MAKING THE CASE FOR HEALTH HARDSHIP: EXAMINING THE MEXICAN HEALTH CARE

MAKING THE CASE FOR HEALTH HARDSHIP:
EXAMINING THE MEXICAN HEALTH CARE
SYSTEM IN CANCELLATION OF REMOVAL
PROCEEDINGS
ADELA DE LA TORRE,* ROSA GOMEZ-CAMACHO,**
AND ALEXIS ALVAREZ***
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
94
I. IMMIGRATION ENFORCEMENT AND REMOVAL PROCEEDINGS . . . . .
96
A. Cancellation of Removal . . . . . . . . . . . . . . . . . . . . . . . .
96
B. The “Exceptional and Extremely Unusual Hardship” Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
97
II. MEXICO-U.S. MIGRATION FLOW AND HEALTH CARE DISTRIBUTION IN MEXICO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
98
A. Trends in Migration Flow from Mexico to the United
States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
99
B. Adverse Conditions Affecting Access to Health Care in
Mexico’s High-Migration Areas . . . . . . . . . . . . . . . . . . .
101
III. THE HEALTH CARE DELIVERY SYSTEM IN MEXICO . . . . . . . . . . .
104
A. The Current Mexican Health Care System. . . . . . . . . . . .
105
B. Accessing Health Care in Mexico’s High-Migration Areas . .
109
IV. MEDICAL HARDSHIP: A CASE STUDY . . . . . . . . . . . . . . . . . . . .
110
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
115
* Department of Chicana/o Studies, University of California Davis.
** School of Education, University of California Davis.
*** Senior Articles Editor, UC Davis Law Review; J.D. Candidate, UC Davis School of Law,
2011. © 2010, Adela de La Torre, Rosa Gomez-Camacho, and Alexis Alvarez.
93
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INTRODUCTION
A 2008 report from the Pew Hispanic Center estimates that there are 11.9
million undocumented immigrants living in the United States, approximately
fifty-nine percent of which are from Mexico.1 As of January 2008, about 3.4
million of the estimated 12.6 million legal permanent residents living in the
United States came from Mexico.2 As the populations of undocumented
immigrants and legal permanent residents have produced children and
entered into marriages, they have created millions of “mixed-status” families.3 A mixed-status family is one with both citizen and non-citizen members.4 Currently, there are approximately 8.8 million people in the United
States living in mixed-status families, 4.5 million of whom are children of
immigrant parents.5 Living without the protection of full citizenship leaves
mixed-status families in constant fear of being torn apart by the ever-present
possibility that a family member might be removed from the United States.6
In 2008, U.S. Immigration and Customs Enforcement removed nearly
359,000 aliens from the United States,7 sixty-nine percent of whom were
Mexican nationals.8
One of the forms of immigration relief most frequently sought by noncitizens facing deportation is cancellation of removal.9 One of the requirements that an applicant for cancellation of removal must meet is demonstrating that the applicant’s removal would cause “exceptional and extremely
unusual hardship” to his or her United States citizen or legal permanent
resident child, spouse, or parent.10 While an immigration judge may consider
a variety of factors in determining whether an applicant meets the hardship
requirement, the standard is quite difficult to meet.11 It is not enough to
demonstrate that a qualifying relative would suffer some emotional hardship
1. JEFFREY S. PASSEL & D’VERA COHN, PEW HISPANIC CENTER, A PORTRAIT OF UNAUTHORIZED
IMMIGRANTS IN THE UNITED STATES, at i (2009), http://pewhispanic.org/files/reports/107.pdf.
2. NANCY RYTINA, OFFICE OF IMMIGRATION STATISTICS, DEP’T OF HOMELAND SECURITY, ESTIMATES OF THE LEGAL PERMANENT RESIDENT POPULATION IN 2008, at 3 (2009), http://www.dhs.gov/
xlibrary/assets/statistics/ publications/ois_lpr_pe_2008.pdf.
3. David B. Thronson, Creating Crisis: Immigration Raids and the Destabilization of Immigrant
Families, 43 WAKE FOREST L. REV. 391, 396 (2008) [hereinafter Thronson, Creating Crisis].
4. Michael Fix & Wendy Zimmerman, All Under One Roof: Mixed-Status Families in an Era of
Reform, 35 INT’L MIGRATION REV. 397, 397 (2001).
5. PASSEL & COHN, supra note 1, at 8. See generally KARINA FORTUNY, RANDY CAPPS, MARGARET
SIMMS & AJAY CHAUDRY, URBAN INSTITUTE, CHILDREN OF IMMIGRANTS: NATIONAL AND STATE
CHARACTERISTICS 1-2 (2009), http://www.urban.org/UploadedPDF/411939_childrenofimmigrants.pdf.
6. See Thronson, Creating Crisis, supra note 3, at 398.
7. OFFICE OF IMMIGRATION STATISTICS, DEP’T OF HOMELAND SECURITY, ANNUAL REPORT: IMMIGRATION E NFORCEMENT A CTIONS : 2008, at 1 (2009), http://www.dhs.gov/xlibrary/assets/statistics/
publications/enforcement_ar_08.pdf.
8. Id.
9. See 8 U.S.C. § 1229b(b)(1) (2008); David B. Thronson, Choiceless Choices: Deportation and
the Parent-Child Relationship, 6 NEV. L.J. 1165, 1170 (2006) [hereinafter Thronson, Choiceless
Choices].
10. 8 U.S.C. § 1229b(b)(1)(D).
11. See In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62–65 (BIA 2001).
2010]
HEALTH HARDSHIP
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or reduced educational and economic opportunities if the applicant were to
leave the country.12 The hardship must be substantially greater than that
which one would normally expect to result from the deportation of a close
family member.13 The Board of Immigration Appeals (BIA) has identified
certain circumstances that might present a strong case for cancellation of
removal.14 The BIA has also made clear that “the hardship standard is not so
restrictive that only a handful of applicants, such as those who have a
qualifying relative with a serious medical condition, will qualify for relief.”15
One of the situations the BIA has identified as presenting a strong case for
cancellation of removal is that of an applicant who has “a qualifying
[relative] with very serious health issues.”16 A satisfactory showing that a
qualifying relative’s health problem cannot be adequately treated or monitored if the relative leaves for the applicant’s country of origin may tip the
scale in favor of granting the applicant’s request for cancellation.17 An
immigration judge must consider the impact of a forced relocation on a
“qualifying [relative] with very serious health issues” in light of the health
care system currently in place in the immigrant’s home country when making
a determination regarding whether the hardship requirement is met.18
This Article further develops an understanding of the use of medical
hardship arguments in cancellation of removal proceedings involving Mexican immigrants in mixed-status families. Part I discusses the removal process
and the requirements an applicant must meet to qualify for cancellation of
removal. It then explains the evolution of the “exceptional and extremely
unusual hardship” requirement, including the emergence of health hardship
as a factor that may meet that requirement. Part II delineates general trends in
the flow of Mexican immigrants to the United States and the availability and
distribution of health care services in the regions producing the highest
numbers of immigrants to the United States. Part III provides a detailed
examination of the health care delivery system in Mexico, and the accompanying difficulties in acquiring adequate medical care, to make a case for
extreme health hardship. Part III also considers the impact of factors such as
the nature of the illness, the location where the applicant would be returned,
and any associated ancillary costs—including the price of travel and lost
wages—on an individual’s ability to access the health care system in Mexico.
Part IV presents a case study of a medical condition that would likely meet
the “exceptional and extremely unusual hardship” standard and identifies the
general circumstances under which an applicant could meet the hardship
12.
13.
14.
15.
16.
17.
18.
See Aburto-Rocha v. Mukasey, 535 F.3d 500, 504–05 (6th Cir. 2008).
See In re Monreal-Aguinaga, 23 I. & N. Dec. at 62.
See id. at 64–65.
In re Recinas, 23 I. & N. Dec. 467, 470 (BIA 2002).
See In re Monreal-Aguinaga, 23 I. & N. Dec. at 64–65.
See Aburto-Rocha, 535 F.3d at 504–05.
See In re Monreal-Aguinaga, 23 I. & N. Dec. at 64–65.
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requirement.
I.
IMMIGRATION ENFORCEMENT AND REMOVAL PROCEEDINGS
Removal proceedings form part of a notoriously complex system of
immigration procedures that the Department of Homeland Security (DHS)
employs to evaluate charges of immigration law violation, defenses to those
charges, and claims for relief from removal.19 Removal proceedings begin
when DHS, the government agency responsible for enforcement of federal
immigration laws, serves the non-citizen that it suspects of violating immigration law with a “Notice to Appear” at an immigration hearing.20 The hearing
takes place before an immigration judge who determines whether the
non-citizen is subject to removal.21 After the immigration judge’s initial
decision, either party can appeal the decision to the BIA for review. The
review process may continue to the federal Courts of Appeals and, ultimately,
the Supreme Court.22
A. Cancellation of Removal
During removal proceedings, a non-citizen may defend against removal by
denying commission of the alleged violation, arguing that the conduct does
not constitute grounds for removal, or claiming that removal would be
unconstitutional in that particular case.23 If the non-citizen cannot defend
against, or concedes to, the charges, she can still pursue cancellation of
removal.24 Cancellation of removal is one of the few legal options for relief
under which a non-citizen facing removal proceedings can apply for permanent residence in the United States.25
To bring a successful claim for cancellation of removal, an applicant must
have been present in the United States for ten continuous years, have good
moral character, and demonstrate that removal would result in exceptional
and extremely unusual hardship to the applicant’s U.S. citizen or legal
permanent resident spouse, parent, or child.26 Claims for cancellation of
removal are rarely successful due to the stringent statutory requirements an
19. See Ardestani v. INS, 502 U.S. 129, 138 (1991); Michael Kaufman, Note, Detention, Due
Process, and the Right to Counsel in Removal Proceedings, 4 STAN. J. CIV. RIGHTS. & CIV. LIBERTIES,
113, 119 (2008); ELIZABETH HULL, WITHOUT JUSTICE FOR ALL 107 (1985).
20. See 8 U.S.C. § 1229(a) (2008); Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 DUKE L.J. 1635, 1641 (2010).
21. See Legomsky, supra note 20, at 1642.
22. See 8 U.S.C. § 1252(a)(5) (2010); Kaufman, supra note 19, at 120.
23. Kaufman, supra note 19, at 119.
24. 8 U.S.C. § 1229b(b)(1) (2008).
25. See 8 U.S.C. § 1229b(b)(1); Thronson, Choiceless Choices, supra note 9; Margot K.
Mendelson, Note, Constructing America: Mythmaking in U.S. Immigration Courts, 119 YALE L.J.
1012, 1034 (2010).
26. 8 U.S.C. § 1229b (enumerating requirements for cancellation of removal).
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applicant must meet.27 Statutory provisions governing claims for relief from
removal have evolved over time, becoming more restrictive and imposing
more stringent hardship requirements than their predecessors.28 For example,
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) created cancellation of removal to replace a more expansive form
of relief called suspension of deportation, which made relief available not
only to qualifying relatives but also to the deportees themselves.29
B. The “Exceptional and Extremely Unusual Hardship” Requirement
It has become exceedingly difficult to prove that a qualifying relative will
suffer exceptional and extremely unusual hardship upon the applicant’s
removal from the United States.30 Although the law recognizes that anyone
who is deported will suffer hardship, perhaps even exceptional hardship, a
showing that the ensuing hardship would be extreme is no longer sufficient.31
The statutes governing cancellation of removal further require that the harm
be extremely unusual.32 Even applicants who have made strong showings of
the economic, educational, and emotional hardship that their families will
endure upon removal have been unsuccessful in their applications for
cancellation of removal because they could not provide “evidence to establish that [their] qualifying relatives would suffer hardship that is substantially
different from, or beyond, that which would normally be expected from the
deportation of an alien with close family members [in the United States].”33
The hardship standard has become so onerous that there is only one
published BIA decision that grants cancellation of removal based on a finding
that the applicant demonstrated familial circumstances that met the exceptional and extremely unusual hardship requirement.34
In deciding whether an applicant meets the hardship requirement, the
immigration judge considers a variety of factors, such as the number of
relatives the applicant has in his or her home country, the age of the
applicant’s children, whether the children speak English, and whether the
children have good grades.35 If an applicant has a spouse, parent, or child
27. See In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63–65 (BIA 2001) (examining hardship
factors and emphasizing the difference between “extreme” hardship and “exceptional and extremely
unusual” hardship); Margot K. Mendelson, supra note 25.
28. Mendelson, supra note 25, at 1037.
29. See STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 109–10 (2d ed.
1997) (stating that IIRIRA was “one of the most sweeping immigration reform packages ever
enacted”).
30. See In re Monreal-Aguinaga, 23 I. & N. Dec. at 63–65.
31. See Aburto-Rocha v. Mukasey, 535 F.3d 500, 504–05 (6th Cir. 2008); In re MonrealAguinaga, 23 I. & N. Dec. at 62; see also Sullivan v. INS, 772 F.2d 609, 611 (9th Cir. 1985).
32. 8 U.S.C. § 1229b(b)(1)(D).
33. See Aburto-Rocha, 535 F.3d at 504–05; In re Monreal-Aguinaga, 23 I. & N. Dec. at 65.
34. Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1014 (9th Cir. 2005) (Pregerson, J., dissenting)
(citing In re Recinas, 23 I. & N. Dec. 467, 470 (BIA 2002)).
35. See In re Monreal-Aguinaga, 23 I. & N. Dec. at 63–64.
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who is either a U.S. citizen or legal resident, and that individual is in
extremely poor health or suffers from a serious medical condition, the
applicant may meet the hardship requirement. To meet the requirement, the
applicant has to demonstrate that removal would result in the qualifying
relative’s inability to access medical care.36 Although there have been no
published BIA decisions indicating that a particular disease, illness, or other
medical condition meets the hardship requirement, the BIA has indicated,
with appellate court approval, that proof of a qualifying relative’s health
hardship, coupled with an inability to acquire adequate medical care, may
serve to prevent deportation.37
II.
MEXICO-U.S. MIGRATION FLOW AND HEALTH CARE DISTRIBUTION
IN MEXICO
To understand the difficulties that deported Mexican nationals may
encounter in attempting to access Mexico’s health care system following
deportation, it is important to examine the migratory patterns from
Mexico to the United States. Health resource distribution varies widely
36. See id. at 63; see also Aburto-Rocha, 535 F.3d at 504–05.
37. See Aburto-Rocha, 535 F.3d at 504–05; In re Monreal-Aguinaga, 23 I. & N. Dec. at 63.
The BIA first indicated the possibility of considering health hardship arguments in In re
Monreal-Aguinaga. The applicant in In re Monreal-Aguinaga was a 34-year-old native citizen of
Mexico who had been living in the United States for twenty years. 23 I. & N. Dec. at 57. He had
entered the country at the age of fourteen and now lived with his two children, ages 12 and 8. Id.
Although the applicant satisfied the good moral character and continuous physical presence
requirements for cancellation of removal, his application was denied because he could not satisfy the
hardship requirement. Id. at 57, 65. The BIA held that the requisite hardship “must be ‘substantially’
beyond the ordinary hardship that would be expected when a close family member leaves this
country.” Id.at 62. The BIA further explained that, although the hardship need not be “unconscionable,” the effect of its standard was to limit cancellation of removal to “‘truly exceptional’
situations[.]” Id. The BIA then set forth a number of factors to consider in determining whether an
“exceptional and extremely unusual hardship” is present, including “the ages, health, and circumstances” of the qualifying relatives. Id.at 63. By way of example, the BIA noted that “a qualifying
child with very serious health issues, or compelling special needs at school” would present a strong
case for cancellation of removal. Id. (emphasis added). The BIA concluded that because the
applicant’s children were in good health, and he was able to provide for them, the hardships they
would face did not meet the “exceptional and extremely unusual hardship” standard. See id. at 64–65.
Consideration of such health hardship factors was affirmed by the Sixth Circuit Court of Appeals in
Aburto-Rocha v. Mukasey, 535 F.3d 500 (6th Cir. 2008). In Aburto-Rocha, the court reviewed an
applicant’s petition for cancellation of removal under the standard set forth by In re MonrealAguinaga, 23 I. & N. Dec. at 63. Aburto-Rocha, 535 F.3d at 503–04. The applicant argues that his
children would suffer “emotional hardship,” “difficulty adjusting to life in Mexico,” and “reduced
educational and economic opportunities” if they were forced to return to Mexico. Id. at 504. He also
identified difficulties relating to his eldest daughter’s health problems. Id. at 504–05. Ultimately, the
court held that the BIA was reasonable in determining that the difficulties imposed on his children by
the removal were not “substantially beyond that which ordinarily would be expected to result from
the . . . removal.” Id. at 504. The court emphasized that the difficulty stemming from his eldest
daughter’s health problems (not identified in the case) “was not enough to tip the balance” to meet the
hardship requirement because the applicant did not demonstrate that “adequate medical treatment
and monitoring” would be unavailable if she returned to Mexico with him. Id. at 504–05 (emphasis
added).
2010]
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across Mexico;38 determining which states and municipalities most
Mexican immigrants originate from, and to which they will most likely
return, provides a more precise indication of the health care resources that
will be available to them.
A. Trends in Migration Flow from Mexico to the United States
The Mexican government has compiled a set of data that provides a
national picture of the regions and states from which most Mexican immigrants to the United States emigrate.39
The “migration intensity index” identifies the key factors influencing
migration to the United States from within particular Mexican states.40 These
factors include state poverty rates and the existence of individual social
networks on both sides of the border.41 Based on these data estimates and
their overall population size, the Mexican states of Guanajuato, Jalisco,
Zacatecas, Michoacán, and Durango have the highest number of households
receiving remittances from the U.S.42 As indicated in Table 1, these states
also have the highest degree of migratory intensity, which is even more
pronounced at the municipal level.43
Currently, no reliable data exists that identifies which Mexican states have
the highest number of immigrants that have returned from the United States
38. Nuria Homedes & Antonio Ugalde, Twenty-Five Years of Convoluted Health Reforms in
Mexico, 6 PLOS MED. 1, 4 (2009) [hereinafter Convoluted Health Reforms], http://www.plosmedicine.
org/home.action (follow “browse articles” hyperlink; then search for “Homedes and Ugalde”; then
follow “Twenty-Five Years of Convoluted Health Reforms in Mexico” hyperlink).
39. CONSEJO NACIONAL DE POBLACION [National Population Council], INDICES DE INTENSIDAD
MIGRATORIA MEXICO-ESTADOS UNIDOS [Mexico-United States Migration Intensity Index] (2000),
http://www.conapo.gob.mx (search for “Indices de intesidad”; then follow “Indices de intesidad
migratoria Mexico-Estados” hyperlink).
40. The index is derived from the following data: (1) the percentage of Mexican households
receiving remittances from individuals who live in the United States; and (2) the percentage of
households reporting having a family member living in the United States during the last five years.
See CONSEJO NACIONAL DE POBLACION [National Population Council], METODOLOGIA DEL INDICE DE
INTENSIDAD MIGRATORIA MEXICO-ESTADOS UNIDOS [Methodology of the Mexico-United States
Migration Intensity Index] 184 (2000), http://www.conapo.gob.mx/publicaciones/migracion/
intensidadmig/anexoC.pdf. This latter estimate of US residency is based on individuals who fall
within three categories of migrant status in the US: (1) permanent residents, (2) circular migrants, and
(3) returning Mexican migrants. See id.
41. See CONSEJO NACIONAL DE POBLACION [National Population Council], LA MIGRACION
MEXICO-ESTADOS UNIDOS [Mexico-United States Migration] 12 (2000) [hereinafter LA MIGRACION],
http://www.conapo.gob.mx/publicaciones/migracion/intensidadmig/cap01.pdf.
42. CONSEJO NACIONAL DE POBLACION [National Population Council], RESULTADOS PRINCIPALES
DEL INDICE DE INTENSIDAD MIGRATORIA MÉXICO-ESTADOS UNIDOS A NIVEL NACIONAL [Principal
Results of the Mexico-United States Migration Intensity Index At the National Level] 57 (2000)
[hereinafter R ESULTADOS P RINCIPALES ], http://www.conapo.gob.mx/publicaciones/migracion/
intensidadmig/anexoA.pdf. The index is weighted by the number of households in each state.
43. See id.
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TABLE 1. MEXICAN STATES & MUNICIPALITIES WITH HIGHEST MIGRATION
INTENSITY INDEX44
% That
Receive
Transfers
Index of
Migratory
Intensity
331,242
9.70
1.09000
Mezquital
6200
20.92
2.98019
Pánuco De
Coronado
2980
22.15
2.65941
Indé
1498
37.05
2.61997
Guanajuato
990,602
9.20
1.36569
Ocampo
4131
31.13
2.98139
Santiago
Maravatı́o
1642
27.41
3.65997
Huanı́maro
3880
30.98
4.33024
1,457,326
7.70
0.88785
Villa Corona
3867
18.77
2.50180
Valle De Juárez
1530
33.33
2.57078
Quitupan
2792
28.58
2.58878
Michoacan
893,671
11.37
2.05950
Zináparo
1060
23.11
3.05009
Ecuandureo
3569
32.08
3.05919
Morelos
2472
35.64
4.47224
306,882
13.03
2.58352
563
34.99
3.45557
Apozol
1838
19.15
3.66330
General Francisco
R. Murguı́a
5463
47.72
3.85892
Total of
Households
Durango
Jalisco
Zacatecas
Plateado De
Joaquı́n Amaro, El
due to forced repatriation or judicial removal proceedings.45 However, the
migration intensity index can serve as a proxy for identifying states with the
44. See id. This table is a modified version of the table appearing in the original source.
45. The only data available is from EMIF. EMIF is an annual sample survey of migration flows
along Mexico’s northern border region conducted by the ministries of Foreign Affairs (SRE) and
Labor and Social Affairs (STPS), the National Migration Institute (INM), the National Population
Council (CONAPO), and the University of the Northern Border (COLEF) in Tijuana. The EMIF data
is based on Mexican nationals captured along the border and returned to Mexico. Their return is not a
result of the formal deportation process.
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101
largest numbers of repatriated immigrants. This is because it is an indicator of
Mexican states that have the greatest immigrant flow to the United States and
most likely have the largest communities of mixed status families within the
U.S. The states with the highest levels of migration are: Michoacán, Guanajuato, Jalisco, Zacatecas, and Durango.46 Accordingly, these are the states to
which removed migrants are most likely to return.47 Therefore, our analysis
of health care services focuses on these five Mexican states, given that these
states represent the geographic location to which repatriated family members
will most likely return in the event that an immediate family member is
removed from the U.S.
B. Adverse Conditions Affecting Access to Health Care in Mexico’s
High-Migration Areas
Although identifying the regional or state-specific trends in U.S.-Mexico
migration flows provides a solid basis for examining the availability of health
resources to repatriated nationals, identifying the characteristics of particular
municipalities experiencing high volumes of migration is critical to appreciate regional variability and barriers to accessing health care in Mexico.48
Examples of barriers to quality health care include the availability of potable
water, the ability to access the health infrastructure, and the overall employment conditions in the area. Narrowing the data to focus on the towns and
municipalities within the states experiencing the highest rate of Mexico-U.S.
emigration presents the most accurate representation of the social, demographic, and regional conditions that immigrants returning to these high
migration communities will face following removal from the United States.
Table 2 lists a number of environmental factors contributing to an
individual’s risk for morbidity and mortality resulting from an illness or
disease. Municipalities without adequate sewage or potable water will create
greater environmental risks of infection and will adversely impact the
experience of vulnerable patients. Overall social and demographic characteristics, such as the level of education within a community and employment
opportunities, will constrain health-related choices and access to health care
in Mexico. As described in Table 2, poverty and limited employment
46. This determination was made by multiplying the Migration Intensity Index for the state by the
total number of households in that state. See RESULTADOS PRINCIPALES, supra note 42, at 57.
47. This assumes that migrants return to the state from which they immigrated.
48. See Nuria Homedes & Antonio Ugalde, Why Neoliberal Health Reforms Have Failed in Latin
America, 71 HEALTH POL’Y 83, 87 (2005); Miguel Gonzalez-Block, Rene Leyva, Oscar Zapata,
Ricardo Loewe, & Javier Alagon, Health Services Decentralization in Mexico: Formulation,
Implementation, and Results of Policy, 4 HEALTH POL’Y & PLAN. 301, 1 (1989), available at
http://heapol.oxfordjournals.org/cgi/reprint/4/4/301.pdf.
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TABLE 2. SOCIODEMOGRAPHIC AND PUBLIC HEALTH INFRASTRUCTURE FOR
MUNICIPALITIES WITH HIGH MIGRATION INTENSITY INDICES (2005)49
Municipality
National
%
%
%
%
%
%
Occupants Population
Population Occupants Occupants Occupants
Living Employed
⬎15
Living
Living
Living
in
with Less
%
Years
in
in
in
Houses
Than
Illiteracy Without
Houses
Houses
Houses
%
with
Twice the
⬎15 Elementary Without Without Without Overcrowded
Dirt
Minimum
Years
School
Sewage Electricity Water
Houses
Floors
Wage
8.37
23.10
5.34
2.49
10.14
40.64
11.48
45.30
5.13
41.71
15.49
2.04
2.16
31.10
5.96
74.57
Mezquital
32.84
56.72
45.84
59.32
73.47
69.44
56.62
66.38
Pánuco De
Coronado
5.65
34.81
17.37
0.66
4.62
33.56
7.40
60.06
Huanı́maro
10.92
39.81
10.15
0.79
0.73
45.67
4.89
68.90
Ocampo
15.83
48.55
28.49
4.77
9.11
48.48
11.29
64.51
Santiago
Maravatı́o
18.14
47.31
6.84
0.60
0.06
36.54
5.15
57.11
19.43
52.87
21.34
3.21
30.89
30.87
15.12
53.46
Durango
Indé
Guanajauto
Jalisco
Quitupan
Valle De Juárez 13.90
40.54
7.07
3.35
4.27
28.54
5.68
38.38
Villa Corona
8.94
34.38
1.32
0.65
0.64
34.24
5.15
46.58
14.77
50.90
4.42
0.28
0.82
26.29
4.52
64.17
Michoacan
Ecuandureo
Morelos
14.06
46.02
9.31
0.47
2.03
39.10
10.93
76.31
Zináparo
14.29
46.98
6.86
1.53
3.59
28.10
3.34
70.94
Apozol
9.55
43.35
3.87
1.20
8.34
35.72
6.29
64.59
General
Francisco
R. Murguı́a
8.58
41.57
17.31
1.50
14.28
41.95
6.56
65.21
Plateado De
Joaquı́n
Amaro, El
14.50
61.28
19.60
5.55
8.30
27.50
8.66
72.48
Zacatecas
opportunities are prevalent characteristics in many of the municipalities with
high migration intensity.50
49. Data extracted from CONAPO Indices de Marginacion 2005. See CONSEJO NACIONAL DE
POBLACION [National Population Council], INDICES DE MARGINACION 2005 [Marginalization Index]
(2005), http://www.conapo.gob.mx/publicaciones/margina2005/AnexoB.xls.
50. See Mariana Barraza-Lloréns, Stefano Bertozzi, Eduardo González-Pier & Juan Pablo
Gutiérrez, Addressing Inequity in Health and Health Care in Mexico: Mexico’s Health Care System
Shares the Problems of Incrementalism with its Neighbor to the North, 21 HEALTH AFFAIRS 47, 47
(2002), [hereinafter Addressing Inequity in Health and Health Care in Mexico], available at
http://www.nmsu.edu/bec/BEC/Readings/1.Barraza-InequityInHealthInMexico.pdf.
2010]
HEALTH HARDSHIP
103
Considering that the major rationale for Mexican migration to the U.S. is
economic, families facing removal likely face short- to long-term unemployment, underemployment, and limited occupational opportunities once they
return to Mexico and settle in their communities of origin.51 Short periods of
unemployment are typical after a transition back to Mexico, but particular
conditions during removal lead to increased periods of unemployment for
families returning from the U.S.52 First, as indicated in Table 2, the poor
labor market conditions of the destination communities directly translate into
low rates of employment and real wages. Second, structural differences in the
destination community’s employment practices as compared to their current
U.S. employment environment might result in a decrease of transferable
skills.53 Skills acquired in the U.S. might not be of use in many rural
communities of Mexico given the limited opportunities for specialized
employment.54 Third, navigating the job market in Mexico becomes increasingly difficult following the loss of professional social networks because
social networks and connections are critical in obtaining employment in
Mexico.55 The net adjustment effect for mixed-status families once they
return to Mexico is directly influenced by this already difficult shift from the
U.S. labor market to the local Mexican labor market. Without secure
employment and income, mixed-status families returning to Mexico will lack
the necessary resources to provide health care access for the member of the
family facing serious illness.56
In addition to the strong likelihood of limited available resources for those
returning to Mexico, many of the families that are subject to removal
proceedings must enter a structurally inefficient and inequitable health care
system. As discussed in the next section, the costs of private health care in
Mexico, the distribution of human and material resources, and the specific
design of its health care system limit access to proper health care for families
relocated to Mexico and jeopardize the chances of recovery for members
experiencing serious health conditions.57 As a result of these structural
51. Cf. Rafael Alarcón, Rodolfo Cruz, Alejandro Dı́az-Bautista, Gabriel González-König, Antonio Izquierdo, Guillermo Yrizar & René Zenteno, La Crisis Financiera en Estados Unidos y Su
Impacto en la Migración Mexicana [The American Financial Crisis in the United States and Its
Impact on Mexican Migration], 5 MIGRACIONES INTERNACIONALES 193, 206 (2009), available at
http://www2.colef.mx/migracionesinternacionales/revistas/MI16/n16-193-210.pdf.
52. Yésica Aznar Molina, Identidades de Retorno: La Experiencia Migratoria y Su Integración
en el Lugar de Retorno [Identity of Return: The Migratory Experience and Integration in the Place of
Return]. Preparado para presentar en el Congreso 2009 de la Asociación de Estudios Latinoamericanos, Rı́o de Janeiro, Brasil, del 11 al 14 de Junio de 2009, available at http://lasa.international.pitt.edu/
members/congress-papers/lasa2009/files/AznarYesica.pdf.
53. See id.
54. See id.
55. Caridad Araujo, Alain de Janvry & Elisabeth Sadoulet, Peer Effects in Employment: Results from
Mexico’s Poor Rural Communities 4 (2004), http://are.berkeley.edu/sadoulet/papers/Caridad.pdf.
56. See Asa Cristina Laurell, Health System Reform in Mexico: A Critical Review, 37 INT.
J. HEALTH SERV. 515, 518 (2007).
57. See id.
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conditions in Mexico, a sudden change in the provision of health care for a
family member at risk for serious health conditions could translate into rapid
escalation of symptoms and, potentially, death.58 The incomplete funding of
the national health care system creates a substantial risk for individuals in
Mexico who require highly specialized medical care.59
III.
THE HEALTH CARE DELIVERY SYSTEM IN MEXICO
The current health care system in Mexico is the product of several reforms
that have taken place in the last six decades.60 The first attempt to install
public provisions directed to the health of the Mexican population occurred
in 1943 with the creation of the Ministry of Health (Secretaria de Salud),
which developed disjointed public health programs for the general Mexican
population.61 During this same period of time, the Mexican Institute of Social
Security62 (Instituto Mexicano de Seguro Social or IMSS) was established,
which set into motion an important model that included financing and
delivery of health care services to highly skilled private sector employees.
IMSS was created as a response to the rapid period of Mexican industrialization, when the need for health care was politically identified as a viable
popular need.63 By 1960, specialized health financing and service delivery
systems, such as the State’s Employees Social Security and Social Services
Institute (Instituto de Servicio y Seguro Social para los Trabajadores del
Estado or ISSSTE),64 were developed to meet the health care needs of
Mexico’s public sector employees. Other important health care systems
developed during and after this period targeted specific groups, such as the
PEMEX hospitals for workers in the nationalized Mexican oil industry and
SEDENA hospitals for individuals in the Mexican military system. Finally,
throughout this reform period, maintenance of a private market of independent health care providers was critical to maintaining the quality of care,
particularly for those patients requiring care from health care specialists.65
By 1970, overcrowding and lack of access to health care for the poor and
underserved within this patchwork of government, employer-employee, and
private systems led to the implementation of several reforms aimed at
providing coverage for the marginal populations and the growing industrial
58. See id.
59. See id. at 519.
60. Julio Frenk, Jaime Sepúlveda, Octavio Gómez-Dantés, & Felicia Knaul, Evidence-based
Health Policy: Three Generations of Reform in Mexico, 362 THE LANCET 1667, 1667 (2003)
[hereinafter Three Generations of Reform in Mexico].
61. See Addressing Inequity in Health and Health Care in Mexico, supra note 50, at 48.
62. See Three Generations of Reform in Mexico, supra note 60, at 362.
63. See Ricardo Pozas Horcasitas, El Desarrollo de la Seguridad Social en Mexico, 54 REVISTA
MEXICANA DE SOCIOLOGı́A 27, 37 (1992), available at http://www.jstor.org/stable/3540936 (discussing the founding of IMSS).
64. See id. at 54.
65. See Addressing Inequity in Health and Health Care in Mexico, supra note 50, at 51.
2010]
HEALTH HARDSHIP
105
sector.66 Challenged by the growing population, the government implemented the IMSS-COPLAMAR, later IMSS-Solidaridad, assistance programs during the late 1970s to cover poorer populations.67 These systemwide reforms resulted in the following important legal and structural changes
to the health care system within Mexico: (1) the recognition in 1984 of a
constitutional right to health for all individuals residing in Mexico, (2) the
implementation of the IMSS-Solidaridad assistance program in 1989, and (3)
a decentralization process that transferred decision-making power to the
states in the early 1990’s.68 By 2001, there was federal political momentum
to establish a more comprehensive framework for a universal health care
access system based on social insurance, leading to the creation of the
promising, yet troubled, Seguro Popular.69 Seguro Popular is a voluntary
family health insurance program for the uninsured.70
A. The Current Mexican Health Care System
Despite years of reforms, complete access to health care in Mexico is still a
complex and incomplete task. The primary challenge to access to health care
in Mexico is the disjointed arrangement of providers and insurers.71 Individuals can access the health care system via three different channels that at times
overlap and compete with each other.72 The first channel is comprised of the
assistance services run by the Secretaria de Salud (“Ministry of the Health”)
at both the federal and state levels. The system works with limited federal
funding to address broad public health issues and deliver care to uninsured,
marginalized populations, including those residing in rural communities,
workers in the informal labor market and their families, and self-employed
individuals. In general, there is too little funding to accomplish this broad
mission, resulting in limited primary care services available to the poorest
segment of the Mexican population and a greater focus on larger public
health issues such as preventative care, immunization, and sanitation.73 The
second channel is a private system run by independent medical professionals
66. See Three Generations of Reform in Mexico, supra note 60, at 1668.
67. Miguel Gonzalez-Block, Rene Leyva, Oscar Zap Ata, Ricardo Loewe & Javier Alagon,
Health Services Decentralization in Mexico: Formulation, Implementation and Results of Policy, 4
HEALTH POL’Y AND PLAN. 301, 302 (1989), available at http://heapol.oxfordjournals.org/cgi/content/
short/4/4/301.
68. See Three Generations of Reform in Mexico, supra note 60, at 1668.
69. See Convoluted Health Reforms, supra note 38, at 4–5.
70. See id. at 4.
71. Sara Ross, Jose Pagan & Daniel Polsky, Access to Health Care for Migrants Returning to
Mexico, 17 J. HEALTH CARE FOR THE POOR AND UNDERSERVED 374, 375 (2006), available at
http://muse.jhu.edu/journals/journal_of_health_care_for_the_poor_and_underserved/v017/17.
2ross.pdf.
72. See Addressing Inequity in Health and Health Care in Mexico, supra note 50, at 49–50.
73. See id.
106
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that is often criticized for its lack of regulation.74 This system covers three to
four percent of the population through private insurance for these services;75
however, due to the perception that private sector health care services are
generally of higher quality, over thirty percent of the Mexican population
receives health care services from private providers in Mexico.76 The system
is very expensive and requires out-of-pocket payment for up to ninety-six
percent of medical expenses.77
The third and largest component of the Mexican health care system is the
social security system. The social security system is composed of the IMSS,
ISSSTE, and smaller organizations such as PEMEX (which insures the oil
industry), SEDENA (Army), and SECMAR (Navy). The social security
system offers health care to the employed sector of the population and covers
approximately forty-seven percent of the population.78 The IMSS is financed
by the federal government, employers’ contributions, and employees’ taxes.
Its coverage includes workers employed in the private sector and their
families, which comprises forty percent of the population.79 The rest of the
social security system provides care for workers employed in the public
sector, which comprises seven percent of the population.80 The services
offered by the social security system are provided through specific public
hospitals and clinics. Salaries for medical personnel are paid by the IMSS
medical institutions, and the beneficiaries, once enrolled, pay no out-ofpocket expenses.
The fourth major component of medical coverage, available to those not
covered by IMSS, ISSSTE, or the industry-specific plans, is the recently
created Seguro Popular (SP). SP is a voluntary family health insurance
program that seeks to provide universal access to health care.81 The system is
funded by contributions from the federal government, the states, and the
enrolled families who pay their premiums based on a sliding-fee scale.82
Family fees are waived for the two lowest income deciles.83 The state health
systems are responsible for the service, but unlike IMSS and ISSSTE, SP
lacks the capacity to provide certain health procedures and has to operate its
74. See Julio Frenk et al., Reforma Integral para Mejorar el Desempeño del Sistema de Salud en
México [Integral Reform to Improve the Performance of the Health System in Mexico], 49 SALUD
PÚBLICA MEX. 23, 24 (2007) [hereinafter Reforma Integral], available at http://cat.inist.fr/
?aModele⫽afficheN&cpsidt⫽18689485.
75. See id. at 25.
76. See Beatriz Zurita & Teresita Ramirez, Desempeno del Sector Privado de la Salud en Mexico
[Performance of the Private Health Sector in Mexico], CALEIDOSCOPIO DE LA SALUD 153 (2003),
http://correo.uan.edu.mx/indalex/Admon/19-Documento_Medicina_privada.pdf.
77. See id.
78. See Reforma Integral, supra note 74, at 25.
79. See Eleanor D. Kinnney, Realization of the International Human Right to Health in an
Economically Integrated North America, 37 J.L. MED. & ETHICS 807, 810 (2009).
80. See id.
81. See Convoluted Health Reforms, supra note 38, at 4.
82. See Reforma Integral, supra note 74, at 30.
83. See id.
2010]
HEALTH HARDSHIP
107
services through contracted private providers.84 SP is by design the most
used health care insurance option that is freely and immediately accessible to
the poor and the otherwise uninsured.85
Unemployment and high costs of private insurance make SP the most
accessible health service option for families who return to Mexico in need of
specialized medical care. Beneficiaries of SP are entitled to a set of services
that includes preventative health services, surgical services, rehabilitation,
emergency treatment, pharmaceuticals and laboratory tests.86 Currently, the
SP health benefits package covers medical costs for 266 types of medical
services; medical treatment for eighteen catastrophic illnesses, including
cancer and HIV; and 312 different types of pharmaceutical drugs.87 SP offers
six general types of medical intervention: public health, medical consultations, orthodontia, emergency services, hospitalization, and general surgery.88 SP also offers coverage from two additional pools of federal funds to
cover catastrophic medical expenses and medical costs for all children: (1)
the Fund for the Protection Against Catastrophic Expenditures (Fondo de
Proteccion Contra Gastos Catastroficos or FPGC) and (2) Medical Interventions Covered by the Health Insurance Program for a New Generation
(Intervenciones Medicas Cubiertas por el Programa Seguro Medico Para Una
Nueva Generacion or SMNG).89 The FPGC, for example, provides supplemental funding for a limited number of high-cost interventions covered by
SP and theoretically provides financial protection for uninsured families that
face catastrophic out-of-pocket health care costs.90 Although SP has extended primary care coverage to millions of Mexicans since its inception in
2003, resource constraints in Mexico have limited coverage of high-cost
interventions, which are still not covered by this insurance system.91
SP services have been subject to a variety of independent and government
evaluations. Most of the early reports produced about the program were
published by officials involved in its creation and implementation.92 Conclusions from these earlier evaluations highlighted the details of the SP program
84.
85.
86.
See Convoluted Health Reforms, supra note 38, at 4.
See id.
SECRETARIA DE SALUD, SEGURO POPULAR [Ministry of Health, Popular Health Insurance],
CATALOGO UNIVERSAL DE SERVICIOS DE SALUD, CAUSES [Universal Catalogue of Health Care
Services, CAUSES] (2008) [hereinafter CAUSES], available at http://www.seguro-popular.gob.mx/
images/contenidos/Normateca/Spss/causes_2009.pdf.
87. See Convoluted Health Reforms, supra note 38, at 5.
88. See CAUSES, supra note 86, at 6–7. The Catalogue of Universal Health Services (Catalogo
Universal de Servicios de Salud or CAUSES) lists all the medical procedures—both preventative and
high-cost interventions—and medications that are authorized in the health benefits package for SP
recipients.
89. See id. at 7–8.
90. See id.
91. See Convoluted Health Reforms, supra note 38, at 6.
92. See, e.g., Felicia M. Knaul, Julio Frenk, & Richard Horton, La Reforma del Sistema de Salud
Mexicano, 49 S ALUD P UBLICA M EX . 1 (2007), available at http://www.scielosp.org/
scielo.php?pid⫽S0036-36342007000700001&script⫽sci_arttext.
108
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design and the initial health results attributed to increased health care access
to uninsured patients through this program.93 More recent evaluations
challenge earlier findings based on concerns about the underlying financial
sustainability of the program and its longer-term impact on health care
resource distribution.94 Critics of the SP program point to the risks associated
with the financial insolvency resulting from insufficient contributions from
its beneficiaries and the states.95 The current financial instability of SP has
created serious constraints and delayed the full implementation of the
services for children with catastrophic illnesses.96
As previously stated, successfully funding SP requires that the federal
government, the states, and the beneficiary families contribute to the system.
The families are expected to contribute according to a ranking system that
requires higher contributions from families with higher incomes, and that can
represent up to fifteen percent of the minimum individual wage per family
member. However, according to different estimations, current beneficiary
contributions are practically nonexistent.97 Ninety-seven percent of the
families enrolled in SP are classified as poor and are therefore not required to
pay into it.98
Given SP’s limited funding, there have been severe constraints on the
program which directly impact access and quality of medical services.99 The
complexity of funding SP in the short run, and in the long run, will continue
to make it difficult for Mexico’s most vulnerable population to receive
existing and proposed medical services under this new system. The issue of
funding SP is even more problematic because, unlike under IMSS and the
other government-partnered programs, each Mexican state is required to
match half of what is provided by the Federal government. Each state that
participates in SP is required to sign a contract agreeing to contribute funding
to help pay for health services.100 However, soon after the program started,
states were reluctant or unable to cover these expenses.101 In response to the
93. See id. at 3.
94. See Laurell, supra note 56, at 526.
95. See id. at 522.
96. See Jason Lakin, Mexico’s Health System: More Comprehensive Reform Needed, 6 PLOS
MED. 1, 2 (2009), http://www.plosmedicine.org/article/info%3Adoi%2F10.1371%2Fjournal.pmed.
1000130.
97. See id.
98. JOHN SCOTT, WORLD BANK, SEGURO POPULAR INCIDENCE ANALYSIS 150-51 (2006), available
at http://siteresources.worldbank.org/INTMEXICOINSPANISH/Resources/VolIIChapter3.pdf. Studies indicate only forty percent of the beneficiaries are actually unable to contribute. Although the
sophisticated income survey used to define poverty levels for the Oportunidades program was
initially intended to be used for SP, administrators were more concerned about expanding SP, and
therefore discarded the instrument for a more flexible survey that reclassified the beneficiaries. See
Jason Lakin, The End of Insurance? Mexico’s Seguro Popular, 2001–2007, 35 JOURNAL OF HEALTH
POL., POL’Y & L. 313, 333 (2010) [hereinafter The End of Insurance], available at http://
www.internationalbudget.org/pdf/JHPPL2010.pdf.
99. See Laurell, supra note 56, at 523.
100. See The End of Insurance, supra note 98, at 326.
101. See id.
2010]
HEALTH HARDSHIP
109
states’ failure to provide funding, the federal government initiated one-to-one
negotiations with states to reduce the required state contribution.102 The
federal government decided to allow states to credit the investments they had
made into the health care infrastructure in the five years prior to entering the
program to satisfy part, or all, of the required fees.103 In 2007, states credited
eighty-eight percent of their due fees.104 Under the contribution arrangements, the states should have paid 953 million dollars to the program, or
$130.40 per affiliated family in 2007.105 The states fell short of their required
contribution by over 858 million dollars.106 The impact of this shortfall is
reflected in the services and benefits that are not available to the population.107 A series of studies based on direct observations and interviews of
administrative officials concluded that many clinics and hospitals in the
program fell short of being able to offer all of the services originally
guaranteed.108 Although SP coverage is extensive on paper, enrollment in the
SP program does not guarantee access to medical specialists or guarantee
quality of health care.109
B. Accessing Health Care in Mexico’s High-Migration Areas
Reduced access to health care services is of special concern in highmigration areas. States experiencing high rates of migration, such as Zacatecas, Michoacan, and Durango, are composed mainly of remote rural areas
where access to health care is severely undermined by the socioeconomic
characteristics of the regions and their geographic isolation. In the communities with high migration rates, such as Zacatecas, at least seventy-two percent
of the population lives at an income level that is equivalent to less than two
minimum-wage salaries, which based on 2010 estimates is equivalent to
54.87 pesos per day, or 4.60 U.S. dollars per day.110 In Michoacan, which as
indicated in Table 2 experiences high levels of migration intensity in select
towns, over fifty-one percent of the population has no elementary school
education and over thirteen percent of the population is illiterate. In Mezquital,
one of the highest migration communities in Durango, over sixty-eight
percent of the population lives in houses without potable water. These
socioeconomic and public health realities reflect how conditions at the local
102. See id. at 327.
103. See id.
104. See id.
105. See id. at 328.
106. See id.
107. See Laurell, supra note 56, at 524.
108. See The End of Insurance, supra note 98, at 343.
109. See Laurell, supra note 56, at 524–527.
110. COMISION NACIONAL DE SALARIOS MINIMOS [National Minimum Wage Commission], TABLA
DE SALARIOS MINIMOS POR AREA GEOGRAFICA [Minimum Wage per Geographic Area Table] (2010),
[hereinafter Minimum Wage Table], http://www.conasami.gob.mx/pdf/tabla_salarios_minimos/2010/
01_01_2010.pdf.
110
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level, such as employment, income opportunities, and public health infrastructure for returning Mexican mixed-status families, impact access to quality
health care and the overall health status of medically at-risk patients.
Another important consideration for returning Mexican immigrants is that
many of these communities are geographically isolated from the mainly
urban and highly centralized health care resources in Mexico. Given the
severe resource constraints, specialized medical care is largely concentrated
in urban state capitals.111 This urban concentration significantly decreases the
opportunities for poor populations that require specialized medical treatment.
Their inability to pay the travel costs associated with seeking health care
services in urban centers further compounds this problem for rural returning
immigrants. Without easy access to and availability of continuous and timely
medical care, returning immigrants suffering from either chronic or lifethreatening diseases, such as cancer, will increase their risk of permanent
disability or death.112
IV.
MEDICAL HARDSHIP: A CASE STUDY
Given the educational attainment levels, employment opportunities, and
lack of experience in the formal Mexican labor market, most family members
of returning individuals would be unable to find work in a sector that
provides adequate health care. The returning families would, at least in the
short term, most likely fall within the two categories at risk of suffering
adverse health outcomes because of their economic position or geographic
location: (1) the uninsured or underinsured who are indigent or not within the
formal labor market; and (2) those with long-term disabilities or lifethreatening illnesses that live within towns or rural areas where there is
limited access to appropriate medical care. These groups would be within the
most vulnerable groups in Mexico with respect to access to medical treatment if they return to Mexico. Families in these groups have to make use of
the limited resources of SP and an underdeveloped and underfinanced health
care system. In contrast, if allowed to stay in the United States, they would
have access to the higher quality health care service available in the U.S. and
receive the medical treatment that they require.113
111.
112.
See Addressing Inequity In Health and Health Care In Mexico, supra note 50, at 49.
Gaurav Agarwal et al., Breast Cancer Care in Developing Countries, 33 WORLD J. OF
SURGERY 2069, 2072 (2009), available at http://www.springerlink.com/content/270335351155674l/
fulltext.pdf.
113. In the United States, citizen children and legal residents qualify for all need based health
care programs such as Medicaid and the State Child Health Insurance Program. ADELA DE LA TORRE,
ANTONIO ESTRADA, MEXICAN AMERICANS AND HEALTH: ¡SANA! ¡SANA! 80 (University of Arizona
Press 2001). In addition, the health care delivery system within the United States is not constrained by
the public health infrastructure limitations such as the lack of potable water and inadequate roads in
most rural communities. See World Health Organization, United States of America: Health Profile,
http://www.who.int/gho/countries/usa.pdf; World Health Organization, Mexico: Health Profile, http://
www.who.int/gho/countries/mes.pdf. For remote locations in the United States, telemedicine is
2010]
HEALTH HARDSHIP
111
Families covered under SP are limited by the scope of the program and the
distribution of resources in Mexico. One specific health condition, breast
cancer, provides an excellent case study of a health condition that may not be
adequately treated if the only available system for care is through SP for a
returning mixed-status family member. This is due to the problems outlined
earlier as well as limitations posed by coverage under SP.
Although the mortality rate due to breast cancer is higher for richer
countries, breast cancer is the second leading cause of death for women ages
34–50 in Mexico.114 Despite decreasing mortality rates for women with
breast cancer in countries like the United States, the reverse trend is true in
developing countries such as Mexico. For most countries in Latin America,
the five-year relative survival rate is around sixty-one percent115 as compared
to an 84–90 percent survival rate for breast cancer in the United States.
Increasing mortality rates due to breast cancer correspond in part to the
inefficient regional distribution of scarce specialized health care resources
under the current health care system in Mexico. But as suggested by our
earlier analysis, those who are uninsured or underinsured are clearly more
vulnerable to adverse health outcomes.116
Breast cancer patients returning to Mexico would receive treatment in the
units covered by the SP through the FGCP catastrophic illness funding. These
units include the State Centers for Cancer (Centros Estatales de Cancer or
CEC), federal hospitals with oncology services, and the National Institute of
Cancer.117 However, the resources in these centers are limited. Besides three
federal hospitals specializing in cancer treatment in Mexico City, only
twenty-three state cancer centers provide specialized treatment for breast
cancer through SP, leaving eight Mexican states without state cancer cen-
available for a wide range of specialty care such as dermatology and psychiatry. Douglas A. Perednia
& Ace Allen, Telemedicine Technology and Clinical Applications, JAMA 1995, http://jama.amaassn.org/cgi/reprint/273/6/483. Other indicators of superior quality of care include the higher number
of per capita specialists available in the U.S., as compared to Mexico, as well as the overall lower
mortality and morbidity indices, as related to life-threatening diseases such as heart disease and
cancer. World Health Organization, Country Profiles, http://www.who.int/gho/countries/en/.
114. Felicia Marie Knaul, Gustavo Nigenda, Rafael Lozano, Héctor, Arreola-Ornelas, Ana
Langer & Julio Frenk, Cáncer de Mama en México: Una Prioridad Apremiante, 51 SALUD PUBLICA
MEX. 335, 335 (2009), available at http://www.scielosp.org/pdf/spm/v51s2/v51s2a26.pdf.
115. Max Parkin, Paola Pisani, J. Ferlay & Freddie Bray, Global Cancer Statistics, 49 CA.
CANCER J. CLIN. 33, 38 (1999), available at http://caonline.amcancersoc.org/cgi/reprint/49/1/33.
Studies report survival rates between 59% and 72% in Mexico. A study in Mexico city reported a 59%
5-year survival rate in women admitted between 1990–1999. A second study in Guadalajara, Jalisco
in Mexico reports a 72% 5-year survival rate with follow-up until 2009. Nils Wilking & Frida
Kasteng, A Review of Breast Cancer Care and Outcomes in 18 countries in Europe, Asian and
LatinAmerica 53 (2009), http://fecma.vinagrero.es/noticias/Review%20BC%20care%20_and_
outcomes_26Oct2009.pdf.
116. See Breast Cancer in Developing Countries, supra note 112, at 2072.
117. Alejandro Mohar, Enrique Bargalló, Ma. Teresa Ramı́rez, Fernando Lara & Arturo BeltránOrtega, Recursos Disponibles para el Tratamiento del Cáncer de Mama en México [Resources
Available for the Treatment of Breast Cancer in Mexico], 51 SALUD PUBLICA MEX. 263, 264 (2009),
available at http://www.scielosp.org/pdf/spm/v51s2/v51s2a17.pdf.
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ters.118 Additionally, many of the existing treatment centers lack the necessary equipment to provide optimal care.119 For example, of the twenty-three
state centers, only nine are equipped with linear accelerators, the device most
commonly used for external beam radiation cancer treatments.120 The cobalt
bomb, another device used in cancer treatment, is available in only ten of the
twenty-three state cancer centers, and dosimeters, a tool that radio oncologists use to measure the amount of radiation exposure experienced by
different tissues, are available in only nine of the state centers.121
In addition to equipment, radiation therapy for cancer treatment requires
highly trained specialists to determine the adequate radiation dosage level for
each patient that would be most effective for treating the development of
cancer cells. In Mexico, the scarcity of radio oncologists through the network
of cancer centers under SP is a major problem affecting quality of treatment.122 Most of the centers operate with only one radio oncologist. Recent
estimates determined that four to seven radio oncologists are required per
million inhabitants to meet minimum standards for cancer treatment.123
Given the estimated 45 million potential enrollees in SP, this would require
the availability of between 200 and 350 radio oncologists to meet minimum
population needs to adequately provide treatment for cancer patients.124
Thus, the current fifty-eight radio oncologists available through SP are far too
few to meet the needs of this group.125 Given both the measures of
availability of trained medical personnel required to meet minimum standards of breast cancer treatment and geographic centralization of specialty
services in Mexico, adequate treatment for breast cancer in Mexico is not
only limited for SP beneficiaries, but also for many mixed-status families
experiencing the disease.
As indicated above, the location of health care professionals as well as the
availability of trained health care professionals impacts the health outcomes
for breast cancer patients in Mexico. Because of the location of state cancer
centers in Mexico, patients under treatment for breast cancer must travel to
the capitals where these centers are located. Moreover, in states like Zacatecas, where there are no state cancer centers, returning families that have a
family member with breast cancer and have only SP coverage must cross
state lines to receive treatment for cancer, which adds to the total costs
associated with the process of seeking and acquiring treatment in Mexico.
These additional costs include paying for transportation, lodging, and meals,
and foregoing income due to lack of employment during the period of
118.
119.
120.
121.
122.
123.
124.
125.
See id. at 266.
Id. at 264.
Id.
Id.
See id. at 267.
See id.
See id.
See id.
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treatment, which creates further economic hardship for the family and the
individual.
Although the focus of this analysis is on the medical hardship experienced
by returning mixed-status families with a family member suffering from a
severe medical illness, it is critical to highlight the economic hardships these
family members face in acquiring medical treatment in their home communities. These cost estimates must be included when determining the total health
impact of repatriation for these families when they seek specialized medical
care for a vulnerable family member. A practical measure to illustrate the
impact of these costs is the calculation of the expenses in terms of the number
of days’ wages lost by individuals working at minimum wage. Based on
current estimates, about fifty percent of employed individuals in Mexico
make less than twice the regional minimum wage, which within the identified
states is equal to 55.84 pesos per day or 4.60 U.S. dollars.126 For a family
returning to rural areas in a state like Zacatecas, traveling to the capital would
cost ten days of minimum wages for traveling expenses, five days of
minimum wages per day of lodging, and two days of minimum wage to cover
meals, all in order to receive a single session of radiation treatment for breast
cancer.127 This would result in up to seventeen days of lost minimum wage
income due to expenses per radiation session. Patients with breast cancer
require anywhere from eighteen to thirty radiation sessions per treatmentblock depending on the stage of the cancer.128 In addition, there could be
potentially adverse employment effects from not being present on the job
during this period of travel and treatment. These costs are often prohibitive
for families facing unemployment and poverty upon their return to Mexico.
Moreover, these costs do not include payment for any part of the treatment
received. However, several studies show Mexican families often cover a high
percentage of the health care costs out-of-pocket, despite coverage under the
public system of care.129
Although there are well-published popular and academic accounts of the
success of SP in providing coverage of medical services for the medically
vulnerable population, there is scant evidence today to support this assertion,
126. See Minimum Wage Table, supra note 110.
127. Individual costs are calculated based on transportation, lodging and meals for two adults
traveling by land in Mexico. Daily minimum wage is based on the Minimum Wage Table, supra note
110 (55.84 Mexican pesos). Costs include average ticket price traveling round trip from marginal
rural town in Zacatecas to Capital city in Durango, equivalent to 138 Mexican pesos or 2.5 minimum
wage days per single trip. Lodging and meal costs are based on location of the cancer center in the
capital city of Durango (CEC Durango, DURANGO. CENTRO ESTATAL DE CANCEROLOGÍA-5
de Febrero Esq. Norman Fuentes S/N, CP 34000, Durango, Dgo., (01 618) 825-6482) and average
price of the closest hotels, (i.e. Hostal de Brujas at 450 Calderon costs 230 Mexican pesos per night)
and restaurant costs (i.e. Restaurant La Chata Corona 10.00 U.S. dollars or 126. 56 pesos per meal).
128. SUSAN G. KOMEN INSTITUTE, UNDERSTANDING BREAST CANCER, http://ww5.komen.org/
Content.aspx?id⫽5488 (last visited Nov. 1, 2010).
129. See Adressing Inequity, supra note 50, at 47; Three Generations of Reform in Mexico, supra
note 60, at 1670.
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particularly for those individuals requiring highly specialized treatment. The
reality of the Mexican health care system is that families often incur
catastrophic expenses, spending over thirty percent of their income as a result
of direct payment for health care.130 In 2002, fifty-eight percent of the total
health expenditures were covered directly by families, and in the last
trimester of that year, 3.9% of Mexican households incurred catastrophic
health care expenses.131 For the poorest segment in Mexican society (in the
lowest income decile) the vast majority—65.7%—of their catastrophic
expenses were due to costs associated with purchasing pharmaceuticals for
medical treatment.132
According to the Organization for Economic Co-operation and Development (OECD), over eighty percent of drug expenditures in Mexico are
out-of-pocket, the highest proportion among the countries considered for the
OECD report.133 Although these expenses are expected to be reduced with
the SP, currently, coverage for these expenses is not available. Access to and
coverage for pharmaceuticals, combined with limited access to trained health
professionals, directly affects the quality and access to care for at-risk
patients, such as breast cancer patients. Low inventories leading to unavailability of pharmaceuticals is also a problem facing SP members.134
In sum, ancillary costs related to availability of equipment, trained health
professionals, and pharmaceuticals, as well as constraints due to location of
state cancer centers, create a medical environment where inadequate treatment for breast cancer patients is the norm for SP enrollees and potentially
many enrollees from mixed-status families who return to Mexico. Without
proper treatment, the patient’s chances of survival greatly diminish. These
difficulties extend to the treatment of many other high-risk conditions
requiring specialty care that may affect families returning to Mexico. When
presenting evidence regarding the hardship requirement during cancellation
of removal proceedings, these costs and difficulties can be used to demonstrate the practical impossibility of acquiring adequate medical care for a
130. Felicia Marie Knaul, Héctor Arreola-Ornelas & Óscar Méndez, Financial Protection in
Health: Mexico, 1992 to 2004, 47 SALUD PÚBLICA MEX. 430, 432 (2005), available at http://
en.scientificcommons.org/1847201.
131. Felicia Marie Knaul, Héctor Arreola-Ornelas, Christian Borja, Óscar Méndez & Ana
Cristina Torres, El Sistema de Protección Social en Salud de México: Efectos Potenciales Sobre la
Justicia Financiera y los Gastos Catastróficos de los Hogares [The System of Social Protection of
Health in Mexico: Potential Effects on Financial Justice and Household Catstrophic Expenses]
CALEIDOSCOPIO DE LA SALUD 281 (2005), http://www.funsalud.org.mx/casesalud/caleidoscopio/
20%20ElSistemaDeProteccion.pdf.
132. Gustavo Nigenda, Emanuel Orozco & Gustavo Olaiz, La Importancia de los Medicamentos
en la Operación del Seguro Popular de Salud [The Importance of Medication in the Operation of
Popular Health Insurance], CALEIDOSCOPIO DE LA SALUD 265 (2004), http://www.funsalud.org.mx/
casesalud/caleidoscopio/19%20LaImportanciaMedicamento.pdf.
133. Veronika J. Wirtz, Guliano Russo & Ma De La Luz Kageyama-Escobar, Access to Medicines
by Ambulatory Health Service Users in Mexico: An Analysis of the National Health Surveys 1994 to
2006, 52 Salud Pública Mex. 32, 33 (2010), available at http://bvs.insp.mx/rsp/articulos/
articulo.php?id⫽002446.
134. See Laurell, supra note 56, at 525.
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qualifying relative suffering from such a medical condition, the inevitable
negative impact on the patient’s chance for survival, and, thus, the “harm to
[the qualifying relative that is] substantially beyond that which ordinarily
would be expected to result from the alien’s deportation” should the family
return to Mexico.135
CONCLUSION
In the United States, thousands of Mexican immigrants in mixed-status
families are involved in removal proceedings each year.136 Many seek relief
from deportation by applying for cancellation of removal in an effort to
preserve the lives that they have built for themselves—their families, jobs,
and social networks.137 The greatest barrier that these immigrants face in
bringing a successful claim for cancellation of removal is the inability to
demonstrate that they meet the “exceptional and extremely unusual” hardship requirement.138 To meet that requirement, applicants must demonstrate
that their U.S. citizen or legal permanent resident child, spouse, or parent will
suffer greater harm than would normally result from the deportation of a
close family member.139 For mixed-status families caring for a gravely ill
family member, the effects of forced removal and relocation to Mexico could
be devastating, given the deficiencies of the Mexican health care system. The
BIA has indicated that a satisfactory showing that a qualifying relative has
very serious health issues,140 which cannot be adequately treated or monitored if the relative returns to the applicant’s country of origin, will likely tip
the scale in favor of granting the applicant’s request for cancellation.141
To provide the judge with an accurate understanding of the difficulties that
deported Mexican nationals may face in attempting to access Mexico’s health
care system following deportation, the applicants will have to present
evidence demonstrating the impact of the socioeconomic and public health
conditions of their town of origin on access to health care, the availability of
health care coverage and resources in that particular region, and the ancillary
costs that the applicant would incur in seeking treatment for the qualifying
relative. Health care services provided under SP—the health care insurance
covering a majority of the Mexican population under which most returning
immigrants would likely seek care—are severely limited due to budgetary
constraints, lack of resources, and geographic distribution. These limitations
result in exorbitant ancillary costs for individuals returning to the remote and
135. See In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (BIA 2001) (citing H.R. REP. NO.
104-828 (1996) (Conf. Rep.)).
136. OFFICE OF IMMIGRATION STATISTICS, supra note 7.
137. See 8 U.S.C. § 1229b(b)(1) (2008); Choiceless Choices, supra note 9.
138. See In re Monreal-Aguinaga, 23 I. & N. Dec. at 63–65.
139. See id. at 62.
140. See id. at 63.
141. See Aburto-Rocha v. Mukasey, 535 F.3d 500, 504–05 (6th Cir. 2008).
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rural high-migration areas of Mexico. The difficulties and costs of seeking
and acquiring health care, coupled with the poverty and unemployment that
returning families frequently face, result in the families’ inability to provide
specialized treatment for the ailing family member. This creates a greater
likelihood of adverse health outcomes, including permanent disability or
even death. Clearly, articulating these vulnerabilities during cancellation of
removal proceedings, when appropriate, could be critical in minimizing
further harm to these families.