By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
By Charles Lam
For three days, Jim hid in the body shop where he worked, sleeping in a broken-down van. When the officers finally showed up at the shop, he ran to a family member's home and was told the corrupt policemen already had visited. That afternoon, Jim's son drove his father to the border-patrol station in Brownsville, where Jim asked for protection, saying he was "desperate to avoid being murdered by two Mexican federal policemen."
For months, Jim was detained inside the Port Isabel Detention Center, 12 miles north of Brownsville. When an immigration judge finally heard the case, it was denied. The judge decided Jim's story was not credible and that the policemen were not acting as agents of the state.
Jim's attorney, Henry Cruz, decided to appeal, but this time, he would take a new approach. Instead of applying for traditional asylum, he would appeal under the United Nations Convention Against Torture.
The difference, says Cruz, is that under the convention, the applicant only has to show that he will likely be tortured by the police or with the police's consent and not that he belongs to a protected social group or is being persecuted for a particular political opinion.
On appeal, the immigration board reversed the lower court's decision and found that Jim's story was credible. The board also found that while the abuse was committed by the Matamoros police, it was perpetrated by the drug lord. The issue of relocation was moot, as Jim's polio and care requirements made moving away from family nearly impossible.
In the end, Jim won.
"With Convention Against Torture cases," says Cruz, who now practices law in Seattle, "the issue is, what does 'acting in an official capacity' mean? Are rogue police officers acting in official capacity? Former U.S. Attorney John Ashcroft used to say, 'No.' Well, he's completely wrong, and if you look at civil-rights case law, [police] don't have to be on duty or in uniform as long as they show they have authority. And in this case, they had handcuffs and weapons and portrayed themselves as officers. So even if they were doing it outside of their office, you can't erase the fact that they are police agents and using their tools for drug traffickers. And it doesn't have to be an official policy of the police department to help drug traffickers, either."
Or, as Elvia Garcia, an attorney in El Paso puts it, "It's like the Ku Klux Klan in the 1950s. Police officers would stop people on the road, and then turn them over to the KKK. The same thing is happening in Mexico with impunity."
Cruz concedes that he and Jim got lucky with a sympathetic judge out of Las Vegas and that which judge you draw severely affects an asylum applicant's chances. However, he believes more asylum cases can be won by applying the anti-torture convention.
"Theoretically it could work for anybody," says Cruz, "and it should be as simple as that. Although it never is. The hurdle is showing the person will likely be found and tortured, so you need to have a good set of facts. However, the simple fact is that there is an increase of drug violence recently and the conditions are changing drastically, so that helps these cases. There will be a lot more losses before successes, but under the law, many more of these cases should be getting asylum than are."
At the end of the day, the reason asylum for Mexicans is so tough may come down to politics.
The U.S. government has earmarked more than $1 billion to help Mexican President Felipe Calderon's government battle its country's drug problem. Turning around and granting asylum to someone fleeing Mexico's federal police amounts to an admission that Congress has been bankrolling criminals.
Instead, whether through direct pressure or by controlling the message that reaches immigration judges who, after all, still aren't independent, the United States has kept its admission rates low, despite all the evidence that Mexico is saturated with corruption.
Calderon himself has been increasingly frank about the dire situation his government faces. Earlier this month at a national-security conference in Mexico City, Calderon said that the cartels have expanded their operations into "an attempt to replace the state"—a bloody endeavor Mexico's national intelligence service says has killed 28,000 people since Calderon took office.
"The president even admitted they're losing the drug war; it couldn't be any more black and white," says Campbell. "The more aggressively the Unites States tries to stop drug trafficking and immigration, the more it creates pressure in Mexico.
"The drugs were always being trafficked, but it didn't produce so much violence because it was channeled through very specific relationships that kept a lid on things," Campbell says. "It's Calderon's attempt to break up those old relationships, with direct U.S. support, that's provoked this four-year surge in violence and torn Mexican institutions apart. Mexico is like Iraq and Afghanistan, in that hard-line policy has produced precisely what they're trying to stop. The problems get worse because of our attempts to fix it."