The lack of clarity surrounding Mexico’s asylum seeker release program (programa de salidas de la estación migratoria, SEM), together with the absence of public policy guaranteeing the rights of refugees, present significant obstacles for asylum seekers in refugee recognition procedures before the Mexican Commission for Refugee Assistance (COMAR).
Migration authorities persist in increasingly and automatically detaining migrants and asylum seekers. In 2021, 307,679 people were detained, up from the 82,379 people detained in 2020, despite the pressure exerted by civil society organisations in the face of the national health emergency issued on 30 March 2020 by the federal government due to SARS-COVID-19. This pressure took the form of legal actions and advocacy to free vulnerable migrants and asylum seekers held in detention centres. During 2020, detentions continued and few asylum seekers had access to the SEM program. While the program was initially viewed as promising and as a positive practice, as access for detained asylum seekers became more restricted, it gradually dissipated and effectively came to an end,
The SEM is a tripartite mechanism between the National Institute of Immigration (INM), the United Nations High Commissioner for Refugees (ACNUR), and the COMAR. It was first implemented in July 2016, with the aim of providing alternatives to detention for asylum seekers in detention centres.
The SEM benefitted 18,064 people between January 2017 and October 2020. However, in November and December 2020, only 145 people were able to access the program following new guidelines by the National Institute of Immigration (INM) to all detention center authorities. These instructions excluded people from the program if they had entered Mexican territory irregularly; if they were traveling alone, that is, without accompanying family, and had entered irregularly; or children who had entered irregularly. This evidently violates both Mexican law and international conventions that establish the international principle of not sanctioning asylum seekers for irregular entry.
New research on alternatives to detention for refugees in Mexico
In 2020, Asylum Access Mexico published a report on their research into the challenges and obstacles faced by asylum seekers in accessing the SEM program, as well as the process of applying for refugee status from detention. This research found that detention is in itself an obstacle to applying for refugee status in Mexico. In addition, those who applied for asylum when in detention, were forced to remain detained for an average of 40 days. In one case, a person was detained twice. They were initially held for a little over 40 days, followed by a further 2 months when detained in another city, even though they had been released from the original detention center under the SEM program.
The SEM also lacks clear criteria and transparency. As the program is neither institutionalised nor regulated, it is subject to discretion in its implementation and practically depends on the decision of the public official on duty. This discourages effective access to asylum. Ambiguity around how the program operates creates uncertainty for refugees. As such, many opt not to apply for asylum while in detention, as they understand that this will entail being held for prolonged periods. In this regard, people prefer to accept their deportation, despite the risk posed by being returned to the country from which they fled in the first place in order to safeguard their lives.
These findings reflect the urgent need to reform the refugee and immigration laws in Mexico in order to guarantee that immigration detention for people requiring international protection ceases to be an automatic and arbitrary practice, and is used only as a last resort in exceptional cases, with strict compliance to the criteria of necessity, proportionality and reasonableness of such detention.
By Alejandra Macías Delgadillo, Executive Director, Asylum Access Mexico & IDC International Advisory Committee Member