On March 2011, still mourning the brutal killing of his son in Juárez, businessman José A. Holguín Guardado, 51, jumped the U.S.-Mexico border fence with only one thought: saving his own life.
A few minutes later, the sorrowful, fearful man found himself handcuffed inside a U.S. Border Patrol vehicle that took him directly to the Otero County Processing Center in Chapparal, N.M., so that he could be sent back to the country he was fleeing.
"When I was sitting in the floor (waiting for the deportation hearing) handcuffed and shackled, I imagined myself in the scenario I was running from: being held in Juárez, blindfolded, mouth tied with duct tape, kidnapped by either federal police or criminals, assassinated, my body thrown away It was then, that I decided to ask for asylum," he said.
Because he entered the country illegally and had a previous deportation on his record, Holguín -- who runs a family public transportation business in Juárez -- is not eligible to apply for asylum. Instead, he applied for withholding of removal, a status that, if granted, would allow him to remain in the U.S. and work without the right to apply for legal permanent residency.
According to Carlos Spector -- an El Paso immigration lawyer who represents around 150 people that fled Juárez fearing for their lives -- between 35 and 40 percent of those current cases fall in that status. Withholding of removal is a category similar to asylum, but not as
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secure. It is also harder to get because the applicant has to demonstrate that he or she is likely to face persecution if returned to his country.
"We have a lot of people in that situation," Spector said. "They were (previously) deported or people that didn't apply for asylum in the first year they were here."
With the possibility of immigration reform looming, many of those seeking asylum or withholding of removal status face the risk of losing the benefits of regularizing their status. The S.744 immigration bill contemplates some provisions regarding asylum, but in essence doesn't modify the criteria to grant asylum or withholding of removal.
"We are asking (legislators) to include all these people in the legalization process. If they qualify -- because they entered the country before 2011 -- the asylum petition could be dropped off and it would be beneficial for the government and for the immigrants, too," Spector said. "In the next couple of weeks we will present a formal petition to Congressman Beto O'Rourke."
The petition is under the pretense that the cases of people that enter the country asking for asylum or withholding of removal would be closed and then included in the immigration reform, said Spector.
"This wouldn't be a petition just for the cases of Mexican people. But it would have a big impact, because right now, Mexicans are the second (largest) group of people asking for asylum after the Chinese people," said Spector.
The petition will be supported by the national organization Mexicanos en el Exilio, which represents more than 200 people seeking asylum.
But other immigration lawyers, such as Kathleen Campbell Walker, former president of the American Immigration Lawyers Association and chair of the Border Relations Committee for the city of El Paso, disagrees with the idea. She said that putting some of the asylum cases into the same basket as other undocumented immigrants would send an inappropriate message.
"We are trying to provide humanitarian relief. Our asylum process is not perfect and there is a lot of uncertainty, but I have a problem with switching the cases. It would hurt the asylum process.
"The whole idea of asylum-seekers is to ask the U.S. government to provide an humanitarian answer to this situation. Unfortunately many of them shouldn't have claimed asylum," she said.
In order to be granted asylum, the applicant still has to demonstrate fears of persecution, to prove that they would be persecuted either for race, religion, nationality, political opinion or social group and to establish that the government is involved in the persecution or is unable to protect them. In the case of withholding of removal, the applicant must demonstrate that it is likely they will face persecution if returned to his country. Being vulnerable to extortion or kidnapping are not considered part of the criteria and make it difficult for many of the applicants to be granted asylum.
Campbell said a broader scope in the criteria to grant asylum is needed and that many attorneys are pushing for it. However, she added, "we have pushed the asylum envelope so hard that there has been a negative response in trying to make asylum categories that we never intended to cover."
Like a large majority of recent Mexican asylum-seekers, Holguín had been a victim of extortion since 2008, when the brutal war between drug cartels emerged in Juárez. His family business operated several public transportation routes and was asked to pay 5,000 pesos weekly ($431) as a quota or "derecho de piso." Other people in the same business were also asked to pay the quota.
As a prominent member of a public transportation union, Holguín joined an effort to oppose extortion and to organize a protest against criminals. However, in August 2008, one of his buses was burned and in May 2009, his son, Alberto Alonso Holguín, 23, was shot and killed while in a restaurant and bar in Juárez. More than 17 casings were found at the scene. A few days later, Holguín said, somebody called him saying "you already know what happens if you continue (expletive) around."
Holguín moved to El Paso with 19 members of his family. Currently nine of them are seeking asylum or withholding of removal.
Spector said Holguín's case is significant because his story is typical of many of those who have fled Mexico because they were threatened with death or suffered persecution because they refused extortion attempts. However, the 1952 UN Refugee Convention related to the Status of Regufees, which was ratified in 1967, reflects a different reality, one in which people were fleeing from totalitarian states.
"The law doesn't correspond to the current political situation, where people are fleeing from failure regions of a failed state and the government is unable to defend them," said Spector. "The big majority of people fleeing from Mexico are victims of the state, of extortions and kidnapping."
Spector hopes in the future the asylum law could be modified to adapt to the new realities of countries affected by drug violence and organized crime.
"We are using the law of 1952 to deal with a reality of 2013," Spector said.
Holguin's next hearing will be set by 2015. He knows the difficulties ahead.
"I like to visualize the future of my family with hope. I want them to live without fear of being threat or persecuted," he said. "With too much pain and sadness we have decided that we can't live in Mexico anymore. They (the criminals) destroyed us there and I'm trying to put my life together again."
Lourdes Cárdenas may be reached at lcardenas@elpasotimes.com; 546-6249.