Forcing those seeking asylum to stay in Mexico just makes a perilous situation worse.Border Crossings July 23, 2019
Roberto stood frozen, desnudo, silent. His palms tucked between his legs and his feet knitted together. He contorted his body inward as if he might become narrow enough to disappear. Los Zetas, the Mexican cartel that has made kidnapping migrants a side business to their drug-related mayhem, roamed around him. Roberto was one of eight migrants in a naked line beside the train tracks where they had originally been spotted by the Zetas. Their clothes were haphazardly piled in the dust beside them. While one Zeta stood with his gun cocked, the other two searched through each mound of clothing. They left no pocket unturned, no tattered shoe unexamined.
What could these men possibly want from migrants—some of the poorest and most vulnerable of all? According to Roberto, they were looking for money, certainly, but they were also looking for phone numbers. Anyone with a United States phone number on their person would be assumed to have family there—rich family, or relatively so, that would pay a ransom to get their loved one released. These were the migrants that would likely get kidnapped, the ones that might be worth the Zetas’ time. “I had a phone number written down of a family member in Virginia,” Roberto recalled. But knowing the risks of the journey to America and the Zetas’ tactics, he had written the number in tiny print in the inside beltline of his pants. “And then I memorized the other numbers.”
As the Zetas searched his clothing, Roberto breathed as if through a straw. Oxygen seemed nonexistent, and his chest constricted with fear. But then they moved to the next migrant. “They didn’t find anything on anyone,” Roberto recounted, his tone muted. Yet before letting them go—in the sort of manipulation typical of the Zetas—each migrant was given ten pesos and set free with the chilling promise that if they were ever found on that section of the train tracks again, the Zetas would kill every last one.
The Peril of Reaching America
While there has been significant attention paid toward the horrible conditions in United States migrant detention centers, few Americans have focused on all the dangers migrants face before they reach the United States. All across Mexico, but particularly along the United States–Mexico border where organized crime is thoroughly entrenched, stories like Roberto’s are hauntingly common. Often, they turn out much worse. Central American migrants routinely face beatings, robbery, rape and murder as they attempt to cross Mexico and enter the United States. Why? Because when corruption and exploitation run rampant, cartels, random criminals and Mexican officials target the most vulnerable: migrants. They’re easy to spot. They are visibly identifiable as Honduran, Guatemalan, Salvadorian and their backpacks and worn clothing all spell migrant. They also carry all their cash on them and are unlikely to ever go to the police to report a crime. They lack resources and social capital to protect themselves. They can stand naked in the jungle with guns pointed at them and no one will ever know.
When President Trump launched his Migrant Protection Protocol, also known as Remain in Mexico, in January 2019, he forced all those who seek asylum when they cross the border to return to Mexican border cities while their cases slog through the immigration courts, a process that often takes years. The policy, which is meant to appeal to Trump’s base and address what he spins as asylum seekers gaming the system, has been horrendous on many levels. Not only has it caused chaos and confusion as migrants go through the legal process, but it has also put those looking for refuge at serious risk. As of June 2019, 12,000 migrants have already been returned to Mexico under the policy. Additionally, based on a June 7 deal with Mexico, Trump is also threatening a dramatic expansion of the program, potentially affecting many more migrants in the coming months.
In returning scores of migrants seeking asylum to border towns, Trump is placing the most vulnerable population in one of the most crime-ridden areas, a flagrant recipe for disaster and disregard for human rights. As a Reuters report notes, most migrants have been returned to Tijuana and Ciudad Juarez, which are consistently among the top five Mexican cities with the highest level of homicides in the country. In 2016, there were 545 murders in Ciudad Juarez alone; 150 were reported in just the first two months of 2017. Yet what puts migrants at risk is not just that these areas are dangerous, but also the fact that those who make these cities dangerous, cartels, gangs and random criminals, routinely prey on migrants specifically.
To understand the extent to which migrants are targets for organized crime, look no further than the grossly underreported, yet still striking rates at which migrants are kidnapped and raped. Cartels, namely Los Zetas, have the infrastructure in place to abduct hundreds of migrants at a time. They hold them in safe houses, charging between $300 and $1,500 for their release. Their name alone induces ample fear to make migrants pay such outrageous ransom. And if Los Zetas can confine 50 migrants in a safe house and earn even $500 a head for their release, they make more money than they would by extorting local businesses. But beyond the money, they abduct migrants because they can, and because despite the fact that everyone knows this is happening, no one is really watching.
Tracking the Violence
In 2012, Mexico’s National Institute of Migration (INM) began tracking the rates of migrant kidnappings. Despite the bureaucratic hurdles to reporting these crimes to the INM (on top of the fact that migrants don’t want to confront the authorities), the INM still logged 707 kidnappings of Central American migrants in 2017. Even before Mexico’s INM started keeping track of abductions, however, a unit within the National Commission of Human Rights in Mexico took to investigating migrant kidnapping. In 2009, the center recorded the testimonies of migrants that had been kidnapped. In just six months, they logged 10,000 cases, noting that if they had a bigger staff, that number would probably double or triple. Although the testimonies were recorded eight years prior, they far exceeded the cases the INM collected, indicating that the scope of the problem far eclipses what anyone would like to believe.
Figures estimating the number of migrants that are raped as they cross Mexico are even starker. Once again, it is difficult to get an accurate number for these abuses, given that the majority of migrants don’t report them. However, studies estimate that anywhere from 60 to 80 percent of migrant women are raped somewhere along their journey north. This percentage is astounding. Many migrant women who travel through Mexico and across the border take birth control pills to avoid pregnancy should they be raped. This is a tragic trade-off. To make it to the United States, women literally accept and prepare for the high probability that they will experience life-altering trauma. Why is this number so high? Because abusers expect migrant women to be powerless. When we force thousands of migrant women to wait in areas that breed violence under Remain in Mexico, tragically they become so.
For those who are awaiting asylum in border cities, their lives remain volatile and uncertain. Many organizations are trying to help those affected by Remain in Mexico. One Calexico-based organization, Border Kindness, is providing transportation and information to help migrants get to their court hearings in the United States. However, there is little these organizations can do to protect migrants from gang and cartel violence. Likewise, the migrant shelters in border cities are incredibly overcrowded. When every shelter is ten times beyond their capacity, their security systems become compromised, making it easier for organized crime to infiltrate those spaces and con migrants. Those who are turned away from shelters and find themselves on the streets are even more likely to be targeted. Their social capital is non-existent. Without stable housing and work, they struggle to steer clear of the violence that marks the border.
Despite the fact that Mexican President Andrés Manuel López Obrador, popularly known as AMLO, has reluctantly agreed to receive these asylum seekers, government support for them is minimal. Although the Mexican government is reportedly planning to provide work permits, health care and education for migrants returned under Remain in Mexico, this has yet to happen on any meaningful scale. Prior to Remain in Mexico, government support for even Mexican migrants deported and dropped at the border has been practically non-existent. Deported Mexican migrants have had to find their own way home from the border, even if they have no money for a bus ticket. This has put many Mexican migrants on the streets, left to beg for change and face extortion by organized crime. Meanwhile, former Mexican President Enrique Peña Nieto continuously emphasized how much his administration was doing to support returned migrants. The consistent discrepancy between what the Mexican government promises to do to help migrants and the minimal support they actually receive calls into question whether AMLO’s plan to support these migrants will come to fruition.
A Legal Standard that Protects Migrants?
While Mexico scrambles to provide minimal sanctity for the thousands returned, United States courts decide whether the policy is actually legal. The policy faced legal challenges as soon as it was implemented, but in May 2019, a federal appeals court allowed Remain in Mexico to continue while the United States Court of Appeals for the Ninth Circuit considers its substantive validity. While there are several legal questions at play, one key issue is whether the government has an obligation to ensure asylum seekers aren’t returned to compromising circumstances. In other words, do asylum seekers have an inherent right to safety?
Currently there are two legal standards directly related to Remain in Mexico that could be invoked to maintain the safety of those seeking refuge in the United States and around the world. In practice, however, they are very difficult to apply to the unique threats that Central American migrants face. The first protection is the non-refoulement principles contained in Article 33 of the 1951 Convention Relating to the Status of Refugees. These principles guarantee that no state can expel a migrant to another state “where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.”
Unfortunately for Central American migrants in Mexico, it is already very difficult to prove that those persecuted by organized crime are targeted based on their “race, religion, nationality, membership of a particular social group or political opinion.” Immigration lawyers typically have the most success basing their arguments on the “membership of a particular social group” category, since many migrants are targeted on account of their familial ties or ties to other groups, such as living in the territory of another gang. Even so, this argument is tenuous and very few Central American migrants win on these grounds. Proving one is being targeted for these reasons is even more difficult in the hypothetical situation of returning to Mexico under this policy.
The second protection that might apply to Remain in Mexico is Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which provides that a state cannot expel a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Again, while fear of torture may apply to many Central American migrants returned to Mexico, proving that there are “substantial grounds” for this concern is difficult. Additionally, both Article 3 of CAT and Article 33 of the 1951 Convention stipulate that the migrant must prove that it is “more likely than not” that they will face persecution or torture in order for these protections to apply. This high bar is nearly impossible to attain. In the meantime, those who face substantial risks but cannot definitively prove them have no legal protections.
Because these conventions only protect the safety of very specific migrants, the Secretary of Homeland Security simply has to stipulate that migrants who meet these qualifications not be returned to Mexico in order for Remain in Mexico to still be legal on this front. However, even for those that might qualify to stay, they are unlikely to know that they have the right to apply for an exemption and stay in the United States. Border agents are not required to ask asylum seekers whether they fear persecution or torture before they are returned. Instead, if a migrant explicitly expresses these fears, they are then interviewed by a United States Citizenship and Immigration Services asylum officer to determine if it is “more likely than not” that they will face these particular dangers. Most migrants, however, have no idea that they have the right to state their fears and receive such an interview. As such, as of June 2019, only 747 out of 12,000 people explicitly expressed fear of returning to Mexico, according to an asylum officer. Of these 747 people, 629 migrants were still returned to Mexico because of the high bar for proving these fears.
If the legal standards that are supposed to protect migrants’ safety don’t apply in these cases, what would prevent similar policies that put migrants at risk from continuing to arise? Remain in Mexico clearly has to go, but even when it does, there is still no precedent to ensure the safety of Central American migrants.
In order to ensure that similar policies don’t pop up again in the future, there are three key changes that need to be made. First, the Trump Administration claims that it has authority to implement Remain in Mexico under 235(b)(1) of the Immigration and Nationality Act, which stipulates that in the case of a migrant arriving “from a foreign territory contiguous to the United States, the [Secretary of Homeland Security] may return the alien to that territory.” The Immigration and Nationality Act needs to be amended to explicitly state that asylum seekers are not included under “migrants” for which the Secretary of Homeland Security might have the right to return.
Additionally, if we truly believe that asylum seekers have the right to refuge, we cannot put them at risk while they seek out this right. We need to eliminate Remain in Mexico, but we also need a legal precedent that safeguards the rights of migrants. Rather than creating these high bars for asylum seekers to prove that they might be at risk, we need a broader standard that explicitly states that asylum seekers have the right to be safe throughout the legal process.
Lastly, on a broader level, the 1951 Convention does not protect today’s Central American asylum seekers largely because their persecution is usually not due to protected grounds. In other words, they are not clearly persecuted based on their race, nationality, religion, political opinion, or membership in particular social group. Yet they still flee for their lives like the refugees of past decades. They still face death at the hands of gangs that have unraveled their home countries. If we are to stay true the essential right to seek refuge in America, it is time to create a more expansive definition of refugee—one that includes gang violence as persecution and thereby takes into account today’s political realities.
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