Fleeing the Drug War Next Door: Drug-related Violence as a Basis for Refugee Protection for Mexican Asylum-Seekers
| Author | Holly Buchanan |
| Position | California State University, Long Beach, B.A. (2005); Chapman University School of Law, J.D. (2009); Utrecht University School of Law, LL.M. (public international law) (2011); State Bar of California, Member; American Bar Association, Member |
| Pages | 28-60 |
Fleeing the Drug War Next Door: Drug-related Violence as a
Basis for Refugee Protection for Mexican Asylum-Seekers
Holly Buchanan
Merkourios 2010 – Volume 27/Issue 72, Article, pp. 28-60.
URN: NBN:NL:UI:10-1-100925
ISSN: 0927-460X
URL: www.merkourios.org
Publisher: Igitur, Utrecht Publishing & Archiving Services
Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)
Keywords
Refugee, Asylum-seeker, Immigration, Asylum, Non-refoulement, Drug Tracking, Mexico, Corruption, Drug-related Vio-
lence.
Abstract
e death toll in Mexico due to drug-related violence has continued to rise since President Felipe Calderón initiated the
Mexican Government’s crackdown on drug tracking organizations in 2006. Pervasive corruption among state and local
government ocials and alleged human rights violations by the Mexican military have added to the gravity of the endemic
drug-related violence in Mexico. In response to the continuous violence in Mexico perpetrated by drug tracking organiza-
tions, a substantial number of Mexican citizens have ed to the United States seeking asylum. Due to the strict requirements
for refugee status under international law and asylum protection under U.S. law, individuals seeking protection based on
drug-related violence face several legal obstacles. is Article addresses the extent to which drug-related violence may con-
stitute a basis for refugee status protection under international refugee law and U.S. asylum law. It seeks to provide insight
into the potential viability of claims for refugee status brought by Mexican asylum-seekers eeing drug-related violence. is
article concludes with a discussion on complementary protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment for Mexican asylum-seekers.
Author Aliations
California State University, Long Beach, B.A. (2005); Chapman University School of Law, J.D. (2009); Utrecht University
School of Law, LL.M. (public international law) (2011); State Bar of California, Member; American Bar Association, Mem-
ber.
Article
Merkourios - Criminal Justice and Human Rights - Vol. 27/72 28
Case Note
Article
29 Merkourios - Criminal Justice and Human Rights - Vol. 27/72
I. Introduction
Drug-related violence perpetrated by drug tracking organizations against police ocers, the Mexican military and the
general population have become frighteningly common throughout Mexico.1 Nearly 23,000 people in Mexico have died in
drug-related violence since Mexican President Felipe Calderón initiated the crackdown on drug tracking organizations in
2006, with 3,365 deaths occurring within the rst three months of 2010 alone.2 While drug violence may not necessarily be
extreme enough to constitute a war in some situations, there is a violent drug war going on in Mexico among drug tracking
organizations and the Mexican government with no end in sight.3 e endemic violence in Mexico has been exacerbated
by the widespread corruption among state and local government ocials and allegations of human rights violations by
members of the Mexican military.4 In response to the spiraling drug-related violence, Mexican citizens continue to ee to the
U.S.5 While many who have ed to the U.S. have entered legally under special visas or based on other lawful immigration
status,6 an increasing number have urgently ed to the U.S. without lawful entry, seeking asylum.7 us far, the results of
these asylum-seekers’ refugee claims have been mixed, with some granted asylum while others have been forced to return to
Mexico.8 e question thus becomes, to what extent may drug-related violence constitute a basis for refugee status under
international refugee law and U.S. asylum law?
is Article will address this question with respect to asylum-seekers from Mexico who have ed the drug-related violence
in their home country. Part II provides an overview of the widespread and increasing drug-related violence occurring in
Mexico and how this violence has created an inux of Mexican asylum-seekers seeking refuge in the U.S. Part III introduces
the foundations of the international refugee law regime, namely the 1951 Convention Relating to the Status of Refugees
(hereinafter “1951 Convention”) and its 1967 Protocol Relating to the Status of Refugees (hereinafter “1967 Protocol”),9 as
well as, the United Nations High Commissioner for Refugees (hereinafter “UNHCR”). Part IV provides a brief description
of two potential avenues of relief – asylum and withholding of removal – in the U.S. for individuals eeing the extensive drug-
related violence in Mexico. Part V analyzes the extent to which Mexican citizens eeing drug-related violence may qualify for
refugee status under international and U.S. law. is section proposes that while not all individuals eeing generalized drug-
related violence qualify for refugee status under the applicable law, individuals belonging to certain sectors of society in Mexico
are potentially eligible for refugee status. Part VI discusses the concept of internal ight or relocation alternative, which if
applicable may bar refugee protection to Mexican asylum-seekers who are able to seek eective protection in a proposed area
of relocation within Mexico. is Article concludes with Part VII which proposes that complementary protection under the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “CAT”) may
be a worthwhile alternative for Mexican citizens eeing drug-related violence.10
1 For example, on March 26, 2010, the decapitated body of Heriberto Cerda, the police chief of a small town in Northern Mexico, was found along with the
letters “C.D.G.”, an acronym for the Gulf drug cartel, written in blood on the windshield of his patrol truck. Mark Walsh, Mexican Police Chief Decapitated
by Drug Cartel, Hungton Post, Mar. 27, 2010, available at http://www.hungtonpost.com/2010/03/27/mexican-police-chief-deca_n_515767.html.
2 Q&A: Mexico’s Drug-related Violence, BBC N, Apr. 15, 2010, available at http://news.bbc.co.uk/2/hi/7906284.stm [hereinafter Q&A: Mexico].
3 As one Mexican journalist explained, “[t]his is an emergency situation, a war[,] . . . it’s a question of life or death for [Mexicans eeing the drug violence].
James C. McKinley Jr., Fleeing Drug Violence, Mexicans Pour into U.S., N.Y. T, Apr. 17, 2010, available at http://www.nytimes.com/2010/04/18/
us/18border.html.
4 June S. Beittel, Mexico’s Drug-Related Violence, CRS R C, R40582, 9, May 27, 2009, available at http://www.fas.org/sgp/crs/row/R40582.
pdf; Human Rights Watch, Uniform Impunity: Mexico’s Misuse of Military Justice to Prosecute Abuses in Counternarcotics and Public Security Operations, Apr. 29,
2009, available at http://www.hrw.org/en/reports/2009/04/28/uniform-impunity [hereinafter Uniform Impunity].
5 McKinley, supra note 3.
6 Id.
7 Id. Approximately 896 Mexican citizens applied for asylum in the U.S. between January and April 2009, compared to 586 in 2006 when President Calderón
began the government’s crackdown on drug cartels. Todd Bensman, Mexico Drug War: Asylum Seekers Increasingly Turned Away by U.S. Immigration Courts,
Hungton Post, July 15, 2009, available at http://www.hungtonpost.com/2009/07/15/mexico-drug-war-asylum-se_n_234022.html. ese asylum
applicants include, among others, lawyers, journalists, and businesspeople. Id.
8 Bensman, supra note 7. Many immigration court records are unpublished, which makes it dicult to report the amount of successful asylum claims by
Mexican asylum-seekers eeing the drug violence in Mexico. Id. However, attorneys in Texas and Washington have reported many losses and only a few wins
in their recent asylum cases for Mexican citizens. Id.
9 1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6276, 189 U.N.T.S. 137 [hereinafter 1951 Convention]; 1967 Protocol
Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter 1967 Protocol].
10 e potential relief that Mexican citizens may obtain under CAT is protection from refoulement pursuant to Article 3. Article 3 provides that, “[n]o State
Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected
to torture.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85.
[hereinafter CAT]. Furthermore, while outside the scope of this Article, it is important to note that in addition to potential relief pursuant to CAT, there
are other mechanisms for the protection of individuals who do not qualify for refugee status under the 1951 Convention. For example, under international
human rights law, the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights provide potential grounds
Article
30
Merkourios - Criminal Justice and Human Rights - Vol. 27/72
II. Pervasive Drug-Related Violence in Mexico
In recent years, drug-related violence in Mexico has been on the rise with drug tracking organizations, or cartels,11
competing for control of routes for smuggling drugs across the border into the U.S. 12 Mexico is home to high levels of
drug tracking because the country is a leading producer and supplier of heroin, marijuana, and methamphetamine to the
U.S. market.13 Additionally, Mexico is the principal transit country for the tracking of cocaine from South America to
the U.S.14 Mexican drug tracking organizations display characteristics of organized crime and have been identied “as the
greatest drug tracking threat to the United States worldwide.”15 A small number of drug tracking organizations currently
control drug tracking routes between Mexico and the U.S.16 rough these corridors, drugs ow from Mexico to the U.S.
while rearms and drug prots, which support the drug trade, ow from the U.S. to Mexico.17 Drug tracking from South
America to the U.S. controlled by Mexican drug tracking organizations is a lucrative business with an estimated value of
$13 billion per year.18 e extremely protable business of drug tracking has led to competition among drug tracking
organizations over control of drug tracking routes.19 is competition has fueled widespread violence between rival drug
tracking organizations and against Mexican citizens and the Mexican government.20
A. Mexican Drug Tracking Organizations and Areas of Inuence
e major Mexican drug tracking organizations are involved in “polydrug operations,” meaning that they handle cocaine,
of complementary protection for individuals who are unable to obtain protection pursuant to the 1951 Convention. Convention on the Rights of the Child,
Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]; International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171
[hereinafter ICCPR]. Article 3 of CRC, which requires that the best interests of a child shall be a primary consideration in all actions concerning the child,
may provide a complementary ground of protection. J MA, C P I R L 173-74 (2007). More
specically, Article 3 may provide a mechanism for the protection of children who have ed generalized violence because this provision arguably involves a
duty on the States Parties to protect children, regardless of whether a well-founded fear of persecution or possibility of serious harm exists. Id. erefore,
in addition to requiring that children’s best interests shall be a primary consideration in a determination under Article 1(A)(2) of the 1951 Convention,
Article 3 of CRC may in itself provide a ground of complementary protection. Id. at 174. However, since the U.S. has not ratied CRC, this ground of
protection would not be relevant with respect to Mexican citizens seeking protection in the U.S. United Nations Treaty Collection, Ch. IV: Human Rights,
No.11: Convention on the Rights of the Child, http://treaties.un.org/Pages/ViewDetails.aspx?src= TREAT Y&mtdsg_no=IV-11&chapter=4&lang=en. In
addition, Article 7 of ICCPR provides that “[no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” ICCPR,
supra, art. 7. Since the Human Rights Committee has interpreted this provision as prohibiting refoulement to a place where an individual faces a real risk
of a violation of rights under ICCPR, Article 7 provides a form of complementary protection. GT v. Australia, Nov. 4, 1997, Comm. No. 706/1996,
U.N. Doc. CCPR/C/61/D/706/1996; G S. G-G and J MA, T R I L 306 (3rd ed. 2007). Article 7 of
ICCPR provides an important ground for complementary protection because, unlike CAT, ICCPR extends the principle of non-refoulement to prohibit
removal to a State where there is a risk that an individual will be subjected to inhuman or degrading treatment or punishment as well. MA, supra,
at 136. While these alternative mechanisms for international protection, including protection pursuant to CAT, are important, they do not confer upon
the beneciary the signicant rights provided in the1951 Convention. erefore, protection under the 1951 Convention, if possible, is a better option for
individuals seeking international protection. Id. at 17. See also infra note 316.
11 e terms drug cartel and drug organization have been used to identify Mexican drug tracking groups. While the term drug cartel has been used more
often, particularly by the media, some believe the term drug organization is more appropriate because the term “cartel” frequently refers to groups that set
prices and it has not been clearly established that Mexican drug organizations actually set illicit drug prices. Colleen W. Cook, Mexico’s Drug Cartels, CRS
R C, RL34215, 1 n.1, Oct. 16, 2007, available at http://ftp.fas.org/sgp/crs/row/RL34215.pdf.
12 Beittel, supra note 4, Summary.
13 Id. For at least the past forty years, Mexico has been one of the leading suppliers of heroin and marijuana to the U.S. Id.
14 Id.. Based on a 2009 Department of State report, up to 90% of cocaine tracked into the U.S. transits through Mexico. Id. at 1. (citing the Department of
State’s 2009 International Narcotics Control Strategy Report).
15 Id. (citing the U.S. Department of Justice’s National Drug reat Assessment 2009). Mexico’s prominence as a transit country is the result of the closure
of the Caribbean drug tracking route, which provided a channel for movement of drugs from South America, particularly Colombia, to the U.S. Id. After
the U.S. government increased anti-narcotics eorts with regard to smuggling in the Caribbean and Florida, Colombian drug cartels negotiated subcontracts
for the smuggling of cocaine into the U.S. with Mexican drug tracking organizations. Id. After gaining a substantial market share of cocaine tracking
into the U.S., the Mexican drug tracking organizations gained dominance over the “wholesale illicit market in the United States.” Id.
16 Id. According to a report of March 2009 by the Mexican Attorney General’s Oce, the six main Mexican drug tracking cartels are the Sinaloa cartel,
Beltrán Leyva cartel, Gulf cartel, Tijuana cartel or Arellano Felix cartel, Carrillo Fuentes cartel, and La Famillia. Q&A: Mexico, supra note 2. However,
another report replaces the La Familia cartel with Los Zetas as one of the six most dominant drug tracking organizations in Mexico. See source cited infra
note 22.
17 Beittel, supra note 4, Summary; Q&A: Mexico, supra note 2.
18 Q&A: Mexico, supra note 2. e Mexican government has insisted that unless eorts are made within the U.S. to reduce the demand for drugs, actions
taken against the drug cartels will fail because drug cartels will continue to earn billions of dollars by tracking illicit drugs into the U.S. Cook, supra note
11, Summary.
19 Cook, supra note 11, Summary.
20 Id. For example, drug tracking organizations, namely the Gulf and Sinaloa cartels, have perpetuated violence and intimidation of Mexican citizens and
public ocials through the use of “enforcer gangs.” Id.
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