The Conundrum: Denying Asylum to Mexican Journalists Fleeing Retaliation for Exposing Government Corruption

By Jihan Jude

2017 was one of the most dangerous years for journalists living in Mexico. About one journalist or photographer per month was brutally killed. In fact, these killings have been organized and prevalent since 2012, when the Mexican government created a program, the Mechanism to Protect Human Rights Defenders and Journalists, in order to provide journalists threatened by violence with security guards and secret safe houses. Since 2012, at least 368 journalists have availed themselves of the program. However, journalists are still facing violence, usually after writing stories critical of the government’s corruption and revealing practices by the military and police to illegally detain and extort money from people. There have been over 5,000 complaints to Mexico’s National Human Rights Commission since 2012 that support these claims, and complaints reveal other acts committed by the Mexican military such as rape and murder. The violence that journalists face has been organized and persistent; some have been shot while shopping, driving their children to school, stabbed by multiple assailants while waiting at traffic stops, had their homes set on fire in the middle of the night, or even threatened openly by military leaders.

While Mexico has made modest efforts to address violence toward journalists, many journalists have fled to the United States claiming asylum from political persecution and to vindicate their right to freedom of speech. But while the U.S. has an established asylum program under 8 U.S.C. § 1158 (2012), agencies such as the U.S. Citizen and Immigration Service (C.I.S.) and Customs and Border Protection (C.B.P.) routinely deny applications or turn way people who arrive at the border legitimately in fear of persecution. Some journalists fleeing Mexico with incredible stories of persecution and seeking asylum in the U.S. have had their asylum claims denied. To qualify for asylum in the U.S., one needs to complete a Form I-589, Application for Asylum and for Withholding of Removal within one year of arriving in the U.S. They must show through their application that they have suffered persecution, or that they fear they will suffer persecution, due to any of the following five factors: race, religion, nationality, membership in a particular social group, or political opinion. But applying for asylum is much easier than getting it, and shifts in the political climate in the U.S. toward immigration, particularly from Mexico, may have an effect on the American asylum system.

In October of 2017, Attorney General Jeff Sessions announced that the U.S. asylum system is defunct. Sessions said that the system is being gamed by false claims of persecution and by clever lawyers who coach their clients to craft their claims to get through the “credible fear” process.  Saying the right words, at the border for instance, can mean the difference between immediate arrest and expedited removal on one hand, and detainment with a hearing before an Immigration Judge on the other. The system, Session says, was “never intended to provide asylum to all those who fear generalized violence, crime, personal vendettas, or a lack of job prospects.” Sessions, and the Trump Administration, contend that these non-meritorious claims crowd out legitimate claims, and that Congress should require more showing of credible fear. Notably, there has been an increase in gang violence and drug trafficking in certain Latin American countries like El Salvador and Guatemala that has led to a wave of immigration. Sessions says that this has increased credible fear interviews from 5,000 to 94,000 between 2009 and 2016.

While the asylum system in the U.S. may be under increased strain, a 2013 study by the Harvard Immigration and Refugee Clinic indicates that the U.S. and Canada, alike, are either behind international standards in treatment of both asylum seekers and refugees or have policies that deter seeking asylum. For example, the United Nations (UN) has provided guidance that asylum seekers should not even be detained, let alone detained for months or years, as asylum seekers are in the U.S. Moreover, the procedural frameworks in Canada and the U.S. have created barriers to seeking asylum. Canada’s Safe Third Country Agreement prohibits asylum seekers who first arrive in the U.S. from applying in Canada. It would be nearly impossible for asylum seekers fleeing on foot from Latin American countries to enter Canada by land; therefore, this agreement greatly deters those types of asylum claims. In the U.S., asylum seekers have to wade through a lengthy process, and cannot work or receive government benefits until their application is approved, unless they qualify for Temporary Protected Status (TPS). Additionally, six asylum seekers and legal services group, Al Otro Lado, filed a federal lawsuit in California in July 2017 against the Secretary of the Department of Homeland Security (DHS) claiming abuses and intimidation by CBP agents at the Mexican border. Claimants alleged that in 2016, after expressing to CBP agents that they feared returning to their country, they were physically assaulted, yelled at with profanities, coerced into signing forms stating that they do not fear returning to their country, and ordered at gun-point to leave the port of entry.

Given the Trump Administration’s current focus on immigration reform and inefficiencies in the system, it may be tempting to think that asylum seekers had it far easier under prior administrations, such as the Obama Administration. However that is not entirely the case because enforcement is dependent on multiple factors, such as the role of Immigration Judges. An Immigration Judge may have the final say on a pending application for asylum. Even during the Obama Administration, denial rates for asylum seekers from Mexico were higher than denial rates from asylum seekers coming from further away such as India, China, and Ethiopia. Lucas Guttentag, former senior advisor at DHS, says that higher scrutiny paid toward Mexican asylum applicants may belie an apprehension among Immigration Judges that granting such applications will increase migration from Mexico. Ultimately, there is neither a fast nor easy solution for Mexican journalists feeling violence targeted against them as a class. For journalists fleeing or contemplating fleeing to the U.S., the outcome of their situations may depend on whether Congress agrees with calls for stricter asylum requirements as part of its focus on immigration reform.



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