2023 RLLR 43

Citation: 2023 RLLR 43
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2023
Panel: Graham Zilm
Counsel for the Claimant(s): Jane G. Rukaria
Country: Mexico
RPD Number: VC3-07353
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

REASONS FOR DECISION

[1]         XXXX XXXX XXXX (the “claimant”) alleges that she is a citizen of Mexico and claims protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).^[1] 

ALLEGATIONS

[2]         The claimant is a XXXX from Veracruz, Mexico who alleges a risk of harm at the hands of the Cártel de Jalisco Nuevo Generación (“CJNG”). Prior to becoming in a XXXX in Mexico, she resided in the United States of America from 2003 to 2012: she has two daughters born during her time in the USA. These children currently reside in the United States of America and are American citizens. 

[3]         She says that her problems with the CJNG began on XXXX XXXX, 2022. She was working at a XXXX XXXX when several persons entered and demanded the claimant XXXX one of them, who was XXXX XXXX XXXX XXXX XXXX. One of the people asked the claimant if XXXX XXXX XXXX XXXX would be required, and the claimant said the XXXX would need further XXXX but said she would not be able to do so herself. They drew a firearm on the claimant and told her they were from the CJNG and that if she refused to help them they would kill her and leave her corpse in the street. The claimant then acquiesced to help them and they left the XXXX. 

[4]         The claimant tried to report the threat to the police, but the police stopped writing in the midst of her statement telling her that there was nothing they could do help her. The following day the claimant and her family fled to another town, about three-and-a-half hours away. They spent a month there, before the claimant fled to Tijuana. The claimant feared that if she were to return to work as a XXXX that she may be discovered so she took a series of jobs in Tijuana outside of the XXXX field. 

[5]         In XXXX 2023, the claimant’s mother received a phone call. The person on the line did not identify himself, or on whose behalf he was calling, but he told the claimant’s mother that they knew she was in Tijuana and if she “did not return back to work for them”^[2] then the claimant knew what would happen to her. The claimant reasoned that this must be the CJNG. The claimant remained in hiding, but tried to find a way out of the country. 

[6]         The claimant’s youngest daughter was able to depart for the USA on XXXX XXXX, 2023 joining her oldest sister who was in Washington state preparing for university studies. The claimant had been told by friends and family that because her children were US citizens that she may have an easier path in to the USA. 

[7]         The claimant presented herself to American immigration officials at the border. She was told that she had to register online and she would be given an interview date in two to five months time. The claimant, fearing that she may not be able to enter the USA, made arrangements to travel to Canada. 

[8]         The claimant traveled to Toronto on XXXX XXXX, 2023. Thence she traveled to British Columbia on XXXX XXXX, 2023 where she sought protection.

[9]         The claimant says that she fears death at the hands of the CJNG if she were to return to Mexico. She says that she has heard from a former colleague of hers at the XXXX, who was abducted by CJNG in XXXX 2023, that the cartel has now issued orders to kill the claimant. 

DETERMINATION

[10]       I find that the claimant is a person in need of protection pursuant to section 97(1) of the Act. Accordingly, I accept her claim. 

ANALYSIS

Identity

[11]       I find that the claimant’s identity and Mexican nationality is established on a balance of probabilities by her testimony and documentary evidence, including a copy of her Mexican passport at Exhibit 1. 

Claimant is not Excluded pursuant to Article 1E 

[12]      The claimant wrote in her Basis of Claim narrative that; “My friends and my brother had advised me that because my children were USA citizens, I could apply to be reunited with them in USA on humanitarian grounds because my life was in danger in Mexico.”^[3] 

[13]      On November 11, 2023 the Board notified the Minister per Rule 26 of the RPD Rules that there was a possibility that the claimant may be excluded from protection pursuant to Article 1E of the Refugee Convention. On December 5, 2023 the Minister notified the Board that they would not be intervening in the claim and that they would not be present at the hearing. 

[14]      In her testimony before the Board the claimant clarified her friends and family had told her that it may be easier for her to seek refugee protection in the United States on account of the American citizenship of her children. There is no indication in any of the documents in the National Documentation Package (“NDP”) for the United States of America at Exhibit 3.2 that the claimant would have access to any form of status, at all, through her American born children who were 19 and 13 years old respectively at the time the claim was heard by the Board. The claimant lived in the United States from 2003 to 2012, but did not obtain any legal status in the country at that time. 

[15]      I find that the claimant is not excluded from protection under Article 1E. There is no evidence before me that the claimant has any form of status, let alone status similar to that of a national, in the United States of America at the time the claim was heard, nor is there any evidence that the claimant had such status and lost it, or had access to such status and failed to acquire it.^[4]

Credibility

[16]       The claimant spoke in a clear, straightforward manner and there were no inconsistencies in her testimony or between her testimony and the other evidence before me. I found her to be a credible witness and therefore believe what she has alleged.

[17]      In addition to her testimony, the claimant provided a number of documents to corroborate key aspects of her allegations at Exhibit 6. These documents include:

–       Various proof of education and employment documents, including her employment both as a XXXX in XXXX, Veracruz as well as her employment in different capacities in Tijuana, Mexico; 

–       An affidavit from the claimant’s mother dated XXXX XXXX, 2023 accompanied by a copy of her Mexican national voting ID. In the affidavit she writes, among other things, about relocating with the claimant following the threats from the CJNG, about the phone threats of XXXX 2023, and about how she has received further threatening phone calls about her daughter; and,

–       A written statement from a former colleague of the claimant’s, RCG, dated XXXX XXXX, 2023 accompanied by a copy of the writer’s Certificate of Unique Population Registration Key. In the written statement she notes that she worked with the claimant but was not present during the events of XXXX XXXX 2022. She writes that she was later taken captive from the XXXX by the CJNG and forced to provide XXXX XXXX to their members. She says that during her confinement she overheard that orders had been given by the cartel to find and kill the claimant. She also stats that she herself has now fled XXXX for her life. 

[18]      I have no reason to doubt the authenticity of any of the claimant’s evidence above and note that the material is relevant and probative. Accordingly, I have placed full weight on the material provided by the claimant at Exhibit 6. 

[19]      I find that the claimant has established the underlying facts of her allegations and I accept them without reserve. I find, for the sake of greater clarity, that the claimant was targeted by the CJNG starting on XXXX XXXX, 2022 when they demanded the claimant provide XXXX XXXX to one of their members and that she continue to provide further XXXX XXXX. When the claimant fled these demands of the cartel, they continued to track her locating her in the city of Tijuana. They demanded, though her mother, that she return to XXXX, Veracruz and work for them or they would kill her. Since the claimant has come to Canada the cartel has now issued an order that the claimant be killed in retribution for refusing and fleeing their demands. 

No nexus

[20]      I find that the claimant has not established a nexus between the harm alleged and a Convention ground. I see no credible and trustworthy evidence before me to establish that the claimant fears gender-based persecution, or any other persecution based on a Convention ground. It appears to me that the claimant was targeted initially by the cartel by chance—they happened to come into the XXXX where she was working one day—and because the claimant fled their demands they have continued to threaten her and now seek to kill her. Accordingly, I have assessed the claim pursuant to section 97(1) of the Act. 

Risk to life

[21]       In reaching my decision I have followed the framework set out in the July 28, 2022 Chairperson’s Jurisprudential Guide at TC1-05038.^[5] At paragraph 23 of that decision the Refugee Appeal Division writes:

[23]         Building on the cases of Portillo and Correa, I propose the following framework of analysis for assessing claims under paragraph 97(1)(b) of the IRPA:

First Stage: Determine the risk faced by the Claimant

•         Clearly identify the nature of any ongoing or future risk.

•         Clearly identify the basis (or initial reason) for the risk.

•         Clearly identify the degree of the risk (or proximity to the risk). Consider any relevant factor, such as:

o   The severity and number of incidents; and

o   Any pattern or link between the incidents; and

o   Any change over time.

Second Stage: Determine whether the risk is faced generally by others

•         Compare the nature and degree of the risk faced by the Claimant with the nature and degree of the risk faced generally by other individuals in or from their country.^[6]

The Risk faced by the claimant 

[22]       The claimant faces a risk to her life (nature of risk) at the hands of the CJNG, a prominent criminal cartel in Mexico. The claimant was initially approached by members of the cartel and work and forced to XXXX XXXX XXXX XXXX. When the claimant told the cartel that she would not provide XXXX XXXX XXXX XXXX threw pointed a gun at her and told her if she did not, they would kill her. After the claimant fled the cartel, they continued to seek her and ultimately located her in the city of Tijuana, and demanding her return. After the claimant fled Mexico, the cartel issued an order to locate and kill the claimant. 

[23]      The degree of risk is significant, and has been escalating since the claimant’s first run-in with the cartel. Initially, the claimant endured no harm by acquiescing to their demand to XXXX XXXX XXXX. However, since that time the claimant has fled and thereby opposed the cartel, at which point her return was demanded. When she did not return, the cartel determined that they would kill her. 

[24]      The CJNG is a powerful and violent cartel. NDP 7.2 notes that the CJNG was declared one of the most dangerous cartels in Mexico by the government in 2015.^[7] The CJNG is an international operation with activities in the Americas, Asia and Europe. Within Mexico they have a presence in 27 of 32 states as of 2020. NDP 7.2 states that CJNG “has been linked to several mass graves in southwestern Mexico and was responsible for shooting down a Mexican army helicopter in 2015, the first successful takedown of a military asset of its kind in Mexico.”^[8]

[25]      NDP 7.7 notes the expansive and national reach of the CJNG and that it “is known for its ‘aggressive use of violence’”.^[9] It notes that CJNG is fast-growing and that it has taken advantage of the Covid-19 pandemic to ‘claim new territory.’ 

[26]      According to NDP Item 7.16, the Mexican drug cartels engage in extreme forms of violence as a means of maintaining power.  For example, these groups are known to place dead and mutilated bodies on public display in order to terrorize the public and ensure compliance with the group’s demands. Those who betray or steal from the cartel are dehumanized and portrayed as rats who must pay with a gruesome death for their betrayal. Examples of actions that cartels consider to be a form of betrayal which warrants death include failing to pay a bribe or quota:

Murder, torture and abduction are articulated as the order of things in the business of drug trafficking: “this is how it works, you murder those who do not pay the bribe we ask [cuota], those who betray the cartel, those who give information to other cartels. You torture people to obtain information from them or to make them pay for mistakes they made” (anonymous). ^[10]

[27]      I find that the totality of the evidence, including the claimant’s evidence as well as the country condition evidence in the NDP for Mexico, shows that the claimant’s degree of risk is significant and that she has been personally targeted by the CJNG, a powerful and violent cartel in Mexico. 

The risk is not faced generally by others in Mexico 

[28]      I find that others are not generally in the same position as the claimant. While there is a widespread risk of crime and violence in Mexico, the general population does not currently face a risk to life at the hands of the CJNG. The claimant’s risk arose from a demand for XXXX XXXX. When the claimant fled rather than give-in to the demands of the cartel for further XXXX XXXX, CJNG tracked her and demanded her return. Since she subsequently fled the country, the CJNG has now marked her for death.

[29]      I find, on a balance of probabilities, that the claimant faces a personal risk to her life and that this risk is not faced generally by others in Mexico. 

State protection

[30]       Except in situations where the state is in a state of complete breakdown, states must be presumed capable of protecting their citizens. This presumption can be rebutted by “Clear and convincing” evidence of the state’s inability to protect. 

[31]      In terms of state protection, in general, the local and state authorities are unwilling and unable to protect victims of cartel violence. According to the NDP, “continual corruption, weakness, and lack of competence in Mexican law enforcement, particularly of local and state police forces, but also of the Federal Police, have created a bedrock climate of impunity and critically exacerbated the criminal violence.”^[11] 

[32]      The claimant explained that she did visit the police, and tried to make a police report in XXXX 2022; however, the officer taking her report stopped writing and told her there was nothing the police could do. In any event, the objective evidence supports the claimant’s contention that the police are unable to protect persons from the cartels in Mexico. 

[33]      Despite the state’s attempts to eradicate drug trafficking and target top level gang leaders, their strategies have simply resulted in shifting alliances and the emergence of new gangs. No meaningful attempts have been made to protect local populations from the daily violence that occurs throughout the country. Human Rights Watch indicates that Mexican authorities routinely fail to investigate crimes or provide justice for victims due to rampant corruption, complicity with criminals and abusive officials.^[12]A Response to Information Request at 10.2 of the NDP notes that, “According to the BTI 2020, “[i]n many localities of Mexico, the drug organizations have control of the local police” (Bertelsmann Stiftung 2020, 6).”^[13] 

[34]      I therefore find that there is clear and convincing evidence before me of the state’s inability to protect victims of the cartels. Accordingly, the panel finds that state protection would not be forthcoming to the claimant in this case. 

Internal Flight Alternative – Merida

[35]      At the outset of the hearing I proposed Merida as potential Internal Flight Alternative (“IFA”) for the claimant. 

[36]      Once an IFA is raised, I must be satisfied on a balance of probabilities that (1) the claimant would not be subject personally to a danger of torture, or to a risk of life or a risk of cruel and unusual punishment, or face serious possibility of persecution in the proposed IFA and (2) that conditions in that part of the country are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimants, for them to seek refuge there.^[14]

[37]      The onus is on the claimant to show that they do not have an IFA. The burden placed on the claimant is a high one. The claimant must show that there are conditions in that IFA that would jeopardize their life and safety in relocating to that area.^[15] In the Federal Court of Appeal decision of Ranganathan v. Canada (Minister of Citizenship and Immigration) in 2001, it was stated that the test is to show that the IFA is unreasonable. That test requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimants in relocating to a safe area.^[16]  Actual and concrete evidence of adverse conditions is required. The burden of proof is on the claimant to establish that the proposed IFA is not viable under either one of the two prongs of the test.^[17] 

[38]      I find that claimant has established that she faces a risk from the agents of harm in Merida, in particular as the claimant has provided credible evidence to the panel showing the CJNG has the means as well as the motivation to find her and remains motivated to find her.

[39]      The claimant testified that she fears that the agent of harm will find her anywhere in Mexico. I note that her evidence shows that the agent of harm successfully located, through means unknown, to locate the claimant after she relocated to Tijuana, Mexico a city far distant from her hometown of XXXX, Veracruz. NDP 7.8 notes that cartels in Mexico track and retaliate against persons in Mexico.^[18] There are several means available to the cartels for tracking persons, including bribing phone companies to track their calls and working with ‘corrupt’ Mexican officials to have spyware installed on persons’ phones. NDP 7.15 notes that cartels in Mexico also use family networks and private investigators to track people, as well as property records in the US and Mexico and placing GPS trackers on cars.^[19] NDP 7.8 quotes a Doctor of criminology who states, “[i]f any of these organizations is interested in harming [an individual], no city will provide a safe haven.”^[20] NDP 7.8 notes that the cartels:

…are motivated to track certain individuals because they steal or lose money; due to personal rivalries; for political incentives/reasons (Doctor of criminology 21 July 2021) or due to “personal vengeances; perceived betrayal; public exposition of relationships with public officials, politicians or investments; or cooperation with authorities as informants or collaborative witnesses.^[21]

[40]      The claimant’s evidence indicates that the CJNG remains motivated to find her. 

[41]      The panel finds on a balance of probabilities that CJNG remains motivated to find the claimant and that they have the means of doing so anywhere within Mexico. Accordingly, I find that the claimant does not have a viable internal flight alternative. 

CONCLUSION

[42]       For the foregoing reasons I find that XXXX XXXX XXXX is a person in need of protection per section 97(1) of the Act.

[43]       Accordingly, I accept her claim for protection. 

(signed) Graham Zilm

December 15, 2023

^[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27. 

^[2] Exhibit 2, Basis of Claim written narrative, p. 3, para. 15. 

^[3] Exhibit 2, Basis of Claim narrative p. 3f., para. 17. 

^[4] Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118, para. 28. 

^[5] X (Re), 2021 CanLII 95825 (CA IRB). 

^[6] X (Re), 2021 CanLII 95825 (CA IRB), para. 23. 

^[7] National Documentation Package, Mexico, 29 September 2023, tab 7.2: Mexico: Organized Crime and Drug 

Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. 7 June 2022. R41576.

^[8] National Documentation Package, Mexico, 29 September 2023, tab 7.2: Mexico: Organized Crime and Drug 

Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. 7 June 2022. R41576.

^[9] National Documentation Package, Mexico, 29 September 2023, tab 7.7: The Jalisco New Generation Cartel (Cártel 

de Jalisco Nueva Generación, CJNG)  its activities, areas of operation, and influence; ability of the CJNG to track 

and retaliate against people who move to other areas of Mexico; the profiles of people they would be motivated to 

track and target (2021–August 2023) . Immigration and Refugee Board of Canada. 31 August 2023. MEX201603.E.

^[10] National Documentation Package, Mexico, 29 September 2023, tab 7.16: Violence within: Understanding the Use 

of Violent Practices Among Mexican Drug Traffickers. University of San Diego. Justice in Mexico. Karina García. 

November 2019.

^[11] National Documentation Package, Mexico, 29 September 2023, tab 7.22: Mexico’s Out-Of-Control Criminal 

Market. Foreign Policy at Brookings. Vanda Felbab-Brown. March 2019.

^[12] National Documentation Package, Mexico, 29 September 2023, tab 2.3: Mexico. World Report 2023: Events of 

2022. Human Rights Watch. January 2023.; National Documentation Package, Mexico, 29 September 2023, tab 2.4: National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21: Mexico. Mexico. 23 August 2018. A/HRC/WG.6/31/MEX/1.

^[13] National Documentation Package, Mexico, 29 September 2023, tab 10.2: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of corruption (2017–September 2020). Immigration and Refugee Board of Canada. 1 September 2020. MEX200314.E.

^[14] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (FCA).

^[15] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

^[16] Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.).

^[17] Velasquez v. Canada (Citizenship and Immigration), 2010 FC 1201.

^[18] National Documentation Package, Mexico, 29 September 2023, tab 7.8: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); the ability and motivation of organized … Immigration and Refugee Board of Canada. 8 September 2021. MEX200732.E.

^[19] National Documentation Package, Mexico, 29 September 2023, tab 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019). Immigration and Refugee Board of Canada. 15 August 2019. MEX106302.E.

^[20] National Documentation Package, Mexico, 29 September 2023, tab 7.8: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); the ability and motivation of organized … Immigration and Refugee Board of Canada. 8 September 2021. MEX200732.E.

^[21] National Documentation Package, Mexico, 29 September 2023, tab 7.8: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); the ability and motivation of organized … Immigration and Refugee Board of Canada. 8 September 2021. MEX200732.E.