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Immigration Measure's Impact on Asylum Seekers is Focus of Concerns

As the debate on immigration reform advances, immigration attorneys fear that an emphasis on strict border enforcement will make an already difficult task more strenuous for asylum seekers.

Christian Chaidez, 30, was granted by an immigration judge a withholding of removal after applying for asylum. Ten of his family members were murdered in Ciudad Juárez for refusing to pay extortion to criminal gangs.

EL PASO — Christian Chaidez didn’t mince words Tuesday as he sat with his mother and attorney in a law office here, just a few miles from Chaidez’s native Ciudad Juárez, Mexico.

“I want to thank [U.S. Immigrations and Customs Enforcement] and the judge that made the decision to let me stay here in the United States,” he said. “If it wasn’t for them, I don’t know what would become of my life.”

Chaidez, 30, fled to the U.S. in 2011. He and his mother are two of the last of their family members standing. Ten of their relatives, small-business owners including Chaidez’s father and grandmother, were murdered for refusing to pay extortion to gangs during the height of Juarez’s brutal drug war.

In her order issued in June, El Paso-based immigration judge Guadalupe Gonzalez said that the court believed Chaidez illustrated a reasonable fear of persecution in Mexico, which his attorney said was a rare decision. His mother is already a permanent resident.

“We finally won a case where we have sought asylum on the basis of extortion,” said Carlos Spector, Chaidez’s attorney, who has more worked on more than 70 asylum cases. “The biggest problem facing the Mexican community today is extortion, yet [U.S. immigration] courts have refused to grant asylum on the basis of extortion because it’s not perceived to be a ground covered by asylum law.”

As the debate on immigration reform advances, however, immigration attorneys like Spector said there are concerns about what the eventual bill may do for people like Chaidez, who seek to live in the U.S. legally out of fear for their lives but whose lives may be at the mercy of a deal brokered by Congress on immigration reform.

The current version of the bill, S. 744 by the U.S. Senate’s so-called Gang of Eight, passed through the upper chamber after a strict border-enforcement amendment was attached. The bill creates a pathway for citizenship for undocumented immigrants, but the amendment calls for more fencing and agents on the southwest border. The GOP-controlled House is set to craft its own version of the bill, and whether it passes could depend on what enforcement measures are adopted.   

“If we do get a primarily law enforcement bill, I think people [seeking asylum] are going to be detained for a longer period of time because of the law enforcement emphasis,” Spector said. "This sends a message to the asylum seeker: You are going to be locked up.” 

Chaidez was brought to the country by his parents and lived in El Paso as an undocumented immigrant. He graduated from high school but was deported years later after being pulled over and arrested for an unpaid traffic citation. He re-entered the country illegally and was served in 2012 by Immigrations and Customs Enforcement with a notice that it intended to return him to Mexico. He was then placed in detention for a year after seeking protection. 

Gonzalez issued what is called a withholding of removal, which allows Chaidez to live and work indefinitely in this country. In the case, Spector also argued that if Chaidez was deported, he would likely have been turned over to criminal groups by Mexican immigration agents upon his arrival. 

There are two paths to apply for asylum: the “affirmative” process and the “defensive” process. The affirmative process is taken by an immigrant who is already in the U.S. legally and who applies and undergoes an interview with a federal asylum officer. A decision is subsequently rendered. The defensive process involves being detained, either at a port of entry or in the interior, and being subject to expedited removal from the U.S. under current immigration law. The detainee can seek asylum and plead his or her case before an immigration judge. 

Spector conceded that drawing attention to his client’s case — and the slaughter of most of his family — would probably be fuel for border hawks who want to seal the border, pointing to not only Chaidez's attempt to flee but also his previous deportation. But, Spector said, it’s not that simple.

“Our concern is that if the border is sealed, that will increase the persecution of families” in Mexico, he said. “Extortions will become a greater percentage of the criminal pie."

Ira Mehlman, a national spokesman for the Federation for American Immigration Reform, a nonpartisan group that advocates for increased border security and limited legal immigration, said asylum laws should be respected and used for what they were intended: to protect people singled out for persecution based on certain factors like political activism, gender and race.

He said that because he is not familiar with the Chaidez case, he couldn’t speak to it directly. But generally speaking, he added, while people face tragic conditions in other countries, some could manipulate current law for their benefit.

“Everybody who is living in Juárez is living in a dangerous city,” he said. “The U.S. certainly employs a role in trying to ameliorate that through policy. But the idea we can take in that many people … is certainly unworkable.”

He said people on both sides of the political spectrum are trying to amend policies. The people on the right, for example, want to include Chinese immigrants who disagree with the country’s one-child-per-couple policy while the people on the left want to see exceptions for victims of domestic violence. And an effort to change the requirement that most asylum seekers do so within one year of their arrivals may also lead to potential abuses.

“They want to eliminate that and make it possible for people to come here and spend some time and then when they get caught, seek asylum,” he said.

Eduardo Beckett, the former director of the Las Americas Immigrant Advocacy Center in El Paso, said current asylum laws make it difficult for anyone from Latin America to be granted permission to stay, with the possible exceptions of Cuba or Venezuela.

A client of his, Gilmore Portillo Amaya, 23, was determined to leave El Salvador after refusing to work for the notorious MS-13 gang, which the U.S. government has designated sanctions against. But after surrendering to U.S. Border Patrol near Brownsville earlier this year after running out of food and water, Portillo remains in detention. He's currently seeking asylum based on his belief that the police in El Salvador are complicit with the gang and any decision not to work for them is a death sentence. 

“We don’t have Nazi persecution and World War II is over, but the world changes, and asylum laws need to change with the times,” Beckett said. “As long as organized crime reigns in Third World countries, we’re going to continue to have asylum seekers from around the world.”

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