Many have been applying for asylum at the border, showing up with their families and declaring a fear of returning to their hometowns.
Others who have cases in deportation court are seeking asylum or “withholding of removal,” a status similar to asylum, as a way of fighting their deportation from the United States to their home countries.
U.S. law provides that persons are eligible for asylum if they have a “well-founded fear” of “persecution” because of their race, religion, nationality, political opinion or “membership in a
particular social group.”
There is a separate application that can be granted for “withholding of removal” if the person has a “clear probability” of persecution if returned to their home country.
In either case, if the government approves the case, the applicant can stay indefinitely in the United States with work permission.
But it must be said that, in general, it is difficult to win cases for asylum due to fear of persecution from a gang or drug cartel because U.S. officials are afraid that giving one person asylum for this reason means that they will have to give asylum to thousands of Mexicans who are coming to, or are already living in, the United States.
Therefore, in presenting your case, it is important to show that your family has been targeted specifically for violence and for reasons that qualify you for asylum.
In order to win asylum or withholding, you must prove several things to an immigration official or judge.
First, you must show that you or your family members have been victims of harm, such as threats, extortion, kidnappings, attacks or other harm. You can present statements from family members or officials in Mexico verifying these incidents. It is very important to be as specific as possible.
Second, you must link the threats or violence to one of the five bases for asylum. In cases based on fear of gangs or cartels, you could try to show that your family’s refusal to cooperate with a gang or cartel was a political opinion that caused you or your family to be threatened, extorted or attacked.
You can also argue that you and your family are members of a “social group” that resisted the cartel violence and that exposes you to an increased risk of harm. For some religious Mexicans, you can argue you are a target because of your faith-based resistance to the cartels.
Third, you must show that the authorities in your country are not willing or not able to protect you. Given the widespread violence now in many parts of Mexico, this is not a difficult thing to prove.
The procedure for ruling on an application for asylum can take many years. The immigration courts in San Francisco are typically taking 4 to 5 years to finish these cases. Even if the application is denied, the immigrant has two separate appeals after that denial that can take an additional 5 to 7 years.
I personally have had asylum cases that were pending 10 to 12 years, while the clients remained in the United States legally with their family, often with work permission. In the event that immigration reform passes while an asylum case is pending, these people would most likely be eligible to apply for any amnesty provisions of that law.
The number of people seeking asylum at the U.S.-Mexico border has increased 700 percent since 2013, and this number is likely to increase given that Cartel-related violence continues to get worse there. As a result, asylum will continue being a viable option for people who genuinely fear the violence spreading throughout Mexico.
Wilson Purves is legal advisor for immigration matters with the Mexican Consulate of San Francisco and a licensed California attorney practicing Immigration Law in San Francisco.