Last week I discussed a Washington Post article focused on Rodrigo Carrillo, a struggling coffee farmer from Huehuetenango, Guatemala. Carrillo, facing an unprofitable crop, has decided to depart Guatemala with his five-year-old son, Marvel, fraudulently transit Mexico, and pay $2,000 to a smuggler to bring him across the Southwest border in order to claim asylum. While I questioned the validity of that claim, recent news reports have described an even more questionable and bizarre one.

KVOA News 4, the Tucson NBC affiliate, has reported on a June 10, 2019, gun battle that took place across the border from Douglas, Ariz., in Agua Prieta, Sonora, Mexico. That gun battle apparently involved an internal dispute among members of the Sinaloa drug cartel and, by the end, almost 12 people had died. A gun battle directly across the border from the United States in which almost a dozen people were killed would be shocking enough.

One passage in that report, however, underscores the biggest difficulty the United States faces in securing its Southwest border: "Sources told News 4 Tucson four cartel members showed up at the port of entry asking for asylum and claimed 'credible fear'."

Given the low standard, the regrettable thing is that those cartel members likely were found to have a credible fear of persecution and/or torture.

Section 235(b)(1)(B)(v) of the Immigration and Nationality Act (INA) defines the term "credible fear of persecution" as "a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208 of" the INA.

As I have explained previously:

An applicant for asylum has the burden to demonstrate that he or she is eligible for that protection. To satisfy that burden, the applicant must prove that he or she is a refugee. A "refugee" is a person outside of his or her country of nationality or habitual residence who is "unable or unwilling" to return to that country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

The standard for asylum relief is not high. In INS v. Cardoza-Fonseca, the Supreme Court held that an applicant can show a "well-founded fear of persecution" if that applicant has only "a 10% chance of being shot, tortured, or otherwise persecuted."

Four of the bases for asylum relief — race, religion, nationality, and political opinion — are (usually) straightforward. The other basis for asylum, "membership in a particular social group," is not, however. In Matter of A-B-, then-Attorney General Jeff Sessions explained:

As the Board and the federal courts have repeatedly recognized, the phrase "membership in a particular social group" is ambiguous. ... Neither the INA nor the implementing regulations define "particular social group." ... "The concept is even more elusive because there is no clear evidence of legislative intent." ... As then-Judge Alito noted for the court, "[r]ead in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a 'particular social group.' Thus, the statutory language standing alone is not very instructive."

The Congressional Research Service has noted that "some courts have held that a particular social group may include witnesses who testified against gang members, family members of such witnesses, and, in some cases, former gang members." Undoubtedly, the four individuals identified in the KVOA report no longer considered themselves members of the Sinaloa cartel (and it is doubtful that the cartel would consider them such), and therefore likely identified as "former cartel members", which is not substantially different from former gang membership.

Section 208(b)(2)(A)(iii) of the INA makes clear that an alien is not eligible for asylum where "there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." Logically, that bar would apply to these former cartel members (although there are still serious issues of proof with respect to such a determination).

Pursuant to 8 C.F.R. § 208.30(e)(5), however, an asylum officer may not find that an alien does not have a credible fear of persecution even if this bar appears to apply to that alien; rather, the asylum officer must place that alien into removal proceedings for an immigration judge to consider the alien's asylum claim. Cartel members who are fleeing a gun battle likely can show the requisite fear of harm.

Further, asylum officers are often reluctant to find that a unique proposed social group does not satisfy the statutory standard, a position which is bolstered by the regulations, which state that:

In determining whether the alien has a credible fear of persecution ... or a credible fear of torture, the asylum officer shall consider whether the alien's case presents novel or unique issues that merit consideration in a full hearing before an immigration judge.

While on the subject, I would note that although there is no statutory basis for a positive credible-fear finding based on torture, the regulations specifically direct asylum officers to make a determination as to whether an alien in expedited removal proceedings has such a fear.

As the Department of Justice (DOJ) has stated: "Torture is defined, in part, as severe pain or suffering (physical or mental) that is intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity." An alien who can establish that he or she would be shot or murdered if returned to his home country would likely be found to have a fear rising to the level of torture.

Does the Sinaloa cartel act "by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity" in Mexico? Likely not, given the fact that even CNN admits that: "The Mexican government has been fighting a war with drug traffickers since December 2006." That said, based on my experience, if an alien shows a credible fear of harm rising to the level of torture, the asylum officer will generally refer the case to the immigration court to make a decision as to whether such harm would be inflicted at the instigation or with the consent or acquiescence of the government.

I have previously argued that the Department of Homeland Security (DHS), and not DOJ, should have jurisdiction over torture convention claims, and the incident in Agua Prieta reinforces that argument. Moreover, asylum officers should have the authority to determine that an alien who is barred from receiving asylum under sections 208(a)(2) and (b)(2)(A) of the INA does not satisfy the credible fear standard, for reasons that the Agua Prieta incident make clear.

It is possible that the four alien cartel members who have reportedly claimed credible fear in Douglas, Ariz., after fleeing a gun fight in Mexico will be found not to have a credible fear of asylum or torture, and be removed. I am not hopeful, however. As I have recently explained, the Southwest border is out of control, and a humanitarian and national security disaster is occurring on a daily basis as DHS struggles to deal with the onslaught of illegal entrants. When falling commodity prices and internecine cartel wars provide a ticket into the United States, however, that situation is only going to get worse. If that is possible.