In the year since Georgia passed a law to discourage illegal immigration, the number of asylum applications filed by Mexicans in Atlanta’s immigration court has increased four-fold.
A few applicants have personal experience of Mexico’s drug-fueled violence. Many others have not been touched by the bloodshed but are using it as grounds to argue that they should not be deported to Mexico – a novel legal strategy that seeks to alter existing law.
And in some cases, immigrants’ attorneys may be filing asylum claims purely as a last-ditch delaying tactic.
“We are allowed to ask for it, so I don’t care if the judge gets frustrated,” said Amna Shirazi, an immigration attorney based in Norcross. “If I can find a better way for my client to get their green card, I do. I only ask for asylum if there is absolutely nothing else I can ask for.”
In the fiscal year that began in October, 224 Mexican nationals have filed asylum applications in the Atlanta court. Only 59 such applications were filed in all of the previous year.
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But getting political asylum in Georgia is not an easy go, especially for Mexican immigrants. The six judges at the Atlanta Immigration Court have an average denial rate of around 80 percent, the highest in the nation, according the Transactional Records Access Clearinghouse at Syracuse University.
Nationally, 104 individuals from Mexico were granted asylum in 2011; none of those cases were in Georgia.
“Asylum cases are extremely difficult, and Georgia has one of the most conservative sets of judges that work with asylum,” said Dabney Evans, co-founder of the Atlanta Asylum Network at Emory University. “One of the challenges is related to the way people make claims.”
Most of the Georgia applications thus far in 2012 are so-called “defensive” claims – filed by people caught in Georgia illegally, who are trying to avoid deportation. By contrast, immigrants who approach officials as they enter the country and ask for asylum are said to have “affirmative” claims.
Those granted asylum in the past have generally been journalists, human rights activists and other individuals who fled Mexico after receiving death threads or being attacked.
That doesn’t describe Ivan Penaloza, a 19-year-old student at Central High School in Carrollton, who is more typical of Shirazi’s clients. Last December, he was arrested for several misdemeanors after he and a classmate got into an argument with a police officer.
When authorities discovered that he was illegal, he was sent to the Stewart County Detention Center in Lumpkin, where he will remain until his case is decided.
Shirazi is trying to help him stay in the U.S. through political asylum, since he is not eligible for a work permit.
The law makes asylum available to a person who can show that he or she has a credible fear of being persecuted for one of five specific reasons: race, religion, nationality, political affiliation or membership in a particular social group.
Shirazi concedes that Penaloza is not eligible for asylum under those criteria. But she believes her client is part of a new risk group that should be protected: immigrants who are so Americanized that they would have trouble surviving in their countries of origin.
“We [attorneys] are trying to create this new class of protected people,” she said. “The more Americanized they are, the more tied they are to the United States. We have to litigate this class into existence, because it doesn’t exist.”
Phil Kent, a member of Georgia’s Immigration Enforcement Review Board and the national spokesman for Americans for Immigration Control, said immigrants should start a visa application prior to entering the country and not as a tactic to avoid removal from the U.S.
“Illegal immigrants in our country need to begin a process through their home country to apply for a visa legally. Not to do so, and to tolerate them here illegally or to amnesty them, is a slap in the face to those who play by the rules,” Kent said.
Monica Khant, program director of the Georgia Asylum & Immigration Network, thinks many immigrants desperate to avoid deportation are requesting asylum at their lawyers’ urging without a clear knowledge of the law.
“[They] are being pushed to ask for asylum,” Khant said.
In any case, the recent surge of claims by Americanized immigrants who understand the legal system threatens to undermine public faith in the asylum process, said Steven Camarota, director of research at the Center for Immigration Studies.
“If you want to preserve the integrity of your laws while being humanitarian, it will become very difficult,” he said. “An increase like this can show how difficult it is to stop them from abusing the system.”
Dana Leigh Marks, president of the National Association of Immigration Judges, said there are times when attorneys practice frivolous litigation, filing cases knowing they have no legal merit.
But the judge, who presides over an immigration court in San Francisco, said lawyers are also charged with vigorously representing their clients’ interests.
“Attorneys are required to be legal and be creative in their cases within the bounds of good faith,” Marks said.
Penaloza’s mother, Ana, who brought him to the United States, never heard of political asylum. But she said she’s alarmed by the stories that have reached her from her hometown in a drug-plagued state in southern Mexico.
The stories – of drug cartels in control and frequent murders – make her believe there is a real possibility that her son would be killed in Mexico.
“What’s the first thing they do with everyone coming from the U.S.? They kill them,” she said. “Mrs. Shirazi told me this is the only option, and I don’t want my son to die in Mexico.”
Carolina Antonini, an immigration attorney in metro Atlanta, said judges tend to be skeptical of asylum claims. But she said that, given the ruthlessness of the Mexican cartels, many immigrants’ fears are real, so their cases are not necessarily frivolous.
“You can’t easily say that a case is not eligible,” she said. “You [the applicant] have to feel the fear, and your fear needs to be reasonable. Most of these people have a subjective fear because all the things they have heard about Mexico.”