Asylum Law: Options For Mexicans Seeking Protection

Mexicans can apply for asylum in their own country or in a foreign country. In Mexico, asylum seekers can apply for refugee status at the Mexican Commission for Refugee Assistance (COMAR) in several cities across the country. COMAR interviews applicants to understand why they left their country and why they cannot return. While Mexico has made legislative improvements to its asylum system, it faces challenges due to underfunding and a lack of resources to handle the growing number of asylum applications. On the other hand, Mexicans seeking asylum in the United States face significant obstacles due to discriminatory policies and prejudice. The Trump administration's executive actions have restricted the ability of Mexicans to seek asylum at the US-Mexico border, forcing them to remain in Mexico or return to potential danger in their home country. While it is possible for Mexicans to gain asylum in the US, it is difficult due to skepticism and credibility concerns surrounding Mexican asylum claims.

Seeking asylum in the US from Mexico

Seeking asylum is legal in the United States, and the country has accepted asylum seekers for centuries. However, it is difficult for Mexicans to gain asylum in the US. While around 1,000 Mexicans are granted asylum in the US each year, Mexican nationals account for very few of the total asylum approvals. This is due to several reasons. Firstly, there is a high number of undocumented Mexicans in the US, leading to skepticism and prejudice from judges and asylum officers about the legitimacy and credibility of Mexican asylum claims. This results in a high denial rate for Mexican asylum applications. Secondly, there is a challenge in proving that the violent reprisals feared by Mexicans are based on one of the five protected grounds required under US law, namely race, ethnic group, religion, political opinion, or particular social group.

To seek asylum in the US, asylum seekers must be in the country or at a port of entry, such as an airport or official land crossing. They cannot apply for a visa in advance for the purpose of seeking asylum but must simply show up at the border. However, since 2017, the US government has severely restricted access to asylum at the border, with policies like the Migrant Protection Protocols (MPP) or "Remain in Mexico" forcing asylum seekers to wait in Mexico while their US immigration court cases are processed. This has resulted in thousands of kidnappings and other violent crimes against migrants. Additionally, the US government has implemented an asylum ban, making it harder for asylum seekers to enter the country. While a federal court blocked the ban in July 2023, it remains in effect as the Biden administration has appealed the decision.

Asylum seekers who make it to the US will have to present their case in immigration court. Access to legal representation can significantly impact the outcome of their case. Asylum seekers are not guaranteed a government-funded lawyer, and those without legal representation often face challenges in navigating the complex immigration system. On the other hand, asylum seekers with lawyers are five times more likely to be granted asylum.

While seeking asylum in the US from Mexico is challenging, it is not impossible. Asylum seekers can increase their chances of success by understanding the legal requirements and seeking legal assistance. Additionally, various organizations, such as the IRC and faith groups, provide support and humanitarian aid to asylum seekers, helping them meet their basic needs and resettle in new communities.

US asylum law and international law

Asylum seekers can legally apply for asylum in the US if they are physically present in the country or at a port of entry, such as an official land crossing or an airport. However, since 2017, the US government has severely restricted access to asylum, with policies such as the Migrant Protection Protocols (MPP) or "Remain in Mexico" forcing some asylum seekers to wait outside US borders. In 2020, the Trump administration implemented Title 42, a public health rule during the COVID-19 pandemic, which allowed for the expulsion of asylum seekers without hearing their cases. This policy faced legal challenges for undermining the US's obligations under domestic and international law.

The United Nations 1951 Convention and 1967 Protocol define a refugee as someone who cannot return to their home country or obtain protection there due to past or well-founded fears of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. This definition has been incorporated into US law.

In the US, asylum seekers can apply through two primary processes: affirmative and defensive. Affirmative asylum applications are for those not in removal proceedings, while defensive asylum is applied for as a defence against removal from the US. If an asylum officer does not grant asylum and the applicant lacks lawful immigration status, they are referred to an immigration court, where they may renew their asylum request.

Despite their proximity to the US, only around 1,000 Mexicans are typically granted asylum in the US each year. Mexicans face challenges in gaining access to the US to apply for asylum and often encounter long periods of detention while awaiting adjudication. Common reasons for denial include difficulty proving that feared violent reprisals are based on one of the five protected grounds: race, ethnic group, religion, political opinion, or particular social group. Asylum officers and judges may also deem Mexican applicants' claims as lacking credibility.

Asylum seekers in the US have certain rights and options, such as the right to a lawyer and the ability to work after 180 days. After one year, an asylee may apply for lawful permanent resident status, and after five years, they can apply for citizenship.

Mexico's asylum system

Mexico has made significant legislative improvements to its asylum system in recent years to adapt to new hemispheric migration patterns. The country's definition of 'refugee' is among the world's most inclusive, and its asylum agency, the Mexican Commission for Refugee Assistance (COMAR), has made substantial progress. As a result, the approval rate of asylum applications has improved considerably, with around 70% of applications resolved favourably.

However, Mexico's asylum system faces several challenges. Firstly, the administrative authorities reviewing asylum applications are underfunded and overwhelmed by the growing number of petitions. There are only ten COMAR locations across the country, and most have struggled to keep up with the massive increase in hemispheric migration. This has led to long wait times for asylum seekers, with some enduring years-long delays. Secondly, Mexico's economic and demographic circumstances are not ideal for absorbing large numbers of refugees. Finally, Mexico has systemic problems with gang and gender-based violence, which undermines its position as a destination country for asylum seekers fleeing similar issues.

To address these challenges, Asylum Access Mexico, a non-profit organisation established in 2015, works to improve access to asylum for refugees in the country. They operate in seven different locations in Mexico, providing free legal representation and community advice to refugees seeking asylum. They also hold workshops for refugees and asylum seekers on their rights under Mexican law, including sessions aimed at refugee women who have fled gender-based violence. Asylum Access Mexico has contributed to significant policy advances, such as the Mexican Congress's decision to close a legal loophole permitting the detention of migrant and refugee children in 2020.

In conclusion, while Mexico has made notable legislative improvements to its asylum system, the country faces challenges in terms of underfunding, overwhelming demand, economic and demographic constraints, and pervasive gang and gender-based violence. Organisations like Asylum Access Mexico play a crucial role in supporting refugees and advocating for their rights, but ultimately, additional resources and systemic changes are needed to address the shortcomings in Mexico's asylum system effectively.

US asylum claims from Mexico

While it is difficult for Mexican nationals to gain asylum in the US, it is not impossible. According to the Department of Homeland Security (DHS), in 2023, 890 Mexicans were granted asylum in the US. This number varies widely from year to year.

One of the main challenges facing Mexicans seeking asylum in the US is the skepticism and prejudice of US immigration judges and officers towards Mexican asylum seekers. This often results in Mexican asylum claims being denied due to a lack of credibility. Furthermore, the Trump administration's immigration policies have made it increasingly difficult for Mexicans to seek asylum in the US. An executive order called "Guaranteeing the States Protection Against Invasion" declared unlawful entry to be a bar to applying for asylum, and the CBP One app, which was previously used by asylum seekers to schedule initial interviews at the southern border, has been discontinued. These changes have left many Mexican asylum seekers stranded in dangerous border towns in Mexico, facing difficulties in accessing due process for their asylum claims.

To improve their chances of being granted asylum in the US, Mexicans should seek legal representation. Studies have shown that asylum seekers with legal representation are five times more likely to be granted asylum. However, access to legal services for asylum seekers in Mexico can be challenging due to barriers such as a lack of fixed addresses and telephone numbers.

Asylum in Mexico for children

Mexico has made significant legislative improvements to adapt to new hemispheric migration patterns. The country's definition of "refugee" is among the world's most inclusive, and its asylum agency, COMAR, has made substantial progress in recent years. As a result, the approval rate for asylum applications has significantly improved, with around 70% of applications being resolved favorably.

Mexico's asylum system provides specific protections for migrant children, regardless of whether they are unaccompanied or traveling with a legal guardian. All children who arrive in the country as migrants, along with their legal guardians, are automatically granted humanitarian parole, allowing them to apply for asylum. Mexican law prohibits the separation of migrant families with children and the detention of migrant children due to their migration status.

Despite these positive developments, Mexico's asylum system faces challenges. The administrative authorities reviewing asylum applications are underfunded and overwhelmed by the growing number of petitions. Mexico's economic and demographic circumstances also pose difficulties in accommodating large numbers of refugees. Additionally, Mexico struggles with systemic issues of gang and gender-based violence, which undermines its appeal as a destination for asylum seekers fleeing similar violence.

To address these challenges, Mexico is working on several initiatives. A Commission for the Protection of Migrant and Asylum-seeking Children has been tasked with designing and implementing policies to protect this vulnerable group. Mexico is also developing a policy to address internal displacement, simplifying asylum procedures, and prioritizing financial inclusion and strengthened public services in host communities.

Asylum Access Mexico, established in 2015, is the country's largest refugee legal aid organization. They provide free legal services, empower refugees through workshops, and advocate for their rights, including access to employment, healthcare, and education.

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