The first of Juan Escobedo’s many trials began in 2007 when his common-law wife, Lisbeth, then just 31, was diagnosed with cancer. The couple had four children and little money. At the time, Escobedo (not his real name) drove a bus he rented by the day around the city of Oaxaca and Lisbeth worked as a cleaner at the Mexican Social Security Institute. As a state employee, she qualified for free radiation and chemotherapy treatment at a public hospital, but doctors there held out little hope. It quickly became clear Lisbeth did not have long to live.
Escobedo’s second trial began in July 2008, when a gang of masked, gun-toting men burst into his house in the middle of the night. They blindfolded and tied him up along with Lisbeth and bundled them both into a van. They drove them to the Huayapam reservoir, where Escobedo was held underwater until he almost drowned, then beaten while Lisbeth was forced to look on. Their assailants identified themselves as members of “Los Zetas,” and said they wanted the couple to work for them. “They said, ‘We want a place from which to make sales and you are going to work for us, you understand?’” Escobedo recalls. “My wife was sick, and even so they made her sell drugs from our house.”
In a region known for corruption, electoral fraud and strong-arm politics, the Escobedos were just the kind of people the Zetas knew they could control and extort—average citizens without resources or connections. “They forced me to sell drugs, but others, they were forced to keep an eye on us,” he explains. “So anyone who said anything or made an accusation, for sure they would kill them.” The Zetas made copies of the couple’s identification cards, but that wasn’t the only factor that trapped them. What really stopped the couple from trying to escape, says Escobedo, was the fact that outside Oaxaca, Lisbeth’s cancer treatments would no longer be paid for by the state, and there was no way Juan could afford to pay for them himself.
He describes this period as “very painful. Like something you might see in a movie, but I was living it. I couldn’t do anything, and this put me into a kind of shock. I wanted to die.” By then, his wife was in constant pain and unable to sleep, “crying and moaning all the time,” he recalls. Every day for four months, dealers and addicts would climb onto his bus and purchase small bags of cocaine and crack, which he kept in his change box beside the steering wheel. Passengers and police alike took no notice. At one point, the couple was once again blindfolded and taken to a house where they joined a circle of people similarly bound. Two men brought in a third and beheaded him with a machete in front of the group’s horrified eyes—his punishment, they were told, for trying to escape. This was where Escobedo saw the one person he could identify, a uniformed police commander named Castillo.
In September 2008, Lisbeth died and Escobedo sent his children to stay with relatives. Mourning and hopeless, he also stopped working. Two weeks later, Castillo came to see him. “He said, ‘You’ll keep on working for us because you work for us.’ I really didn’t want to, so he said, ‘Here it’s not whether you want to or not,’ and he pulled out a knife. I didn’t know if he wanted to kill me or what his intentions were, but he stabbed me twice in the leg.”
In desperation, Escobedo’s father called Juan’s older sister, who lives in Canada, to see if she could help. She paid for his passport and a plane ticket, and in April 2009, with $5 to his name, Escobedo landed in Canada and immediately applied for refugee status. With his application to the Canadian Immigration and Refugee Board, Escobedo became one of the unprecedented 9,309 Mexican migrants seeking Canadian refugee status last year.
Though Escobedo’s status as a refugee applicant allowed him to go on welfare, he found work in Toronto instead. “I am not here to take anything from this country,” he says. “I am here for the second chance I wouldn’t have otherwise. And because I am more use to my family alive than dead.”
As drug-related violence sweeps across Mexico and the death toll rises, Canada has responded by shutting out more and more Mexican refugees fleeing the mayhem. In 2006, when 4,955 Mexicans applied, the Immigration and Refugee Board accepted 28 percent of those applications. That acceptance rate steadily dwindled to just eight percent, and in July 2009, the immigration ministry placed a visa requirement on all Mexicans travelling to Canada, essentially halting the flow entirely.
Lawyers and others who work with Mexican refugee claimants readily agree that there are opportunists using the violence as a pretext to enter Canada for short-term, higher-paid work than they can get at home. The dilemma they face is not gang-style execution, but a profound lack of economic opportunities.
“You have people in Mexico selling stories,” says Francisco Rico-Martinez, who heads the Faithful Companions of Jesus Refugee Centre and has been helping refugees for more than 20 years. “You come and the only detail is to say that you will be killed in Mexico if you go back. So we have those cases as well—people who are desperate for the lack of future and the poverty in Mexico, and they use any way to get out.”
Rico-Martinez estimates that roughly 60 percent of Mexicans claiming asylum here fit that profile, while 40 percent are at genuine risk of violence or murder. Yet Citizenship, Immigration and Multiculturalism Minister Jason Kenney routinely refers to all Mexican asylum claims as “bogus,” fostering a climate of skepticism even toward legitimate claimants who can document the persecution and death threats they have experienced. In these cases, says lawyer Mordechai Wasserman, the IRB “skips any consideration of credibility whatsoever. They jump to state protection. They say that Mexico is a democracy, that there’s a presumption of state protection.”
For the IRB, Mexico is a sunny travel destination, a functioning democracy where citizens have ample recourse within its domestic laws to deal with serious crime. When Wasserman points to the murders of police, soldiers, and members of the judiciary as evidence of the lack of state protection, the IRB says that evidence simply indicates that the police were killed in the line of duty and the government is making an effort to root out corruption. The absurdity of that rosy view drives Wasserman crazy. “I just want to tear my hair out,” he says.
Wasserman isn’t alone in his frustration. Aviva Basman, a lawyer at Toronto’s Refugee Law Office, describes her Mexican clients as “some of my most traumatized and most compelling cases.” Many are battered women, whose husbands have backchannel connections to Mexico’s public security apparatus that allow them to repeatedly track down and attack them. “I feel like I’m banging my head against a wall,” she says, “because you go in and make what you think are very strong legal arguments based on facts as they now are in Mexico, that is so dire, and then you get a kind of boilerplate answer back.”
Among the most prominent cases of those refused is that of Wasserman’s client Gustavo Gutierrez. A detective commander with the Ciudad Juárez police force investigating the murders of more than 200 young women, Gutierrez fled to Canada after 36 of his colleagues were killed and he himself began receiving death threats from traffickers.
Another is Toluca lawyer Alfonso Vega, who was represented by Andrew Brouwer of the Refugee Lawyers Association of Ontario. Thanks to two legal cases Vega was pursuing against their members, he ran afoul of the shadowy yet powerful Atlacomulco Group. Wasserman had a client who was actually told by an employee of the Public Prosecutor’s Office that he would be killed if he did not leave the country. His claim was also denied by the IRB.
However, one of the most gruesome consequences of an IRB decision affected a Mexican woman identified only as Nuemi.
She came to Canada with two daughters in 2004, after she and her family received death threats from the Familia Michoacana cartel. The family’s claim was rejected, but the women stayed in Canada fighting deportation orders until, in August 2008, the elder daughter returned home to visit her dying grandmother.
Detected by La Familia and raped, Nuemi’s daughter flew back to Canada—which promptly deported her back to Mexico in December. Nuemi and her younger daughter were deported the following February, and all three women went into hiding at the home of an elderly friend. Only weeks later, then seven months’ pregnant as a result of the rape, Nuemi’s elder daughter was kidnapped. Police found her body in June; not only had she been beaten and shot in the back of the head, but the baby she had been carrying had been removed by Caesarean section. The elderly man sheltering them was also killed. His family, not surprisingly, told them to leave.
After receiving various desperate email messages from Nuemi, Rico-Martinez and Basman succeeded in bringing her and her surviving daughter back to Canada on temporary residence permits. Adding insult to injury, the condition of Nuemi’s return was that she reimburse Citizenship and Immigration Canada for their original deportation costs— including those of her murdered daughter.
While Nuemi’s assertion that she and her family lived in fear of their lives—and that Mexican authorities were incapable of protecting them—was tragically and graphically proven by her daughter’s grisly death, the IRB continues to rely on the “Internal Flight Alternative.” It suggests that applicants move elsewhere within their own country, such as Mexico City, where, in the words of one ruling, “I am convinced that state protection would be reasonably forthcoming.”
For lawyers defending what they feel are clearly meritorious refugee claims, their clients risk becoming victims of the Mexican government’s stated intention—but demonstrated inability—to protect its own citizens.
“There’s this belief,” says Basman, “that it’s okay as long as the government is trying to protect—even if it can’t.”
It is early summer and Mexico City bathes in the sweltering heat of a dry season stubbornly refusing to give way to the rains. Even as the number of deaths from the government’s struggle against organized crime reaches past 23,000, even as one of the nation’s most powerful men (former presidential candidate Diego Fernández de Cevallos) is himself kidnapped, life goes on in the vast metropolis and in towns and cities across the country. In Oaxaca, an international aid and human rights caravan is attacked and two activists killed, but no police investigation will take place and everyone accepts this. It is as if an alternate reality, a webbing of uncontrollable criminality, lurks below the surface of daily life. It’s a reality to which Mexicans, appalled as they may be, are becoming accustomed.
“It’s not like you’re fearful just walking down the street,” says John Mill Ackerman, professor at the Institute of Legal Research at the National Autonomous University of Mexico, “but if you’re targeted by a drug cartel, there’s really nothing you can do. And this,” he adds, “is an inheritance of the authoritarian system of government. This has been the big problem of the democratic transition of the last 10 years. We are still working with the same state apparatus, the same institutions. The changing colours of the party has led to different groups or mafias coming in or out of government— but not to a real conquest of formal institutions over informal institutions.”
Mexicans who, like Juan Escobedo, have for one reason or another fallen afoul of what Ackerman calls “powerful informal actors” should be seeking protection from the federal attorney general, or PGR. Its Ministerio Publico, or Public Prosecutors Office, has the job of not only investigating crimes, but deciding which cases will be prosecuted. “The Ministerio Publico is in total control of every part of criminal proceedings,” says Ackerman.
While the 2000 ousting of the long-ruling Institutional Revolutionary Party from government may have cracked open the political system, the judiciary remains mired in a culture of favouritism, secrecy, and corruption.
Judges rarely question or even see defendants during trial. There are no juries, no oral arguments, and no public access to evidence until the trial is over. Evidence gathered under torture is admissible, and most suspects are found guilty without scientific proof like fingerprints or DNA. In this system, prosecutors have unusually broad powers, deciding if a suspect is guilty before their day in court and using their own police force to gather evidence to support those decisions.
For José Rosario of the non-governmental Miguel Agustin Pro Juárez Human Rights Centre, the probability of such a system offering protection is “almost zero. There are many inequalities in Mexican society,” he says, “and those same inequalities reproduce themselves in the justice system.” What’s more, Mexican law severely limits the effectiveness, and so the likelihood, of people from one state accusing anyone of so-called “common” crimes like extortion, threats, kidnapping, or even murder in another. To seek justice, victims must stay within the jurisdiction where the crime has occurred, putting themselves in even greater danger. And, says Ackerman, “that’s not going to happen because the person knows the Ministerio Publico itself is, if not totally corrupt, that at least a criminal gang will have eyes and ears there. They’re going to see who is actually charging them. So there’s a very strong disincentive to even accuse these people.” The entire apparatus allows organized crime to flourish. “Most Mexicans,” says Edgardo Buscaglia, a law professor at the Autonomous Technological Institute of Mexico and an expert on organized crime, “consider the judicial system corrupt at all levels. By being conceived as corrupt by society, people do not report crimes, do not collaborate with the authorities and therefore any effort of the state is hampered.”
Originally trained by the Mexican army in the 1990s as an elite crime-fighting squad, a Mexican version of the Green Berets, the Zetas were soon co-opted by Osiel Cárdenas, leader of the Gulf Cartel. When Cárdenas was captured, “they slowly became more and more independent in many of their operations,” says Buscaglia, “at first with kidnappings, later extortions. And at some point they acquired so much economic power that they were able to divorce themselves from the Gulf Cartel.”
By now, he says, they are much more than a drug-trafficking gang. “They are a transnational organized crime group involved in 17 types of crimes, and present in 23 countries around the world.” Branching out into weapons and human trafficking, along with contract killings, protection rackets, and the kind of small yet profitable business of forcing non-members to retail drugs, “they have made fortunes out of this huge diversification,” he says.
Their financial clout and violent methods have allowed the Zetas to infiltrate police and judicial systems in several states, including Chiapas and Oaxaca. Infiltrating the federal government has been more of a challenge for them, says Buscaglia, but that’s only because their main rival, the Sinaloa Cartel, “has had a long-term monopoly on the capture of federal authorities at the highest level.”
There are 982 “pockets” in Mexico, where “the authorities and organized crime are one force,” Buscaglia adds, “and that’s the essence of a failed state. Mexico is facing limited symptoms of a failed state—and it’s expanding.”
Although President Felipe Calderón has continually proclaimed his desire to vanquish organized crime, dispatching the army throughout the country to do so, he seems unwilling to overhaul its dysfunctional justice system. “That system,” says Buscaglia, “is quite cosy for the political and business elite.”
Mexico’s congress did pass new acts designed to reform the justice system in 2008. With reform, says Buscaglia, “the capacity of organized crime to capture the judiciary would be limited.” But the president has done nothing to actually implement those changes. For Buscaglia, judicial reform is “a joke—two years have gone by and nothing substantive has been done.”
“The big opportunity of democratic transition,” says Ackerman, “the possibility of reforming our institutions, of bringing democracy into the state itself? Calderón just hasn’t done it.”
The third trial of Juan Escobedo is still under way. The ruling that will, in one way or another, change his life is yet to come. An April 2010 hearing was interrupted, as the IRB grappled with the fact that he took part in criminal activity, even if it was against his will. Another hearing in June was postponed. He remains convinced that if he does return to Mexico, the Zetas will somehow find him and subject him to the same gruesome death they have historically inflicted on so many others. “You don’t ask how they can find you,” he explains. “They have all your documents and that’s why they go and look for you.”
For her part, Basman is convinced that the IRB will carry on making negative rulings against Mexican claimants. “Because of the sheer number of claimants, there’s a fear,” she said, “that if you give positive decisions, you’re just encouraging more to come. If you recognize Mexico as a refugee-producing country, then more are going to come and they’re just going to be overwhelmed at the board.”
Yet in Mexico, said Buscaglia, “this nightmare will never cease until the violence and the suffering of average Mexicans reaches the political and business elite—when their families, their persons, and their net worth is actually hampered by organized crime, and the monster they created starts to eat them.”