lives in little more than a year, most of those deaths along the border and many of them carried out to maximize their gruesome impact. Mass killings and beheadings have had a terrorizing effect on border towns from Texas to Tijuana.
It is unclear whether any asylum requests have been granted in cases based on fear of drug violence. Most of the recent cases are still working their way through the system. Some refugees from the narco-wars are hiding on the U.S. side of the border, uncertain whether to apply for asylum—and risk being deported if their petitions are denied.
“We’re at the beginning of the problem,” said Bruce J. Einhorn, a retired immigration judge. “It’s indicative of a new and emerging class of persecuted people from Mexico.”
The surge in applications has heightened debate about how broadly to interpret asylum rules and whether to detain applicants while they wait for their cases to be decided.
Asylum-seekers are among the most desperate people confronting immigration officials. Deporting them to their homeland can be a death sentence. But under U.S. law, fear of criminal violence is not recognized as grounds for asylum.
Applicants must show that they are members of a social, political or other group targeted for persecution—a difficult standard to meet. Asylum requests are usually associated with people fleeing civil wars or dictatorships.
Mexican applicants generally do not claim to be victims of government persecution. Rather, many argue that Mexican authorities have failed to protect them from the drug cartels—a hard-to-prove variation on the established criteria for asylum.
The applicants are not immigrants in search of economic opportunities. They are typically middle-class, employed and frightened.
“It’s very hard to accept that I can never return to Mexico, but that is the lamentable reality,” said Emilio Gutierrez Soto, a regional newspaper reporter for El Diario in northern Chihuahua state who has an asylum request pending.
Gutierrez said his troubles began with a series of articles he wrote that were critical of the Mexican military, which is leading the country’s anti-drug efforts. After a death threat, Gutierrez said, he headed for the border with his 15-year-old son. He left behind a home and career.
Like the wounded police lieutenant, the Mexican journalist was jailed immediately in El Paso by U.S. authorities. All asylum-seekers arriving at border posts face detention. Gutierrez’s son was sent to a juvenile detention facility but later was released to relatives.
The case has prompted advocates for immigrant rights to approach the Obama administration with renewed appeals to allow such asylum-seekers to remain free while they await rulings on their applications. Journalism groups also rallied to his defense, and Gutierrez was released unexpectedly in January after seven months in custody.
“I was prepared to stay in jail as long as it took, since I know I’m a dead man in Mexico,” Gutierrez said in an interview. He and his son have been reunited and are living with family members in the U.S.
Juarez police Lt. Hernandez, however, abandoned his asylum bid and returned to Mexico, according to El Paso attorney Carlos Spector, who represented him.
“People, especially policemen, just get tired of being in jail,” Spector said.
Hernandez could not be reached for comment. His former lawyer believes he is in hiding in Mexico.
The increase in applications has prompted heightened federal scrutiny of asylum petitions.
“The agency has been paying closer attention to the issue of Mexico’s drug-related violence,” said Jedidah Hussey, deputy chief of the asylum division for U.S. Citizenship and Immigration Services.
Einhorn predicts that asylum requests have yet to peak. The retired immigration judge, now a law professor at Pepperdine University, said the boom in applications “will probably get more intense and busy before it lessens.”
He also said he expected evidence of drug-related violence against Mexican citizens eventually to be persuasive to officers and judges.
“A credible argument can be made that these individuals are unable to obtain protection from . . . the government of their country,” Einhorn said. That could make them arguably eligible for asylum, he said.
Some experts caution against expanding the grounds for asylum to accommodate those fleeing the drug violence.
“Clearly, if we start granting asylum to Mexicans, it could start a real flood of applicants, even from people with no plausible case,” said Mark Krikorian, executive director of the nonpartisan Center for Immigration Studies in Washington, which seeks tighter enforcement of immigration laws.
Already, Mexico’s drug havoc has generated warnings of a looming humanitarian crisis.
In December, Barry R. McCaffrey, former U.S. drug czar and a retired general, raised the prospect of “millions of refugees” if Mexico failed to curb lawlessness. The previous month, the U.S. military’s Joint Forces Command cited the potential threat to U.S. security of a debilitated Mexican state. Some suggested that the U.S. might need to build detention camps and post troops to contain a potential flood of refugees.
However, a State Department official said such scenarios were overblown.
“What is happening is people along the border who have visas, who are middle-class, who are scared of the violence—you may see a larger number of those folks going to live on the U.S. side,” said the official, who under State Department guidelines could not be named. “This is a subset that is different from economic migrants coming into the U.S.”
Among the recent asylum petitioners is a Juarez mother of four whose husband, a drug operative, was gunned down gangland-style along with two other relatives. Her lawyer argued that she and her children were uninvolved in drugs yet remained potential targets of retribution killings, and were entitled to protection.
“We’re sending these people back to their deaths,” said the lawyer, Craig Shagin, who declined to identify his client to protect her and her family.
Last month, an immigration judge ordered the widow deported. In denying her asylum claim, the judge ruled that Mexico’s violence was widespread and didn’t specifically target her. She also had the option of relocating her family within Mexico, ruled Judge Andrew Arthur in York, Pa.
The woman is appealing the ruling. In the meantime, she is being held in a Pennsylvania immigration lockup with her two youngest children, ages 9 and 14.
In El Paso, officials say they are keeping an eye on self-declared drug-war refugees—for their protection.
“The El Paso Police Department knows who has taken asylum over here,” said Mayor John Cook. “We don’t publicize this or make a big deal of it, but we know who might become targets.”
Among the Juarez professionals who have fled is Jorge Luis Aguirre, a veteran journalist who founded the widely read website lapolaka.com.
The site’s amalgam of news tidbits and pointed musings is a must-read for Juarez politicos, business leaders and journalists. Last year, several postings questioned the drug-fighting resolve of Patricia Gonzalez, Juarez’s top state prosecutor.
According to Aguirre, threats filtered back to him, but he became especially alarmed after fellow reporter Armando Rodriguez of El Diario de Juarez was gunned down last November. Aguirre said that while he was en route to his fellow reporter’s wake, his cellphone rang.
“You’re next,” the caller said.
Aguirre, his wife and his three children packed their bags and entered the United States on temporary visas. Today, Aguirre publishes his site from hiding in El Paso.
He is mulling a bid for asylum once his temporary visa expires, but Aguirre worries that he could end up jailed, or worse, deported—a fate that, he is sure, would mean death.
“I was happy in Mexico; I never intended to leave, until they vowed to kill me,” Aguirre said in an interview at an El Paso cafe. “When they tell you that in Juarez, you better believe it.”
Read more from the Los Angeles Times special project: “Mexico Under Siege.”