Fleeing Domestic Violence from a "Safe" Country?: Refugee Determination for Mexican Asylum-Seekers in Canada.

Author:Bhuyan, Rupaleem
 
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Abstract

This article presents a mixed-methods study of domestic-violence-related claims for Mexican asylum-seekers in Canada. Although refugee claims that indicate domestic violence are slightly more likely to be approved, the majority of Mexicans seeking protection from domestic violence are denied because they are unable to demonstrate the lack of state protection. Our findings illustrate that Immigration and Refugee Board members' assessment of a claimant's credibility, internal flight alternatives, and the availability of state protection pivot on their perception of Mexico as a "democratic" or "safe" nation. We discuss how cursory attention to the social context of gendered violence in Mexico leaves Mexicans with few legal options for humanitarian migration.

Resume

Cet article presente une etude a methodologie mixte des demandes d'asile au Canada reliees a la violence conjugale de la part des Mexicains. Bien que les demandes faisant mention de violence conjugale ont plus de chances d'etre accordees, la plupart des Mexicains reclamant une protection de la violence conjugale sont juges non-admissibles en raison de leur incapacite de demontrer un manque de protection de la part de l'etat. Nos recherches demontrent que l'evaluation de la part des membres de la Commission de l'immigration et du statut de refugie concernant la credibilite des demandeurs, la possibilite de refuge interieur et la disponibilite de protection de la part de l'etat depend de leur perception du Mexique en tant que pays > ou >. Nous abordons une discussion sur l'attention insuffisante portee au contexte social de la violence sexospecifique au Mexique qui laisse peu d'options legales aux Mexicains en ce qui concerne la migration pour raisons humanitaires.

Introduction

This article examines how domestic violence configures into refugee determination for Mexican asylum-seekers in Canada prior to Mexico's official designation as a "safe country of origin." Domestic violence falls under the Immigration and Refugee Board of Canada's (IRB) guidelines for "Women refugee claimants fearing gender-related persecution" (herein referred to as the "Gender Guidelines"). Since the Gender Guidelines were first introduced in 1993, there has been a positive trend towards recognizing gender-related persecution in Canada's refugee process. (1) However, legal scholars note limitations within the United Nations framework for determining refugee status for people fleeing gender-related persecution. (2)

Foremost, Arbel and colleagues (3) caution that many women are never seen in the Canadian refugee determination process, because they cannot leave their home country or do not have the means to apply. Increased border controls across North America construct forced migrants as "illegal," further exposing migrant women to structural and interpersonal violence. (4) This is particularly true for Central Americans, who are subject to detention and removal by both the Mexican and U.S. governments. (5)

In this article, we present a case study of refugee claims submitted by Mexican nationals that indicate domestic violence as one reason for seeking protection in Canada. To set the groundwork for our study, we review trends in humanitarian migration from Mexico to Canada. We then discuss the concept of "safe" country in Canadian refugee determination. To contextualize the IRB's assessment of Mexican refugee claims, we reviewed academic and grey literature on violence against women in Mexico, where domestic violence, rape, and femicide are systematically ignored or dismissed. (6) After discussing our research methods, we present an empirical analysis of IRB's assessment rates for Mexican refugee claimants, and key themes that emerged from our analysis of negative decisions written by the IRB members. (7) Our findings illustrate that the availability of state protection from domestic violence pivots on the construction of Mexico as a "safe" nation, despite evidence of escalating violent crimes and impunity across Mexico.

Legal Context of Violence against Women in Mexico

Estados Unidos Mexicanos (United Mexican States) is a democratic republic made up of thirty-one states and a federal district, Mexico City, the nation's capital and the largest city in the western hemisphere with 21.2 million residents. Escalating levels of violence across Mexico have had a direct impact on women's safety. (8) The majority of adult women are victims of some kind of violence from the hands of their spouse, partner, or former partner. (9) Mexico is ranked sixteenth in the world for female homicides. (10) These findings, alongside international pressure, encouraged Mexican elected officials to develop legislation in line with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In 2007, the General Law on Women's Access to a Life Free of Violence (herein referred to as the General Law) became Mexico's primary legal framework for addressing violence against women.

The General Law directs federal, state, and municipal governments to respond to, prevent, punish, and eradicate violence against women. (11) Implementation of the General Law thus varies widely relative to regional and local political interests, and coordination among states and municipal governments. (12)

Context of Humanitarian Migration from Mexico to Canada

Although humanitarian migration from Mexico to Canada is a relatively new phenomenon, in the past two decades Canada recognized the largest number of Mexican asylum-seekers in the world. According to the UNHCR, (13) 172,926 Mexicans applied for asylum between 2000 and 2014. The majority of Mexican asylum-seekers (73%) submit their claims in the United States. Canada, however, approves the largest share of Mexican refugee claims. Between 2000 and 2014, Canada recognized 7,777 Mexican refugees (70% of the worldwide total) while the United States recognized only 3,287 (29.6%). During this same period, only 46 Mexicans were recognized as refugees by other countries (see tables 1 and 2).

There are notable differences between asylum claim processes in the United States and Canada. People who submit a claim within Canada are referred to as "refugee claimants" and have access to basic health care and social assistance, and are authorized to work while they await a decision. In 2014, Canada processed 13,500 new claims and approved 9,869 refugee claimants from previous years at an approval rate of 49%. (14) Canada also offers permanent residence on humanitarian and compassionate grounds to a small number of people who can demonstrate that removal from Canada would represent a violation of their rights.

In the United States, refugees may submit an asylum claim within one year of their last entry either proactively (i.e., before being detained by immigration authorities) or defensively (i.e., submitted after being placed in removal proceedings in Immigration Court). The United States has high evidentiary requirements but little support for asylum-seekers to navigate the complex legal system (e.g., asylum-seekers are not eligible to work until their claim has been approved). U.S. rates of approving Mexican asylum claims dropped from 23% to 9% between 2008 and 2013. (15) The United States also offers Temporary Protected Status (TPS) to some refugees from Central America (e.g., Honduras, Nicaragua), which allows them to work and reside legally in the United States for a short period. Mexican nationals are not eligible for TPS at this time.

In 2009, Canada introduced a visa requirement for Mexico to block the entry of asylum-seekers whom the Canadian minister of citizenship and immigration denounced as "bogus refugees." (16) Mexico was later added to a list of Designated Countries of Origin in 2012, as another policy instrument to deter humanitarian migration from "safe countries." The Conservative Canadian government's revision of refugee law in 2012 restricted access to public benefits, institutionalized forced detention for refugees whose entry into Canada was deemed "irregular" (i.e., they were trafficked), and reduced access to health care (although health care was restored in April 2016). (17) The efficiency principles of this reform were aimed specifically at refugee claimants who originate in a "safe country of origin" who now have a shorter period to submit their refugee application and have fewer rights for appeal. Refugee claimants fleeing domestic violence, who often need more time to collect supporting documents, are particularly disadvantaged by restrictions on their procedural rights.

Designating "Safe" Countries in Canadian Refugee Law

A "safe third country" provision was first introduced into Canadian law in 1987, when Bill C-55 was tabled during an emergency session of Parliament to address the arrival of two "boatloads" (18) of South Asian refugees on the Atlantic coast. Bill C-55 created the Immigration and Refugee Board (IRB) as a measure to streamline refugee determination. This bill also introduced a "safe third country" provision to allow Canada to return claimants who had sojourned in another country. The practice of deflecting responsibility for asylum-seekers had been established in Western Europe through the Dublin Regulation, signed in 1990 by twelve countries in Western Europe. Bill C-55 went into effect in 1989. The "safe third country" measure, however, was not enforced because there were complicated logistics of returning refugee claimants to a previous country of sojourn. (19)

The concept of a "safe country" reappeared in the Canada-U.S. Safe Third Country Agreement (STCA) after the events of 11 September 2001. (20) The STCA allows Canada to turn away asylum-seekers at the U.S.-Canadian border (i.e., land border crossings, airports, and train stations), under the presumption that they can submit a refugee claim in the United States, unless they qualify for an exception to the Agreement (e.g., people who...

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