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Exile on Main Street

There are two paths to asylum in the United States. Mexican journalist Emilio Gutiérrez, whose life was threatened by the Mexican military, may have taken the wrong one.

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Mexican journalist Emilio Gutiérrez has done what’s been asked of him. He’s stayed out of trouble, and he’s put the seven months he spent in an American detention center behind him. Now he just wants to know if he will be allowed to remain in the United States or whether he will be returned to Mexico, where he believes his life is in danger.

On Friday, he may get his answer when he appears before an immigration judge in El Paso. Gutiérrez has been seeking asylum since June 2008, when he fled the small Chihuahua town of Ascensión after receiving death threats for his reporting on alleged corruption in the Mexican military. So clear and present was the threat, Gutiérrez says, that he and his 15-year-old son had only minutes to pack before heading to the U.S. port of entry at Antelope Wells, N.M., in the middle of the night.

Once at the border, Gutiérrez told U.S. authorities that he was in danger and needed asylum. Immigration and Customs Enforcement agents admitted Gutiérrez into the country — and immediately placed him in a locked and guarded detention center. There he sat for seven months, until January 2009, when he was released as a parolee. His son was held in a separate detention center for juveniles and released after two months.

Gutiérrez was detained because he didn’t have a legal way to enter the U.S. when he arrived at the border late that night. When another Mexican journalist, Alejandro Hernández Pacheco, asked U.S. authorities for asylum last summer, after he was kidnapped in Mexico, he was told he would be granted a meeting with an asylum officer — not a judge. And then he went home to his temporary residence in El Paso, where he has waited with his family ever since. He was never detained. Unlike Gutiérrez, Hernández first entered the U.S. legally, on a 30-day work visa.

Two journalists — both apparently facing imminent danger — two very different routes to pursuing asylum in the U.S. Advocates for foreigners seeking asylum because they face danger either at the hands of the government or drug gangs or both say it is unfair to penalize those who do not have the luxury of time to plan an orderly way into the United States.

U.S. officials say they cannot compromise the nation’s security, particularly in a post-9/11 world. They cite at least two cases in which someone who had applied for asylum later committed acts of terrorism against the U.S. Last month, the Department of Homeland Security rejected a petition submitted by the National Immigration Justice Center, an immigrant rights advocacy group, and a coalition of more than 30 organizations asking the agency not to detain “arriving aliens who are found to have a credible fear of persecution or torture” as defined by the Immigration and Nationally Act.

In her response, Homeland Security Secretary Janet Napolitano said her department is “sensitive to the unique circumstances facing bona fide applicants for asylum and other forms of humanitarian immigration protection, but detention is an important element of an effective immigration system.” She pointed to the cases of Ramzi Yousef, the mastermind of the 1993 World Trade Center attack, who entered the country with fraudulent documents issued during an asylum claim, and Mir Aimal Kasi, who killed two CIA employees with an AK-47 in Virginia after seeking asylum in the U.S.

Gutiérrez and his El Paso attorney, Carlos Spector, say they are confident that the judge will be convinced Gutiérrez faces a credible threat and that he was persecuted in Mexico for expressing his political opinion — two factors on which an asylum claim hinges. The facts of his case — that Gutiérrez was warned, threatened and eventually followed by members of the Mexican military after reporting on their alleged human rights violations — proves his point, Spector says.

“I don’t think the government is going to say, ‘We’re not going to grant you asylum now, go right back to the bridge,’” Gutiérrez says. “I think that if the ruling doesn’t go our way, we are going to fight to convince whoever it may be that the political process in Mexico is mistaken and that we [reporters] are part of that collateral damage.”

Gutiérrez’s case represents the most difficult route taken by asylum seekers, the defensive process, defined by the government as a request “as a defense against removal from the U.S.” Spector says Gutiérrez had no choice — he didn’t have a legal means to enter the country but had to leave Mexico immediately.

“We are telling people not to go the bridge if they can avoid it. Of course, if you don’t have any papers, you have no other option when you are fleeing for your life,” Spector said in an interview with the Tribune. “There are too many people with the ability to enter lawfully who would go and spill their guts out at the bridge and once you do that they are going to lock you up because you are an arriving alien.”

Because the defensive process is by definition more adversarial, Spector says, it can make or break a person’s claim regardless of the facts surrounding the request. “When you go to court, it’s a prosecutor trying to deport you and a judge who used to be a prosecutor trying to deport you,” he says.

Hernández’s story began last summer when he was kidnapped — by criminals who he says threatened repeatedly to turn him over to the Zetas cartel — en route to cover a prison break as a cameraman for Televisa. He was held for days and beaten. He finally escaped after his captors began to feel pressure from law enforcement.

Mexican authorities subsequently presented him at a press conference where he was identified as a journalist, which he says placed him in even greater danger. After 19 days of meeting with government officials to provide information about his ordeal, he was sent home without police protection.

Heeding the advice of Spector, he obtained the 30-day visa, entered legally and avoided detention. It’s what the government calls affirmative asylum, which involves an applicant already in the U.S. who applies for and is granted an interview with an asylum officer.

“I arrived like any other person with permission to enter. My wife and sons arrived at the bridge but they were only detained a few hours,” Hernández says. His wife is also awaiting her initial interview with an immigration judge. Meanwhile, neither has permission to work in the U.S.

Statistics from the U.S. Citizen and Immigration Services department show that the affirmative process yields more positive results, but not by much. In 2010, there were 2,320 affirmative applications by Mexicans seeking asylum in the United States; 115 were granted. In 2009, 1,393 applications were filed; 150 were approved. (A government official said a case could mean an individual filer or an entire family.) The Executive Office for Immigration Review, which oversees defensive asylum requests, did not have data for 2010. In 2009, the government received 2,816 defensive asylum requests, 62 of which were approved and 366 were denied; 1,750 were voluntarily withdrawn. In 2008, it received 3,459 applications; 72 were approved, 250 denied and 1,600 were withdrawn.

Despite the downward trend, Spector’s list of clients continues to grow. He recently confirmed he is representing the family of Marisela Escobedo Ortiz, who was shot dead last month in front of the governor of Chihuahua’s palace as she protested the 2008 murder of her 16-year-old daughter, Rubí Frayre. Frayre’s alleged killer was arrested but later released by Mexican authorities. Escobedo’s murder was captured by security cameras at the Palacio de Gobierno de Chihuahua in Chihuahua City, the state capital. Several members of Escobedo’s family fled to the border at El Paso hours after her murder and subsequent threats against them.

Spector declined to comment on the family’s current whereabouts or whether they are in U.S. custody, but said the fact that the Mexican government escorted the family to the port of entry reflects its own admission that it lacks the confidence or resources to protect the family.

Dan Kowalski, an Austin-based immigration attorney and editor of Bender’s Immigration Bulletin, argues there is very little incentive for U.S. officials to amend the current policy.

“The people who administer the parole policies — because of political constraints and job constraints — they want to keep their jobs,” he says. “It’s much easier to keep someone locked up and that way you know that they’ll show up for their hearing whereas if you let them out they may abscond, they may go to work without work authorization, they may commit a crime. That’s the rationale that ICE gives for denying a parole request.”

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