Emilio Gutiérrez Soto was processed like many others who cross the U.S./Mexico border seeking refuge. He was brought under the jurisdiction of U.S. Immigration and Customs Enforcement (ICE), separated from his fifteen-year-old son, denied bond, and incarcerated for seven months. Gutiérrez Soto, a journalist, came to the United States in 2008 seeking political asylum because he wrote a handful of articles criticizing the Mexican military in 2005. His reports chronicled harassment and threats of citizens in Juarez, a city notorious for its ghoulish murder rate, rampant corruption, and drug cartel violence.
As Charles Bowden reports in the July/August issue of Mother Jones, fifty soldiers raided Gutiérrez Soto’s home, threatened and harassed him. Then, a friend with ties to the military told him he would be murdered if he did not leave immediately. A single father, Gutiérrez Soto is now staying with his son in New Mexico, awaiting his immigration hearing. Because his application for a work visa has yet to be processed, he cannot earn money legally in the United States. Tonight, Charles Bowden and other advocates are hosting a fundraiser for Emilio and his son in Las Cruces, N.M., to help them through this tough period. (Disclosure: Nation Books, where I work, is Bowden’s publisher.)
In order to get political asylum in the United States, an individual needs to prove that he or she has been persecuted in the past, or fears she will be persecuted in the future. It is not hard, per se, to get political asylum as a reporter in the United States, but establishing persecution can be legally tricky. A reporter must prove that an occupation he enters into voluntarily makes him the target of persecution to the degree that he cannot simply move to a different part of the country. Some try to prove that, under their government of origin, being a journalist becomes an immutable characteristic, like sexual orientation or ethnicity, and that standing up for free expression or a certain opinion marks them forever.
In a way though, the single most important variable in asylum and refugee cases is the applicant’s country of origin. Chris Nugent, senior pro bono counsel at Holland and Knight LLP in Washington D.C., explains that if an asylum seeker’s home country is publicly known as repressive, the applicant will have a far easier time winning his or her case. “Iranian cases tend to be a shoo-in,” he explains. “So do North Korean and Cuban ones.”
For citizens of some countries, procedural privilege has been legislated by the U.S. government. According to a recent Congressional Research Service Report on Refugee Admissions and Resettlement Policy:
Special legislative provisions facilitate relief for certain refugee groups. The “Lautenberg Amendment” allows certain former Soviet and Indochinese nationals to qualify for refugee status based on their membership in a protected category with a credible fear of persecution. They do not have to establish persecution on an individual basis as do other refugees…Applicants for refugee status under the special provision are only required to prove that they are members of a protected category with credible, not necessarily individual fear of persecution. By contrast, the INA requires prospective refugees to establish a well-founded fear of persecution on a case-by-case basis.
In essence, the Lautenberg Amendment—which, to be clear, applies to people seeking refugee status while they are still living in their home countries—makes it so that a reduced evidentiary standard is required from individuals coming from countries like Laos or Russia. These individuals need not impress upon the court their well-founded fear of persecution. Because there is judicial faith that the countries they come from are repressive, these individuals are automatically grouped into a protected category. An official from a committee with oversight explained to me that this amendment simply “codified” long-standing judicial feeling and de facto practice.
Unlike refugees from post-Soviet states, Mexican asylum seekers are not given the privilege of a low burden of proof or expedited process. Carlos Spector, Gutiérrez Soto’s attorney and the lawyer who won the first ever Mexican-U.S. asylum case in the 1990s, says that in his experience “the problem has not been policy, it has been procedural.” Mexicans who cross the border and immediately petition for asylum find their cases first mediated by ICE—not immigration judges. They are typically detained for significant periods, and find their hearings delayed seemingly ad infinitum.