Jane Doe and her son crossed the U.S. border out of desperate fear for their lives.
For years prior, they lived peacefully in a town in Mexico, while Jane’s husband worked in the United States to provide greater financial support for the family. All was well.
But cartels in the town grew more powerful and violent. They increasingly preyed on women, often raping and murdering them. They also demanded large sums of money from residents. Those who did not or could not comply were met with brutal violence—and often death.
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One day, the cartel started targeting Jane. They relentlessly surveilled her and her son, threatened kidnapping and murder, and attempted to attack them. So she and her son fled to the United States for safety.
Jane is one of my clients, though that’s not her real name, of course. I’m an immigration lawyer at the Mississippi Center for Justice, and it was clear to me that she had a strong claim for relief. But an immigration judge imposed a little-known, abusive practice to deny her protection—one that the Biden administration could easily nix.
When an asylum applicant like Jane flees a persecutor outside of the government, that person must show that their home country is unable or unwilling to protect them from persecution. In this case, the immigration judge ruled that since Jane didn’t file a police report, she could not meet that requirement.
But like many asylum-seekers, Jane had plenty of evidence to show that reporting the incidents to the local authorities would have been futile, or would have even made her life more dangerous. When she told a relative who worked for a city official about the abuse, they instructed her to avoid reporting because the police would not investigate. When a friend reported her daughter’s dead body in a canal, officials robbed the friend of her money and phone. And when she saw cartel members drive nearby and shoot three young people, she saw the police—present at the scene—let the perpetrators ride on without consequence.
She felt that reporting the threats to authorities “would be like a death sentence.”
National reports confirm Jane’s fears. According to the U.S. Department of State Human Rights Report for Mexico, the country’s “most significant human rights-related problems involved involvement by police and military in serious abuses, including unlawful killings, torture, and disappearances.”
So why is that a person would have to work with corrupt cops to be granted asylum? It’s complicated.
It’s a long-standing rule that asylum applicants have to demonstrate the state can’t or won’t protect them from non-state persecutors. But they don’t have to prove this specifically by showing they reported the danger to the police. Nevertheless, some judges have attempted to impose such mandates in court. And in a set of regulations, the Trump administration tried to require that asylum-seekers report crimes to local authorities before seeking protection in the United States.
But a federal court prohibited the regulations from going into effect, so immigration judges are not supposed to impose it. Additionally, the Board of Immigration Appeals—the highest administrative body for interpreting and applying immigration laws—has explicitly found that filing a police report is not a requirement for being granted asylum when the applicant can prove that doing so would have been useless or life-threatening.
And yet, many immigration judges, like the one Jane faced, are imposing that practice anyway.
This policy may seem small, but it has huge implications. It thwarts our obligations to protect people fleeing persecution and torture. People fleeing gangs, terrorist groups, and domestic abusers, and more could have to report the abuses to officials who are complicit in those acts.
The Justice Department just took major steps to protect our asylum system by nixing Trump administration restrictions on asylum for survivors of gang violence and domestic abuse. Now, the Biden administration needs to keep moving forward—and address the flawed policy leaving Jane and so many others in danger.
It’s a simple fix. Officials should issue regulations stipulating that if the applicant did not contact the authorities in their home country, then, the immigration courts and asylum officers must consider evidence that reporting would have endangered them.
We need a more humane immigration system—one that doesn’t force people at risk of being tortured or murdered to work with corrupt authorities.
