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Gang and Cartel Violence: A Reason To Grant Political Asylum from Mexico and Central America

Written by  Jillian N. Blake

In Cary Fukunaga’s 2009 film, Sin Nombre, Central American immigrants ride through the Mexican countryside on top of slow-moving railroad cars with hopes of reaching the United States undetected.  Some of the film’s characters are fleeing poverty, but others are running for their lives. These migrants fear persecution from violent, armed gangs in their home countries. Sin Nombre portrays a harsh reality experienced by many asylum-seekers from Central America and Mexico.

And the threat appears to be growing. According to the United Nations High Commissioner for Refugees (UNHCR), from 2009 to 2011, the number of asylum applications from Mexico in the United States more than tripled.  The number of applicants from El Salvador, Guatemala, and Honduras increased significantly as well.  Despite growing drug and gang violence in the region, U.S. immigration authorities have largely rejected these claims; only 1.1% of claims from Mexico were granted refugee status in 2011.  In comparison, 35% of the applications from China and 67% of the applications from Iraq were granted in the same year.

The United States has not adopted coherent standards on the legal status and rights of asylum-seekers from Mexico and Central America. Individuals with potentially legitimate claims include those who resist gang and cartel recruitment, business owners unwilling to meet extortion demands, witnesses to crimes, law enforcement agents targeted by gangs and cartels, human rights activists, and other individuals who do not conform to gang and cartel practices because of their opposition to these groups.  Legal experts have commented that although such asylum-seekers have a significant fear of returning to their home countries, their experience does not fit neatly into the one contemplated by the 1951 Refugee Convention —which set out the legal definition of “refugee” under international law—and so their claims are often denied.

This Essay argues that the United States should view the migrants fleeing violence in Mexico and Central America as refugees. This Essay will describe the nature of the threat from gangs and cartels, present the major arguments for granting gang-based asylum under international refugee law, and describe how the U.S. courts and government have interpreted those arguments. The final section of this Essay will offer an interpretation of refugee law that both bridges the gap between traditional interpretations of the Refugee Convention and also addresses a pressing need to adapt its original meaning to present-day conflicts in Latin America. This approach will establish a multifactor test for recognizing gang-based political asylum, including: the level of violence, the probability of harm, the state’s degree of sovereign control over its territory, the existence of a political conflict between the state and a nonstate actor, the asylum-seeker’s opposition to a political element, and the level of state protection. The test elements are drawn from a state’s obligations under international refugee law, combining political asylum, human rights, generalized violence, and non-refoulement principles.