In an article about Mexicans seeking asylum for fear of drug violence, John Feere writes on the Center for Immigration Studies website that:

it should be obvious to any Immigration Judge that our nation’s asylum laws are not applicable to the situation at hand. Nevertheless, if they are successful it would represent a massive expansion of asylum law and it would undoubtedly result in increased asylum claims by Mexicans living illegally in the United States. It would also encourage more Mexicans to cross the border illegally.

I disagree with Mr. Feere’s first assertion–that our asylum laws are not applicable to those fleeing gang and drug violence.  The harm faced by some asylum seekers (death at the hands of criminal gangs or corrupt government officials) would certainly qualify as persecution.  In many cases, the government of Mexico cannot or will not protect people from drug violence.  The main question seems to be whether such persons face persecution on account of a protected ground.  That will depend on the individual case.  Former police officers, for example, have been defined as a particular social group. See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).  As discussed in a recent post, the Seventh Circuit has held that “former gang members” may constitute a particular social group.  Ordinary citizens caught in the crossfire will have a harder time demonstrating a nexus (though they still might qualify for relief under the Torture Convention, as the harm faced might constitute torture, and–it could be argued–the persecutors are either government or quasi-government actors).

It is more difficult to argue with Mr. Feere’s second assertion–that granting asylum to some Mexicans fleeing the drug war will create incentives for more people to file for asylum, and more people to cross illegally into the U.S.  Of course, if the goal of asylum is to protect people from harm, this might not be such a terrible thing (assuming the harm they face crossing the border is less than the harm they face in Mexico).   

The balance between offering protection to refugees on the one hand, and not opening the floodgates on the other, is particularly difficult when it comes to our closest neighbor.  However, the numbers, at least so far, do not support a conclusion that increasing violence has led to more Mexican asylum seekers or more asylum grants for Mexicans.  The Justice Department figures for Mexican asylum seekers during the last decade:

The (rough) estimates of the number of Mexicans residing illegally in the U.S. is based on a report from the Migration Policy Institute.  Based on these numbers, on average, about 220,000 Mexicans enter the United States illegally every year.  Only a very small percentage (usually <2%) of illegal Mexican migrants seek asylum each year in our country.  Of those, only about 2% are granted asylum.  For 2009, only 62 Mexican asylum seekers–or about 1 out of every 3,500 people–were granted asylum.  Given the remote possibility of an asylum grant, Mr. Feere’s concern about creating incentives for further migration from Mexico seems overblown.   

As opposed to Mr. Feere, I am an advocate for asylum seekers, and my inclination is to err on the side of offering protection.  However, if the situation in Mexico continues to deteriorate and we see a spike in asylum applications (which so far we have not), we may need to address how to fulfill our humanitarian obligations without compromising our territorial integrity.