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Asylum Denied: Only a fraction of Mexicans get U.S. asylum

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He and Beckett blame the difficulty of winning a case in court on several factors. For one, they say, U.S. immigration attorneys are far more aggressive battling asylum claims involving Mexicans than other nationalities.

"The government will put two attorneys on a case with a Mexican and just one for anybody else," says Spector. "And they appoint much more seasoned attorneys. There seems to be a real emphasis on them that, 'You don't lose these cases.'"

One of the most common reasons for denial that immigration judges invoke is that the asylum seeker can relocate within Mexico safely. But immigration attorneys point to mountains of evidence, in the form of news stories and U.S. government reports from the State Department and Drug Enforcement Administration, that the cartels are sophisticated billion-dollar criminal organizations that dominate local, and in many instances, national law enforcement. In other words, despite what U.S. judges might think, if drug bandits and their police henchmen want someone dead, there really is nowhere to hide. The key, then, is proving that they really want a person dead.

Campbell, who has testified at asylum hearings, believes immigration judges just aren't listening.

"It reminds me of the Mexican judicial system," he says. "That is, I gave these very plausible arguments and the prosecutor complimented me on my research and then the guy was deported. It just doesn't matter what you say. So it's not a matter of evidence, which is most troubling in many ways."

From 2006 through 2008, there was a steady increase in the number of Mexican nationals applying for asylum, rising from 2,793 to 3,459. But in 2009, the number of applications decreased 19 percent, to just more than 2,800.

Many argue that the decline is exactly what the U.S. government wants.

"There is an institutionalized policy of discouraging Mexican applicants by prolonged detention and serious resistance by government attorneys in immigration court," says Spector. "They don't deal with these cases like any others. They are trying to keep their finger in the border dike for as long as they can, and they want to send a message that if you go to the U.S. for asylum, you're going to get fucked. You are going to be detained and then denied. And it is clearly having an effect."

The unintended effect, however, may be the U.S. government's worst nightmare: additional illegal migration. The more often abused Mexican nationals are denied safe harbor, the more it makes sense for them to enter the country illegally, especially since remaining in Mexico may mean being murdered.

"Let's face it," says Campbell, "a lot of Mexicans have a naïve vision of American justice. Even though they hate La Migra, they think Mexico is a country of corruption, but walk across to the U.S. and everything works efficiently and fairly. And so they think, 'I'll do the right thing and apply for asylum.' And when they arrive, they're in for a rude awakening."
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Judges defend the low number of successful asylum applications from Mexicans by saying the specifics of asylum law make it difficult for them to grant claims. Just as immigration attorneys struggle with the requirement that asylum seekers must fit into one of the protected social groups, they say, so do judges.

"It's trying to fit people into those categories that makes Mexican asylum cases so much tougher," says Dana Leigh Marks, the San Francisco-based president of the National Association of Immigration Judges.

No matter how much a judge might sympathize with an asylum-seeker's plight, she says, a very strict reading of the law wouldn't offer much cover to Mexicans fleeing drug violence. There's no handbook telling judges that police, informants or journalists fleeing Mexican drug violence constitute a "social group" under the law — it's up to each judge to decide.

As a former defense attorney, Marks is an anomaly among the country's 237 immigration judges. Most of her colleagues started out as U.S. Immigration and Customs Enforcement prosecutors. Asylum attorney Carlos Spector believes this is a major reason why judges handle Mexican asylum cases so severely. In El Paso, for instance, Spector says three out of the four immigration judges are former federal prosecutors.

However, Marks says, "It's case by case — it's just not something that lends itself to mathematical certainty."

That flexibility can result in some incredible discrepancies in asylum decisions, as "Refugee Roulette," a 2007 study in the Stanford Law Review, made clear.

Three law professors studying four years of government data found that judges in the same district, deciding asylum cases from the same country, could turn up vastly different results: a judge in Los Angeles granted asylum to 9 percent of the Chinese applicants who came before him, while a colleague granted asylum to 81 percent of his Chinese applicants. Two judges in Miami differed on decisions regarding Colombian applicants, 5 percent for one, 88 percent for another.

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