Updated on May 10, 2023 to reflect the start of the implementation of the Circumvention of Lawful Pathways Rule.
On May 11, 2023, the Biden administration started implementing a rule that creates a presumption of asylum ineligibility that would severely restrict U.S. asylum eligibility for most migrants crossing the U.S.’s southwest border. Among its provisions, the proposed rule creates a presumption of asylum ineligibility — with limited exceptions — for migrants who travel through a third country unless they apply for and are denied asylum before reaching the United States. Considering that most asylum seekers travel through Mexico to reach the United States, this paper explores Mexico’s asylum system to determine whether it is an efficient, functional, and viable alternative for migrants to apply for asylum.
Mexico is a country whose asylum legal framework, in theory, is among the world’s most inclusive and protective of asylum seekers. In recent years, Mexico has made significant legislative improvements to adapt to the new hemispheric migration patterns.[2] In addition, around 70% of asylum applications in Mexico are resolved favorably, granting refugee status to most applicants.[3] However, despite the good intentions of Mexican legislators and the high approval rate of asylum applications, the administrative authorities in charge of reviewing asylum applications are underfunded and face a growing number of asylum applications.
In addition, Mexico’s economic and demographic circumstances are not ideally positioned to absorb large numbers of refugees. Finally, Mexico itself has systemic problems with gang and gender-based violence, undermining it as a destination country for asylum seekers fleeing gang and gender-based violence.
Mexico’s Asylum System
Asylum seekers looking for protection in Mexico have, in theory, a simple three-step path to being recognized as refugees:
- Travel to Mexico;
- Apply for asylum before the Mexican Commission for Refugee Help (COMAR); and
- Wait 45 business days for COMAR to resolve their case.
Step 1: Travel to Mexico
Except for political figures[4] and family members of refugees — who can apply for asylum abroad[5] — asylum seekers must travel to Mexico to apply for asylum.[6] Once in Mexico, migrants are eligible for asylum regardless of how they enter the country:
- By commercial flight;
- By land or sea at ports of entry; or
- Between ports of entry.
Traveling commercially to Mexico can be fairly easy for nationals of some countries and very difficult for citizens of others.[7] Mexico does not require visas for citizens or permanent residents of the United States, Canada, Japan, the United Kingdom, the European Union, and the Schengen Area. In addition, nationals from any country member of the Pacific Alliance — namely Colombia, Chile, and Peru[8] — as well as Argentina, Australia, Bahamas, Belize, Bolivia, Costa Rica, Hong Kong, Iceland, Israel, Jamaica, Monaco, New Zealand, Panamá, Paraguay, and Uruguay can enter Mexico without a visa.[9] Moreover, individuals with valid visas from the United States, regardless of their nationality, do not require Mexican visas.[10]
Those who do not meet the criteria listed above must obtain a Mexican visa before traveling to Mexico through a commercial flight or cruise. In order to get a Mexican visa, foreign nationals must demonstrate their economic solvency by showing a bank account statement with an average balance of around $3,200 USD over the last three months. [11] They must also show proof of employment, with approximately $1,000 USD monthly earnings for the previous three months.[12]
If migrants are denied Mexican visas, they can travel by land or sea to Mexico — either through ports of entry or between them — and apply for asylum.
Step 2: Apply for asylum before the Mexican Commission for Refugee Help (COMAR)
Once in Mexico, all migrants can apply for asylum at no cost within 30 days[13] of their arrival at any of the ten locations[14] of the Mexican Commission for Refugee Help (COMAR).[15] To apply for asylum in Mexico, applicants must demonstrate a reasonable fear of being persecuted, imprisoned, or tortured due to their race, religion, nationality, gender, membership of a particular social group, or political opinion.[16] In addition, asylum seekers are eligible for refuge in Mexico if they demonstrate that their liberty or life could be placed in danger by armed conflicts, systemic violence, or substantial human rights violations in their countries of origin.[17] The latter criterion makes Mexico’s definition of refugee one of the most inclusive in the world and in line with the Cartagena Declaration on Refugees.[18]
Step 3: Wait for COMAR’s resolution
Once migrants apply for asylum, COMAR provides applicants with a certificate that demonstrates that their asylum process is ongoing.[19] COMAR will also assign a Refugee Unique Code (CUR) that will allow applicants to access all public services, including healthcare and education.[20] With the certificate and the CUR, asylum seekers can obtain a Visitor Card for Humanitarian Reasons (TVRH), which allows them to work while the application is processed. [21] As a general rule, COMAR must complete the asylum process and notify the applicant within 45 business days from the date the process started.[22] However, due to backlogs related to the Covid-19 pandemic and an increasing number of asylum applications, some COMAR resolutions are taking up to 100 days.[23]
If COMAR denies asylum, applicants have 15 business days to appeal the decision.[24] If, after the appeal, COMAR denies asylum again, the agency must consider whether the applicant is eligible for complementary protection.[25] Complementary protection – equivalent to “withholding from removal”[26] in the United States – provides relief from deportation to asylum seekers who have failed in their claim for refugee status but whose lives would be in danger if sent back to their countries of origin.[27] The status of complementary protection grants access to all public services in the country.
Rights of Refugees in Mexico
If COMAR grants asylum, the applicant immediately becomes a refugee.[28] Refugees in Mexico[29] have the right to apply for refugee status for their family members abroad.[30] Even after Mexico recognizes the refugee status of an individual, they have the right to apply for asylum in another country. In that case, Mexico suspends their refugee status while the process in a third country is under consideration. However, that refugee status can resume when they return to Mexico.[31]
Access to public benefits and right to travel
Refugees in Mexico have the right to access all public benefits, including free healthcare and education.[32] They also have the right to settle anywhere in the country as long as they notify COMAR of any change of residence.[33]
Specific protections for migrant children
Notably, the Mexican asylum framework has specific provisions that protect migrant children, regardless of whether they are unaccompanied or traveling with a legal guardian.[34] All children who arrive in the country as migrants, and their legal guardians, are automatically granted humanitarian parole.[35] Once they are granted humanitarian parole, they can apply for asylum. Mexican law forbids the separation of migrant families when children are involved.[36] Moreover, the law forbids the detention of migrant children for reasons related to their migration status.[37]
Obstacles to the Asylum Process in Mexico
While the asylum system in Mexico seems easy to navigate on paper, there are multiple obstacles hindering the asylum process in the country:
- There are only 10 locations of COMAR across the country: Asylum seekers can only apply for asylum before COMAR authorities. However, there are only 10 locations across the country, and most have been overwhelmed by the growing number of petitions in recent years.[38]
- As a general rule, asylum seekers must remain in the state where they filed their asylum application: Asylum seekers must present themselves every week at the COMAR location where they filed their application. The asylum process automatically ends if the applicant fails to appear before COMAR for two consecutive weeks.[39] Among the many problems derived from the lack of sufficient locations is that many of COMAR’s offices are situated in some of the country’s poorest states where labor opportunities are scarce. For instance, the busiest COMAR location is the one in Tapachula, Chiapas — Mexico’s poorest state, where 76% of the population lives in precarious conditions below the poverty line.[40]
- COMAR is overwhelmed with the growing number of applications it receives: Between 2014 and 2019, Mexico registered a 5,325% increase in the number of asylum applications — from 1,296 in 2014 to 70,314 in 2019. Asylum applications decreased in 2020 due to the Covid-19 pandemic, falling to 40,914. However, the number skyrocketed in 2021 to 129,791 applications, dipping slightly to 118,478 in 2022.[41] According to recent estimates, COMAR has been expecting a similar number of asylum applications in 2023. However, it is expected that the Biden administration’s proposed rule will significantly increase the number of asylum applications filed in Mexico. Because applicants would be required to show an asylum denial in third countries they have transited through, thousands of migrants will presumably file for asylum in Mexico just to receive an initial denial permitting them to head north to the U.S.
- COMAR is an underfunded agency with a massive backlog: Due to the increasing number of asylum applications, COMAR’s annual budget has increased from $1.1 million USD in 2017[42] to $10.3 million USD in 2023.[43] However, that budget remains insufficient to provide adequate asylum services and handle the massive increase in the number of people applying for asylum.[44]
- Mexico’s economic and demographic circumstances are not well-situated to absorb large numbers of refugees: Mexico has the 15th-largest economy in the world, with a GDP of $1.2 trillion USD.[45] Compared to the United States’ $23.3 trillion USD economy, Mexico’s capacity to absorb refugees is limited. In addition, unlike America’s aging population, Mexico’s younger population generates excess workers[46] leading a considerable portion of its population to seek labor opportunities abroad.[47] These realities pose challenges to Mexico as it now attempts to absorb thousands of asylum seekers into its workforce.
- Mexico has a systemic problem of gang and gender-based violence: Gender-based violence in Mexico is systemic. Over 70% of women in Mexico have experienced gender-based violence, [48] with an average of 6 women disappearing every day in the country.[49] Moreover, gang violence in Mexico took the lives of over 26,000 people in 2022 in Mexico.[50] Asylum seekers in Mexico have increasingly been victimized by gang violence and are regularly targeted by cartels and other transnational criminal organizations who take advantage of their vulnerability, with scores of those seeking protection being extorted, robbed, assaulted, and even killed.[51] The threat of violence makes Mexico an unsuitable option for many, particularly the thousands of asylum seekers fleeing violence in their countries of origin.
Conclusion
In recent years, Mexico’s asylum system has made significant legislative improvements to adapt to the new hemispheric migration patterns. The country’s definition of ‘refugee’ is among the world’s most inclusive, and its asylum agency – COMAR – has made real progress in recent years. As a consequence, the approval rate of asylum applications has improved considerably. However, problems remain – Mexico’s asylum system is overwhelmed and underfunded.
Despite some recent strides, Mexico’s asylum system is struggling to keep up with the massive uptick in hemispheric migration over the past half-decade, and Mexican economic and demographic numbers pose challenges to absorbing large numbers of asylum seekers. Persistent struggles with domestic violence and gang violence also pose a challenge in serving as refuge for those fleeing similar violence in their countries of origin.
Across the U.S.-Mexico border, the Biden administration’s new rule that will force many U.S. asylum seekers to first apply for asylum in Mexico will only further strain the Mexican asylum system. The expected new surge of applications would likely overwhelm a system that is already struggling to operate under less-than-optimal conditions. While Mexico’s asylum system has demonstrated progress and may eventually serve as an important hemispheric receiving country for those fleeing danger, it currently is not ready for the likely influx of asylum seekers it faces in the coming months and years.
Sources:
[1] Homeland Security Department and the Executive Office for Immigration Review; Notice of Proposed Rulemaking: Circumvention of Lawful Pathways; Federal Register. February 23, 2023. Available at https://www.federalregister.gov/documents/2023/02/23/2023-03718/circumvention-of-lawful-pathways
[2] See transitory articles of Ley de Migracion. Available at https://www.diputados.gob.mx/LeyesBiblio/pdf/LMigra.pdf
[3] Comisión Mexicana de Ayuda a Refugiados (COMAR); La COMAR en numeros: Estadistica enero 2023. February 16, 2023. Available at https://www.gob.mx/comar/articulos/la-comar-en-numeros-327441?idiom=es
[4] Political asylees are public figures who have a reasonable fear of persecution due to their opinions expressed in their role. See Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 2-I.
[5] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 61.
[6] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 11.
[7] Viajeros en Ruta; Paises que necesitan visa para Mexico; https://www.viajerosenruta.com/paises-necesitan-visa-mexicana/; Last Updated January 4, 2023.
[8] Alianza del Pacifico; Available at https://alianzapacifico.net/
[9] Consulado General de Mexico en Atlanta; Personas exentas de presentacion de visa para viajar a Mexico; Available at https://consulmex.sre.gob.mx/atlanta/index.php/visafee/247-personas-exentas-de-presentacion-de-visa-para-viajar-a-mexico#:~:text=Nacionales%20de%3A%20Argentina%2C%20Australia%2C,Uni%C3%B3n%20Europea%2C%20Uruguay%20y%20Venezuela.
[10] Secretaria de Relaciones Exteriores de Mexico; Visas; Available at https://consulmex.sre.gob.mx/boston/index.php/component/content/article/8-documentos-de-identidad/62-visas-ingles?Itemid=122; Last Updated March 1, 2023.
[11] Economic Commission for Latin America and the Caribbean (CEPAL); Requisitos para ingresar a Mexico; Available at https://conferenciaelac.cepal.org/5/sites/default/files/pages/files/REQUISITOS%20PARA%20INGRESAR%20A%20MEXICO.pdf
[12] Economic Commission for Latin America and the Caribbean (CEPAL); Requisitos para ingresar a Mexico; Available at https://conferenciaelac.cepal.org/5/sites/default/files/pages/files/REQUISITOS%20PARA%20INGRESAR%20A%20MEXICO.pdf
[13] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 18.
[14] COMAR has ten locations in the country: Mexico City, Acayucan in the state of Veracruz, Tenosique in the state of Tabasco, Tapachula and Palenque in the state of Chiapas, Guadalajara in the state of Jalisco, Saltillo in the state of Coahuila, Monterrey in the state of Nuevo León, Tijuana in the state of Baja California and Ciudad Juárez in the State of Chihuahua. See UNHCR, Contact COMAR. Available at https://help.unhcr.org/mexico/en/where-to-seek-help/contacta-a-la-comar/
[15] Comision Mexicana de Ayuda a Refugiados; Available at https://www.gob.mx/comar
[16] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 13, I-II
[17] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 13, III
[18] Cartagena Declaration on Refugees, 1984; UNHCR. Available at https://www.unhcr.org/en-us/about-us/background/45dc19084/cartagena-declaration-refugees-adopted-colloquium-international-protection.html
[19] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 22.
[20] UNHCR; How to Apply for Refugee Status in Mexico; Available at https://help.unhcr.org/mexico/en/como-solicitar-la-condicion-de-refugiado-en-mexico/
[21] Instituto Nacional de Migracion; Cambio a visitante por razones humanitarias; Available at https://www.gob.mx/tramites/ficha/cambio-a-visitante-por-razones-humanitarias/INM827
[22] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 24.
[23] UNHCR; How to Apply for Refugee Status in Mexico; Available at https://help.unhcr.org/mexico/en/como-solicitar-la-condicion-de-refugiado-en-mexico/
[24] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 25.
[25] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 29.
[26] American Immigration Council; The Difference Between Asylum and Withholding of Removal; October 6, 2020. Available at https://www.americanimmigrationcouncil.org/research/asylum-withholding-of-removal#:~:text=Individuals%20who%20have%20been%20banned,United%20States%20and%20work%20legally.
[27] Ruma Mandal; Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”); UNHCR; June 2005; Available at https://www.unhcr.org/435df0aa2.pdf
[28] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 26.
[29] Asylum seekers, refugees, and political asylees are three different concepts under Mexican law. An asylum seeker is a person who has left their country and is seeking protection from persecution and serious human rights violations in another country, but who hasn’t yet been legally recognized as a refugee and is waiting to receive a decision on their asylum claim. A refugee is a person whose asylum claim was resolved favorably. Political asylees are public figures who have a reasonable fear of persecution due to their opinions expressed in their role.
[30] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 58.
[31] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 35 BIS.
[32] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 44.
[33] Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 49.
[34] Ley de Migracion; Art. 11
[35] Ley de Migracion; Art. 52-V-b
[36] Ley de Migracion; Art. 99
[37] Ley de Migracion; Art. 6
[38] UNHCR; How to Apply for Refugee Status in Mexico; Available at https://help.unhcr.org/mexico/en/como-solicitar-la-condicion-de-refugiado-en-mexico/
[39] Reglamento de la Ley sobre Refugiados, Proteccion Complementaria y Asilo Politico. Art. 24.
[40] Consejo Nacional de Evaluacion de la Politica de Desarrollo Social (CONEVAL); Informe de evaluacion y pobreza Chiapas 2020; Available at https://www.coneval.org.mx/coordinacion/entidades/Documents/Informes_de_pobreza_y_evaluacion_2020_Documentos/Informe_Chiapas_2020.pdf
[41] Diego Badillo; Éxodo a Estados Unidos, sin precedentes, convierte a México en sala de espera de migrantes; El Economista; January 15, 2023. Available at https://www.eleconomista.com.mx/politica/Exodo-a-Estados-Unidos-sin-precedentes-convierte-a-Mexico-en-sala-de-espera-de-migrantes-20230113-0069.html
[42] Dan Kosten; Mexico’s Asylum System is Inadequate; National Immigration Forum; October 29, 2019. Available at https://immigrationforum.org/article/mexicos-asylum-system-is-inadequate/
[43] Alejandro Gomez; Presupuesto para Comar este 2023 superará los 196 millones de pesos; Diario del Sur; January 8, 2023. Available at https://www.diariodelsur.com.mx/local/presupuesto-para-comar-este-2023-superara-los-196-millones-de-pesos-9434246.html
[44] Jorge Butron, Comar admite crisis; “nos ven como agencia de viajes”, La Razon, January 10, 2023. Available at https://www.razon.com.mx/mexico/comar-admite-crisis-ven-agencia-viajes-513107
[45] Georank; Mexico vs the United States: Economic Indicators Comparison. Available at https://georank.org/economy/mexico/united-states
[46] United Nations Population Fund (UNFPA); Mexico: Population Pyramid; Available at https://www.unfpa.org/data/demographic-dividend/MX
[47] Emma Israel and Jeanne Batalova; Mexican Immigrants in the United States; Migration Policy Institute; November 5, 2020. Available at https://www.migrationpolicy.org/article/mexican-immigrants-united-states-2019
[48] INEGI; Violencia contra las mujeres en Mexico. April 29, 2022. Available at https://www.inegi.org.mx/tablerosestadisticos/vcmm/
[49] Secretaría de Seguridad y Protección Ciudadana; En México desaparecen 6 mujeres por cada día del año; El Economista; April 21, 2022. Available at https://www.eleconomista.com.mx/politica/En-Mexico-desaparecen-6-mujeres-por-dia-del-ano-SSPC-20220420-0166.html
[50] Oscar Lopez; As Mexico’s epidemic of violence rages on, authorities seem powerless to stop it; The Guardian; December 8, 2022. Available at https://www.theguardian.com/world/2022/dec/08/as-mexicos-epidemic-of-violence-rages-on-authorities-seem-powerless-to-stop-it
[51] Miriam Jordan; Smuggling Migrants at the Border Now a Billion-Dollar Business; New York Times; July 25, 2022. Available at https://www.nytimes.com/2022/07/25/us/migrant-smuggling-evolution.html
Author: Arturo Castellanos-Canales