People in need of international protection in a world of restrictions

Refugees are people who meet certain criteria established in national and international legislations, which give them right to receive special protection in the destination country (^{Espinar Ruiz, 2010}). Therefore, asylum is a legal construction, which as such varies from one country to another in function of the international treaties they ratify and the way these are developed in the national legislations. In any case, this figure is similar between countries, since most of them, including Mexico, adhere to the 1951 Refugee Convention, Geneva, and the 1967 Protocol Relating to the Status of Refugees, New York.

There is a usual distinction between: i) refugees who have the status by a certain State or the UN High Commissioner for Refugees (UNHCR); and, ii) de facto refugees, i.e., those who meet the conditions established by the Convention and Protocol, but who owing to various reasons do not have such status in the recipient country: they did not ask for it; they asked for it, but was denied; the State in question does not recognize this juridical figure; among others.

Among the refugees defined in terms of the 1951 Convention and the migrants called “voluntary” there is a grey area of people with need for protection as valid as those of the “convention refugees” (^{McAdam, 2006}; ^{Betts, 2013}). To address such individuals, several countries have decided to broaden the concept of asylum as well as utilize other additional protection instruments.

In relation to Latin America, some countries, Mexico among them, have adhered to the 1984 Cartagena Declaration on Refugees, which expands the definition for the refugee status. Plus, some national legislations have incorporated instruments that grant equal or lower protection than someone with refugee status, though it may be granted to people who do not meet the requirements to be a refugee (^{McAdam, 2006}; ^{Espinar Ruiz, 2010}); this is the case of CP in Mexican legislation.⁷ Other ejection factors that have become noticeable in the debate on asylum are climate change, environmental degradation and natural or anthropogenic disasters. In any case, people with acute needs are excluded from the international umbrella protection, for example, those who run away from extreme poverty –save if these individuals have other characteristics that meet the parameters to receive international protection at the same time.

Those who meet the requirements find it increasingly complicated to attain international protection, since most of the developed countries have privileged migration control over their commitments regarding asylum and refugees. For decades in Europe, there has been a progressive withdrawal from the commitments of the 1951 Refugee Convention, under the fallacious reason that most are economic immigrants (^{Fassin, 2015}). That same discourse has been wielded by the US since the 1980’s at least (^{Aguayo Quezada, 1986}) and has reached a peak under Donald Trump, who promoted a political agenda against asylum seekers who arrive from the southern border.

The States of the Global North introduce a combination of obstacles with a view to preventing those who seek / need international protection from reaching their territories, dissuading they even try or else, de facto denying asylum or the refugee status for the individuals who reach these countries (^{Gammeltoft-Hansen & Tan, 2017}; ^{FitzGerald, 2019}). In this way, countries have externalized their boundaries by means of pressure and arrangements so that the origin and transit countries detain irregular migrants and those in need of international protection. In this sense, the term neo-refoulement has been coined to refer to the return made by those who seek asylum and other migrants toward regions in the origin or transit countries before they reach the territories where they might process their requests, being understood more as a problem related to security than protection to refugees or asylum (^{Hyndman & Mountz, 2008}). Another mechanism has been the creation of contention areas (^{FitzGerald, 2019}). For the European Union, these areas have been set up in the south of the Mediterranean; in the case of the US, Mexico has served as a country to contain unwanted migration flows.

Moreover, the systems to detect and deport in the destination countries that intend to discourage irregular immigration also dissuade the asylum seekers to make an application (^{Hyndman and Mountz, 2008}; ^{Amnistía Internacional, 2008}). The detention centers establish long waits while the cases are reviewed, while migrants are threatened to be deported to their countries of origin if their petitions are denied. The long waits are a privileged dissuasion mechanism among the asylum policies of the Global North, not only when applicants are detained, but also when waits take place in conditions of vulnerability, with no access to basic services and in dangerous territories (^{París Pombo, 2020}).

Some of the barriers most difficult to overcome for asylum seekers are the very international protection policies; they impose long, expensive and tortuous administrative or juridical processes on asylum seekers, frequently with no legal accompaniment and without economic support. In these processes, there is almost always suspicion on the testimony of the applicant, mistrust has thus become the dominating tone in the analysis of asylum requests. As a result, only a minority of requests is legally recognized with the status of refugee (^{Fassin, 2015}).

Before protection instruments, some authors have read the systems of asylum in light of turning them into instruments in favor of the securitization of migrations. In this sense, ^{Gammeltoft-Hansen and Tan (2017, p. 29)} speak of the “dissuasion paradigm” instrumented in developed countries and imposed on transit ones: the main response in the face of enforced migrations is preventing people in need of international protection from reaching their borders at all costs.

A brief review of the historic background

The recent history of refugees in Mexico dates back to the 1980’s, with the arrival of mass flows of Central Americans during the armed conflicts in Guatemala and El Salvador, the creation of COMAR in 1980 and the opening of the UNHCR office in 1982. In the case of Guatemalan refugees, the answer of the Mexican government varied: 1) at first, in 1981, it did not accept they were refugees and deported about two thousand; 2) in 1982, it accepted UNHCR in Mexico and refugee camps in Chiapas were created. In the absence of ad hoc legal instruments, the refugees were regularized by means of non-migrant border visitor visas (FM8) that had to be renewed every 90 days, or as agricultural workers; 3) in 1984, it relocated almost half of the refugees in the camps to Campeche and Quintana Roo (^{Aguayo Quezada, 1986}; ^{Aguayo Quezada & O'Dogherty, 1986}; ^{Rodríguez Chávez, 2011}). After the signing of the peace agreements, thousands of Guatemalans decided to return to their places of origin, while some others stayed in Mexico and obtained Mexican nationality (^{Lerma Rodríguez, 2016}).

While camps in the south of the country emerged, hundreds of thousands of people from Nicaragua, El Salvador and Guatemala entered Mexico looking for security. This population, considered disperse refugees, was also under the command of UNHCR (^{París Pombo, 2017}).

Paradoxically, the recognition of the figure of refugee in the General Population Law in 1990 and its regulation in 1992, occurred at a time when pressure for asylum decreased. At once, over such decade the flows of Central American migrants crossing over Mexico heading for the US as well as detentions and deportations by INM noticeably grew (^{París Pombo, 2017}). In 2002, two years after the ratification of the 1951 Convention, in Mexico, COMAR started to analyze requests for the refugee status individually via investigation (^{Rea Granados, 2016}), taking the same recognition logic followed by Global North countries. In spite of which, Mexican asylum policy remained particularly restrictive: between 2002 and 2011, COMAR received 5 255 requests, of which 1,186 were positive (^{Cobo and Fuerte, 2012, p. 63}). That is to say, Mexico granted on average the refugee status to 118 individuals a year.

In 2011, the Congress approved the Law on Refugees, which is analyzed below.

Refugee Status and CP ⁸

Article 13 of Law on Refugees set forth the suppositions under which the status of refugee will be recognized. In its three sections, it retakes the definition of refugee in the 1951 Geneva Convention –incorporating gender as a reason for persecution– (fraction I), the extended definition in 1984 Cartagena Declaration (fraction II), and the definition of sur place⁹ refugee (fraction III) (^{ACNUR & COMAR, 2012}; ^{Impacto Social Consultores, 2019}). The Mexican state is urged to recognize the status of refugee for every foreign individual who meets such definitions. The three suppositions necessarily imply that the request for the status of refugee is applied at an official Mexican crossing point or else, when the foreign individual is already in Mexico.

According to Article 12 of the Law on Refugees, when the refugee status is recognized in Mexico, this migratory benefit also applies for the spouse, partner, blood relatives of the spouse up to second degree who economically depend on the applicant and who are as well in Mexico. In the understanding that the status of refugee according to provisions in Article 54 of the Law on Migration has the same migratory and legal effects as permanent residence in Mexico.

CP means not to return certain individuals who had been previously denied the refugee status “to a territory in another country where their life would be at risk or would be in danger of experiencing torture or other cruel, inhuman or degrading treatments” (^{Law on Refugees, 2011: fraction VII of article 2}).

Deciding that an individual is eligible to receive CP must be notified in the same resolution that rejects the status of refugee (^{Law on Refugees, 2011, art 30}). In terms of migratory status, this legal figure has the same juridical effects as refugee status in Mexico and people under this protection become permanent residents. However, it must be stated that CP does not have some rights conferred to people deemed refugees; for example, it does not include family reunification, refugee status for their relatives and access to public services and programs in order to facilitate their integration in the terms of the Law on Refugees (^{Sin Fronteras I. A. P., 2016}). Besides, the Secretariat might revoke CP if the causes that motivated the protection disappear (^{Law on Refugees, 2011, Art. 32 II}).

Administrative process

Foreigners may ask for the status of refugee in any of the four COMAR offices (in Mexico City; Acayucan, Veracruz; Tapachula, Chiapas; and Tenosique, Tabasco). In the rest of the cities, processes associated to the status of refugee have to be carried out in INM, which sends the information to the nearest COMAR office. Foreigners can also ask for asylum at migratory stations and airports (^{CEAR, 2018}).

COMAR must provide foreigners with information on the right to apply for a refugee status and the proceedings (^{Regulation of the Law on Refugees, 2012, Art. 15 I}). INM has the attribution of detecting people who presumably need international protection and communicate them their right to ask for the recognition of the status of refugee (^{Regulation of the Law on Refugees, 2012, Art. 16 I})

In principle, every individual has a 30-working-day deadline to process their request after arriving in Mexico. Though, people can ask for the status of refugee after these 30 days, if they justify it in writing and it is accepted by the authority.

Once the request for the status of refugee is made, it has to be admitted by COMAR, which delivers the individual a certificate that recognizes them as requesters and so, it accredits that the process has begun (^{ACNUR México, 2020}). As of the moment when the individuals express they want to apply for the status of refugee in Mexico, they cannot be deported (^{CEAR, 2018}). With this certificate, they can ask for a visitor’s card owing to humanitarian reasons (VCHR) at INM, which allows the applicant to work and travel at will over the national territory for a year.

During the proceedings to obtain the refugee status, the applicant must remain in the state they made the application and weekly attend COMAR or an INM office to sign a certificate of permanence in the state, if they do not attend two weeks in a row, the application is deemed void (^{ACNUR México, 2020}).

The applicants must fill in a questionnaire and have an interview that defines whether their fear of persecution is well-based in accordance with the Law on Refugees.

Then, COMAR staff interviews the applicants, studies the cases and issues a resolution. In order to do so, the state has a 45–day deadline, extendable to forty– five days plus ten days to notify the resolution. That is to say, the longest duration of the process to obtain the status of refugee legally provided at a first instance is one hundred days (^{CEAR, 2018, p. 16}).

If the resolution is favorable, the individual has to attend to INM to process their permanent residence in Mexico as a refugee. If the resolution is not favorable, the solicitant may resort to various sorts of resources (in this regard, see ^{Kerwin, 2018}).

Barriers for applications

The contention policy carried out by Mexican authorities is the first barrier to grant the right to ask for refuge in Mexico, since it has as an objective to detect foreign people who enter the country irregularly and deport them soon (^{Kerwin, 2018}).

^{Amnesty International (2018)} found out that Mexican authorities had returned asylum seekers and people with credible fear to their countries of origin, thus compromising their lives and physical integrity. By contrast, the same authorities had not duly performed the identification of the prospective refugees, nor had they fully informed them about their right to ask for asylum in the country (^{Kerwin, 2018}; ^{Amnistía Internacional, 2018}). Even if they receive the information, at once they are discouraged to apply as they are told the difficulties they will face to successfully proceed (^{Human Rights First, 2017}).

The rule to ask for asylum within 30 working days, counted from the next day after entering the country, has become an impediment for people who deserve this recognition to receive protection (^{Sin Fronteras I. A. P., 2016}). In this regard, UNHCR has pointed out that the best practice is not to set a deadline to ask for asylum (UNHCR Regional Legal Unit cited in ^{Rea Granados, 2016}).

Applications received

The number of applications for the refugee status grew exponentially from 2013 to 2019, distinguishing the fact that in only four years this figure changed from 3 424 to 70 302 applications (graph 1). Figures would possibly be higher if the barriers mentioned above did not exist, and as argued below, if the overall functioning of the asylum program was simpler.

Source: own elaboration based on data from ^{UPMRIP, COMAR and SEGOB (2019}, ²⁰²⁰⁾.

Graph 1. Applications for the status of refugee received by COMAR, 2013-2019* * Data for 2019 are preliminary.  

The increase is propitiated by the combination of various factors such as:

Another aspect to underscore in graph 1 is that up to 2016, the majority of applications was from Central America; however, as of 2017, some countries outside this region (especially South America and the Caribbean) start to become important. Accordingly, it is worth analyzing the number of applicants by country of origin.

The country of origin of most of the applications is Honduras, which year after year produced the highest number of applications and 42.4 percent of the period total (Table 1). It is followed by El Salvador which from 2013 to 2017 showed application figures similar to Honduras’, but with much lower figures the last two years; for example, in 2019 applications from Salvadorans were 8 991 (12.8%) v. 30 045 Hondurans (42.7%). To a lesser extent, Guatemala and Nicaragua also participate among the countries of origin of the applicants. Application figures for these four Central American countries are a thermometer of the situation experienced by citizens in the countries of origin. The third country with the most applications is Venezuela, which evinces the worsening of the political situation in that country which began to be noticed in 2016.

By 2019, the application figure from Venezuelans was the largest in absolute terms for this population over the analyzed period with 4 662 applications. The case of applications of Cuban citizens must be understood in the context of the termination of the “wet-foot/dry-foot policy” by Obama’s administration in 2017. While between 2013 and 2016, annual applications of Cuban citizens did not surpass a hundred, in 2017, they were 796. However, this pales in comparison with the events only two years later: after a drop in application figures in 2018 to 214 they soared to 8 677 in 2019. This is explained because that year, the National Institute for Migration stopped issuing a so called “departure document” (oficio de salida) with which Cubans used to travel to the north to enter the US by land; this way, applications for the status of refugee might be one way to obtain legal documents to travel in the country. In relation to applications from Haitians, it is considered they have a very similar pattern to that of Cubans.

Long waits, restrictions for mobility and deprivations of liberty

During the process substantiation, every individual who requests asylum in Mexico has to face long waits, and as the case may be, restrictions for mobility or deprivations of liberty. For the purpose of clarity, we differentiate between migratory stations’ applicants –who are under detention, either for only a part of the process– and office applicants – who are free over the substantiation of the procedure because they started the process directly in a COMAR (or else INM) office.

At least as of 2017, waiting times to have a resolution are longer or much longer than set forth in the law (^{Human Rights First, 2017}; ^{CEAR, 2018}). At present, requesting the status of refugee takes months or even longer than a year. With COMAR data obtained via a transparency request, ^{Asylum Access (2020, p. 10)} points out “that 13,089 people who asked for the status of refugee in 2018 were still waiting for a resolution on October 25^th, 2019, including 6.230 people waiting for more than a year and 662 who had been waiting for more than 18 months so far”. In the case of those who submit their request at an INM office, the process takes even longer than usual (^{Gutiérrez López, 2019}). Delays are attributed to the lack of resources of the institutions to address the increasing number of applications made.

For office applicants, the wait begins before starting the process, when the person in need of international protection approaches to COMAR offices. At that moment, they are appointed to fill in the application, which usually takes place several weeks later. On the basis of a survey carried out in Tapachula by CDHMC and ^{El COLEF (2020)} among applicants for the refugee status between November 2018 and January 2019, it is estimated that for 181 cases the average waiting time was 24 days per applicant. About a half of the applicants had to wait more than a month to “begin” their process. As in the US, Mexico has a metering system for the number of applications that can be started each day.¹⁰

Once the application is completed, the individual has to wait for more weeks before receiving the statement of acceptance and begin the process in INM to receive a VCHR, which can take several weeks to process. Thousands of office applicants are forced to desist or abandon the process due to long waiting times and difficulty to obtain resources from labor activities. Consequently, remaining in Mexico irregularly or continuing to travel to the north over increasingly dangerous and uncertain routes implies the risk of being deported to their countries of origin where their life and physical integrity are at risk. Most of these individuals have to look for remunerated activities to earn some resources with which to afford lodging and basic services, which leads them to precarious jobs in regions where they are processing their application.¹¹ The weekly signature in COMAR, or INM, is a grave problem for many applicants who lack economic resources to visit the offices. On the other hand, if applicants find an employment, even an informal one, they may lose it as they miss a day to attend the COMAR office.

This is the case of Armando, who arrived in Mexico with the first migrant caravan by the end of 2018, and accepted the possibility offered by the Mexican government to request the status of refugee. After 20 days in a detention center, he was released and given a Clave Única de Registro de Población, CURP [Single Population Registration Number] so that they were able to work and carry on with the process in COMAR under the office modality. This way, Armando tried to remain in Mexico, he stayed a little longer than a week in Tapachula before he dropped the process and retook the initial plan to go to the US. The reason is a mixture of impossibility to earn means for survival and live up in decent conditions and the burdensome process in COMAR:

I had to get a job in Chiapas, […] I had to sign and be in migration and COMAR, I lost my job, slept for long where the buses are, I slept there a lot, about three nights because I had no money to pay for the hotel (Armando, face-to-face communication, December 31 st, 2018).

The spatial immobilization implied by the refugee process in a certain state prevents the applicants from going to other Mexican states, where they may have better opportunities to find employment and better security. Although some obtain a permit from COMAR to attend another office, most of them are forced to look for employment in some of the most impoverished and insecure regions in the country such as Chiapas, Oaxaca and Tabasco.

One of the reasons why it is intended to restrict the applicants’ spatial mobility seems to be related to keeping aliens from going to the US, at least until the process finishes. Owing to Mexico’s geographic location, it is difficult to distinguish between asylum seekers who want to settle down in Mexico and those who resort to this instrument as a means to carry on traveling toward the United States (^{Rodríguez Chávez, 2011}). In the face of the arrival of two migrant caravans from Central America, in October 2018 (during the administration of Peña Nieto) and January 2020, Mexican authorities expressed the possibility that migrants may stay in Mexico as temporary workers and have promoted refugee status as an option to remain in that region.¹² Within a context of heavy pressures from the US on Mexico to control migration flows, the Mexican government responds trying to retain people in the south of the country with temporary employment programs and making the application at COMAR.

The applicants for the status of refugee who submit their request in a point of entry, or are retained by Mexican authorities before starting the process, have to wait for its substantiation in a migratory station, unless a CSO makes the necessary proceedings to ask for the legal and due transfer to any address and report it to the Mexican migration authorities. As of 2016, the growing number of applicants for the status of refugee can leave the migratory status via a pilot program for “detention alternatives” fostered by UNHCR in collaboration with CSO and shelters. In the context of this program, INM regularly sends the High Commissioner a list of the people who have asked for international protection at a migratory station and have already received their certificate. UNHCR identifies those in vulnerable situation (children, adolescents, pregnant women, LGBTQ+ community,¹³ et cetera), communicates with shelters nearby to find out the spaces available and accordingly reports to INM the name of the people who might receive an alternative to detention in equal number as the spaces available (^{CEAR, 2018}). This program has been successively extended, however the increase in asylum seekers has rendered these spaces insufficient (^{París Pombo, 2019}).

Even if the asylum seekers who are at a migratory station may have their basic needs covered, they have their liberty restricted during the substantiation of their processes and frequently face very precarious conditions (sanitary, abuses, and so on) which have led many people in need of international protection to desist and voluntarily accept their repatriation (^{Human Rights First, 2017}).

Withdrawal and abandonment

The applicants’ long waits in detention or in high-vulnerability situations (with no means for survival, lodging, no access to services, etc.) make many of them despair and promote withdrawal. In this sense, COMAR records show that year by year an important percentage of applicants desists via a document in which they express their desire to stop the process, or they drop out of it due to missing the weekly signatures.

Based on data from a transparency request that comprises 90 397 asylum seekers from January 1^st, 2018, to October 25^th, 2019, Asylum Access México (2020) states that 9 549 applications were dropped, which account for 10.6 percent of the total applications, while the average number of days between applying and dropping out was 149. For their part, 532 were withdrawn, which accounts for 0.5 percent of the total requests and with an average time between application and withdrawal of 54 days. The figures above, significant on their own, will be significantly higher, for 70.6 percent of the applicants is still waiting for a resolution.

Another possible explanation for withdrawals and abandonments is the fact that some of the applicants carry out this process with a view to obtaining the documents that enable them to traverse the Mexican territory regularly; thereby, if they receive a VCHR they will drop out of the process to carry on with their journey toward the US.¹⁴ Nevertheless, given the times to receive this sort of documents and its cumbersome processing, it is likely a last resort.

Deficits against the effectiveness of the due process

A key aspect regarding the due process is having legal assistance, though many asylum seekers have to navigate the complex asylum system on their own (^{Human Rights First, 2017}). In spite of the existence of more than a dozen CSO, considered UNHRC partners, that offer legal advice for applicants,¹⁵ the accelerated increase in requests makes it increasingly difficult to provide legal assistance for most of the applicants.

Various organizations have documented processes and resolutions that incorporated a number of violations to the due process such as failure to meet deadlines, interviews on the phone or with no qualified interpreters, dissuasion to use legal assistance by COMAR staff, short notices for appointments, resolutions with information from other cases, resolutions with no studies following the CP patterns, wrongly substantiated juridical resolutions, resolutions that discriminate women and minors, among others (^{Rea Granados, 2016}; ^{Sin Fronteras I. A. P., 2016}; ^{Universidad Iberoamericana Ciudad de México et al., 2017}).

Recognition of international protection

Early in 2020, only 37 076 out of 130 187 applications in COMAR between 2013 and 2019 had been solved (table 2); in Mexico, more than 20 000 individuals received the status of refugee and more than 5 000, CP. Most of the people with a positive resolution comes from Venezuela (8 779), followed by Honduras (6 198), and El Salvador (4 671); very far are Guatemala (539) and Nicaragua (266). As for CP, distinguishable are Honduras (2 457) and El Salvador (2 338). These two Central American countries also receive the majority of negative resolutions (5 113 and 3 195, respectively).

A large part of the explanation for such figures is in the application of different criteria for the various nationalities. As previously pointed out, Venezuelans were included in the broadest definition of 1984 Cartagena Declaration, which has meant that their applications are almost always given the refugee status (98.1%, graph 2). The rest of the countries are applied a more restrictive definition of the 1951 Geneva Convention, which explains the higher rate of negative resolutions. At the other end, the Cubans and Haitians who concluded the process –very few– have very high rates of rejection, in these two cases over 80 percent. As regards Central Americans, they are at an “intermediate” point; as noticed, the percentage of positive resolutions for this population oscillates between 32.9 percent for Nicaraguans and 44.7 for Hondurans. It is worth underscoring that CP becomes greatly relevant in the international protection given to Central American countries. In the case of Nicaraguans, CP was given more often than the refugee status.

Source: own elaboration based on data from ^{UPMRIP, COMAR and SEGOB (2019}, ²⁰²⁰⁾.

Graph 2. Percentage distribution of resolutions issued by COMAR by nationality and according to sort of resolution (total for 2013-2019) * Preliminary data, including all the resolutions issued within 2013-2019.  

This differentiated treatment according to national origin cannot be explained only in legal terms, but taking domestic and foreign policy reasons into account. This way, during Peña Nieto’s administration (2012-2018) the figure of refugee was privileged for Venezuelans, at once the Mexican government took part in censorship and sanctions against the government of such country. As regards people from the Caribbean, their transit across Mexico was facilitated by means of departure documents. Conversely, in the case of Central Americans, thus far the policy has been to force them to remain in the south for months or years by means of humanitarian devices, such as refugee camps in the 1980’s or the long processes in COMAR at present, or else with projects for temporary labor insertion in the states of southern Mexico.