On Being an Expert Witness When Mexicans Request Asylum

People who follow my writing generally don't know that one of the biggest parts of my consulting business is providing expert witness testimony in US asylum cases where the applicants are Mexican nationals. There has been an increase in both the number of asylum applicants from Mexico, as well as media coverage of the rare cases where they're actually granted. According to the Justice Department’s Executive Office for Immigration
Review, in FY 2010 it received 3,231 asylum requests from Mexicans but approved only 49. Another 1,671 requests were withdrawn. So, I just wanted to take the opportunity to tell you what it's like for me, as a subject matter expert on the drug war, to be a part of these cases.

It starts when I get an email from an immigration attorney asking for my help. The first thing I do is ask to see the applicant's declaration, which is a statement (either in a typed document or a USCIS Form I-589) of why he or she fears being returned to Mexico. This helps me determine whether or not I can help in the case based on my expertise, and how strong or weak the case might be.

If I think the case is strong enough, and it involves an area of Mexico and a TCO or smaller criminal organization with which I'm familiar, then I start to put together an affidavit for the court. My affidavits include information about my professional background and experience, general country conditions for Mexico, the evolution of the drug war and the TCO(s) in question, and the specific situation of the applicant. I finish off with my opinion as to why the applicant would be harmed or killed if forcibly returned to Mexico.

There are several different categories under which one of these cases can be classified and argued by the immigration attorneys. There's withholding of removal, cancellation of removal, Convention Against Torture, affirmative cases (in which the applicant has a visa and applies for asylum prior to its expiration), and probably a couple of others I haven't come across.

One of the critical aspects of these cases for the attorneys is showing that the applicant is part of a particular social group; in essence, that everyone in that designated group is subject and vulnerable to harm and/or death in Mexico. One example would be "current or former police officers who refuse bribes and don't succumb to threats," or informants or witnesses to crimes committed by TCOs in Mexico.

Once my affidavit is done, I send it to the attorney and wait for the hearing to come up. My testimony is always telephonic, and the hearing consists of the immigration attorney, an attorney representing the US government (usually from ICE), and the judge. I've dealt with mostly really nice judges, but some have just been outright rude. I've also dealt with very professional and pleasant government attorneys, and others who think they're on the set of "Law & Order" and have the mission to rip me to shreds. After all is said and done between the attorneys and applicant's and expert's testimony, it's ultimately up to the judge to decide whether or not the applicant should be returned to Mexico.

More often than not, they're sent back, but this doesn't stop some very hard-working immigration attorneys from working their tails off to convince a judge to allow their clients to stay. Most of the cases I've come into are really tragic, including police officers being kidnapped and tortured, a mother whose children were kidnapped and held for ransom while trying to cross the border, and a DEA information who was hung out to dry after risking her life to put Mexican drug traffickers in jail. It's hard to maintain a professional distance when you know that many of these applicants will be returned to Mexico and likely harmed or killed by one of the TCOs when they get there. Once my work is done as an expert, I rarely find out what happens to the applicant, and sometimes I worry that they've become just another faceless crime statistic in Mexico.

Doing this job has given me a very interesting perspective on immigration - a subject on which I usually prefer not to comment. My own family emigrated to the US from Cuba in the 1960s, so I'm very familiar with the asylum process and the heated politics surrounding it. I have a strong feeling that we're not going to start seeing larger numbers of Mexicans being granted asylum because that would open the floodgates for applicants, and the US system is not prepared to deal with that. It's a hair-breadth distinction that separates the Cuban asylum applicant from the Mexican applicant in the eyes of US immigration law, and that's infuriating to many. 

Regardless of the debate, I've spoken with these asylum applicants and their fear of returning to Mexico is not invented or imagined. Yes, they came to the US illegally, and that's enough for some people to say "send 'em back!" But knowing the violence that awaits them specifically makes it very hard for me to adopt that attitude.

Being an expert witness is tragic and fascinating work. These true stories are more engrossing than most fiction I've read, and I wish that more Americans could be made privy to these applicants' journeys and situations. I just hope that my small contribution as an expert in these cases can make some difference, and maybe help save some lives in the process.

Comments

[Toni Loftin]

Sylvia-

I'm curious what judges hear asylum cases--U.S. District Court judges?

With the rise of DTO activity in Central America, have you had the opportunity to testify for an Central American asylum applicant?

Thanks again for an informative post--I think the perception is that the U.S. courts grant asylum willy-nilly whereas the reality (as demonstrated by your statistics) is something else altogether.

[Sylvia Longmire]

@Toni - I don't do CentAm cases, but the attorney who brought me in on this work specializes in that area. He was getting a ton of Mexico cases and referred them to me, and when I get CentAm cases, I refer them to him. I believe that @wmmckay on Twitter does this sort of work, too.