While Recognizing the Danger the Mexican Cartels Pose to US Citizens, Trump Ignores the Same Danger Posed to Asylum Seekers Forced to Remain in Mexico

A few years ago, my cousin was looking forward to her first trip to Mexico.  I asked if she bought her kidnapping insurance yet. She laughed, but then noticed I was being serious. She looked at me and said “That’s not a thing, is it?”  I told her to look it up.  A few days later, she called me absolutely surprised that kidnapping insurance existed for people taking trips to Mexico.

I don’t mean to impugn all Mexican people.  But we cannot pretend that all areas of Mexico are safe. The sad reality is that criminal organizations known as the cartels dominate the northern areas near the border with the United States.  Their main goal is to profit off of the illicit drug trade with the United States.  But they have their hand in any potentially lucrative criminal enterprise.

As an immigration lawyer, when you listen to your client’s stories of how they braved the cartels, you instantly feel anger, sadness and admiration at the same time.  Anger that such powerful and dangerous forces of evil exist.  Sadness that living with this evil is the reality for people who just want to escape the violence of street gangs in their home country.  And admiration that your clients faced this evil, and survived.

A Central American migrant simply cannot plan to journey north without considering the hold the Mexican cartels have over illegal border crossings.  Typically, a migrant hires a guide, known as a “coyote,” to lead them on their journey.  The coyote supposedly knows the terrain and how best to navigate the many obstacles that exist before reaching the border.  But each coyote is associated with one of the Mexican cartels.  The cartels have the territory just south of the border carved out.  If a coyote strays into territory belonging to a rival cartel, it can mean extortion, and even death to those is his group.

But even traveling through the territory controlled by the cartel associated with their coyote is not necessarily a guarantee of safety.  Coyotes have been known to lead groups of migrants right into the hands of cartel members, armed with automatic weapons, who in turn beat, rape and rob the migrants just when they reached the border.  Female clients of mine have told me that they expect this, and for that reason start taking birth control pills before their journey.  Women who are naive have wound up pregnant as a result of the rape.  Indeed, it has been reported that cartel members hang the underwear of their rape victims on trees, called rape trees, as a sign of their power.

At times, the cartels will kidnap the migrants trying to seek safety in the United States.  They may hold migrants for ransom. They may force females to satisfy their sexual desires, and do the cooking and cleaning for the cartels.  They may sell the migrants into slavery.

President Trump recently recognized the danger present in northern Mexico because of the cartels.  After nine members of a family of US citizens were murdered by the cartels, Trump tweeted an offer of US assistance with cleaning up the cartels to Mexican President Andrés Manuel López Obrador.  

But while Trump recognizes the danger the cartels pose to US citizens (the victims of the cartel violence were related to Mormons who settled in Mexico after the Church of Jesus Christ and Latter Day Saints abandoned the practice of polygamy in 1890, and maintain dual Mexican-American citizenship), he ignores the same danger those cartels pose to Central American migrants he has forced to wait in Mexico while their asylum applications pens in US Immigration Court. 

Last Winter, the Trump Administration began its “Remain in Mexico” program, also known as the Migrant Protection Protocols or MPP.  Not wanting the migrants to stay in the United States while their asylum cases worked their way through court, Trump reached an agreement with the Mexican Government permitting asylum seekers to remain, temporarily in Mexico, only permitted into the United States when there were court hearings in their cases.  But the migrants would live in the very area of Mexico dominated by the cartels.

Already, it has been reported that migrants have been kidnapped by the cartels, as soon as they return to Mexico after a court hearing.  Nonetheless, keenly aware of the danger the cartels pose, the Trump Administration continues to force asylum applicants to face this danger, rather than permit the applicants to be released on bond within the United States.

As has often been argued, it is the cruelty of the Trump Administration towards migrants fleeing violence at home that is the point of the policy.  By demonstrating to potential migrants that the United States will compel them to live in dangerous situations while waiting for a decision on their asylum applications, which can often take years, the Administration hopes to disuade migrants from making the trip north. 

Whether such cruelty works as a deterrent to asylum seekers is questionable at best.  When the cruelty of ripping children away from their parents who crossed the border was the official policy of the Trump Administration, the number of Central Americans seeking the safety of the United States only increased significantly.  So far, in 2019, CBP statistics show a large increase of apprehensions at the border as compared to last year, despite the implementation of the MPP.

By:  William J. Kovatch, Jr.

Problems with Gang-Related Asylum Cases

Gang related asylum cases present one of the biggest challenges to immigration attorneys. But they also represent one of the largest categories of asylum claims.

Many times, clients and prospective clients come into the office with the expectation that because they were victims of gang violence in their home country, that they should receive protection in the United States. But this is rarely the case.

As many immigration judges are quick to point out, asylum law is not meant to grant protection from general criminality. To receive asylum protection, and applicant must have a reasonable fear of persecution based on one of the five protected reasons. They are: race, religion, nationality, political opinion, or membership in a particular social group.

Often, advocating for a gang related asylum case involves trying to place the applicant in some particular social group. However, this category is not meant to be a catchall category. As recent case law has demonstrated, the group cannot be defined as being too large as to include a broad segment of society. There must be some boundary to the group. There must be something about this group that sets it apart from the rest of society. And the members of this group must see themselves as some kind of social unit.

Add to the complication the fact that there are 12 different federal circuits who review immigration court decisions. The result is great variety and what is an acceptable particular social group.

Young men who have been recruited by the gangs, but who have resisted such recruitment, for example, has been recognized as a viable particular social group in some circuits. But other circuits reject the category. Likewise, witnesses providing testimony against gang violence has been recognized by some circuits, but rejected by others.

This patchwork of decisions addressing what makes up a particular social group when it comes to gang-related violence has created a rather peculiar situation. Family ties are recognized as a valid basis upon which to build a particular social group. Thus, it is possible that family members of a person targeted for gang violence may qualify as a particular social group, while the person who is actually targeted for the gang violence will not qualify for asylum protection.

What is clear however is that the victims of the gang related violence need to establish some reason why the gang has targeted them, that sets them apart from the rest of their society. This can often be difficult for applicants who come from gang ravaged countries, like those of Central America.

One way around this problem is to make the claim that the applicant is being persecuted because of an imputed political opinion. Gangs in Central America at times operate much like governments. They control particular territories, charge taxes or rent for the people who live in their territories or do business in their territories, and protect their territories fiercely. Gangs have also been known to protect their authority, engaging in extreme violence against anyone who questions them. Gangs may also target a person for violence if the gang believes that the person is affiliated with a rival gang. Applicants who have been able to paint their case as one of a struggle against the power and authority of the gangs, and thus a case of an imputed political opinion, have met with some success in progressive federal circuits, such as the Ninth Circuit.

Certainly an argument can be made that United States is in a large way responsible for the uncontrollable gang situation in the northern triangle of El Salvador, Guatemala and Honduras. United States chooses to deport people after they have spent time in prison, where they have picked up their affiliations to American made gangs. Those deported individuals take back with them knowledge of an organizational structure that the Central American governments are simply unready and unable to address effectively.

But the reality is it is not politically popular for the United States to take responsibility for the gang violence in Central America. Instead, politicians push to close the borders, in an attempt to exclude the gang related element from United States. For the practitioner, the challenge is to find creative ways around this situation, and to work with the clients in order to craft the strongest asylum clean possible.

William J. Kovatch, Jr.
For an appointment, call (703) 837-8832
Se habla espanol (703) 298-0502

Links

National Immigrant Justice Center, Particular Social Group Practice Advisory

National Immigrant Justice Center, Resources for Asylum Claims Based on Membership in a Particular Social Group

Victim of Gang Violence Granted Withholding of Removal

The Arlington Immigration Court granted withholding of removal to a young man from El Salvador who had been a victim of gang violence. 

About three years ago, the young man was shot and left for dead when he was unable to pay the quota that members of MS-13 demanded from him for the privilege of living in their territory. The man testified that he was a target for extortion because his father was a former member of the El Salvadoran military. 

U.S. law provides that an alien must be granted withholding of removal if an Immigration Judge finds that it is more probable than not that the alien's life and liberty will be in jeopardy because of race, religion, nationality, political opinion or membership in a particular social group if returned to his or her home country. I this case, the Immigration Judge found that the young man had suffered past persecution because of being an immediate family member of a former military member. 

The young man had presented evidence that the gangs in El Salvador act like a quasi-government, often controlling territory and demanding rent, or a quota, from the people who live there. The gangs have become so dominant, that the El Salvadoran police are unable to provide protection to residents. 

As recipient of withholding of removal, the young man may live and work in the United States.  But withholding of removal does not lead to permanent residency or citizenship. 

By: William J. Kovatch, Jr. 

For an appointment, call (703) 837-8832

Se habla español: (571) 551-6069