Mexican migration officers and members of the National Guard detain Central American migrants during an operation at a bar in Tapachula, Mexico, on June 29, 2019.
Photo: Quetzalli Blanco/AFP/Getty Images
The Trump administration’s latest effort to upend immigration policy by Executive action, making it nearly impossible for migrants who cross the U.S.-Mexico border to qualify for asylum, flies in the face of U.S. asylum law and is sure to be challenged in court by human-rights groups. It also flies in the face of a fundamental principle of international law and puts our most important partner in addressing the Central American migration crisis — Mexico — in a terrible bind.
Shortly after the policy was announced on Monday, Mexico’s foreign ministry issued a statement expressing stern disapproval of Washington’s “unilateral” move, stating that “Mexico does not agree with measures that limit asylum and refugee status for those who fear for their lives or safety, and who fear persecution in their country of origin,” and that its government would “remain alert to the consequences of this decision taken by the U.S.”
The new rule issued by the Departments of Justice and Homeland Security, effective today, renders ineligible for asylum “an alien who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States,” with few exceptions.
In other words, pretty much any non-Mexican who comes to the U.S. from Mexico without having first applied for asylum in Mexico is automatically excluded. Since Mexican citizens make up a negligible fraction of asylum seekers at the border, this would effectively nullify U.S. asylum law at the southern border and would prevent hundreds of thousands of people, mostly from Central American countries, from seeking protection here.
Prior to this policy, eligibility for asylum was not dependent on how a person arrived in the U.S., with one important exception: If they were transiting through a “safe third country,” they would first have to apply for asylum there. The U.S. has a “safe third country” agreement with Canada, for example, which is at least as safe as the U.S. and rather more welcoming of immigrants to boot.
President Donald Trump has been trying to solve the mass-migration problem by compelling Mexico and Guatemala to sign safe-third-country agreements, but these countries refuse to do so because they are not particularly safe nor are they well-resourced enough to absorb and care for hundreds of thousands of asylees. (Indeed, many of the migrants seeking refuge in the U.S. are Guatemalans hoping to escape crushing poverty there.)
Trump has gotten Mexican president Andrés Manuel López Obrador to tacitly tolerate the administration’s euphemistically titled Migrant Protection Protocols (also known as the “remain in Mexico” policy), under which migrants who apply for asylum here are sent to Mexico to await their day in immigration court, though the Mexican leader says this, too, is a unilateral U.S. policy that Mexico only goes along with for humanitarian reasons. Mexico has also established a National Guard to watch its northern and southern borders and prevent illegal crossings, as part of an agreement with the Trump administration.
López Obrador faces mounting domestic criticism over his cooperation with Trump on immigration, however, and it is politically untenable for him to take it further. Mexico has not signed a safe-third-country agreement, and as Mexican foreign minister Marcel Ebrard made clear on Monday, its legislature would have to approve any such deal. On Sunday, Guatemala’s constitutional court blocked a tentative safe-third-country agreement that would require migrants from El Salvador and Honduras to seek asylum there, and Guatemalan president Jimmy Morales canceled a trip to Washington to discuss the agreement with Trump.
The statement from Mexico’s foreign ministry on Monday stressed that “special attention will be paid to respecting the principle of non-refoulement, as per international law,” underlining the legal and moral imperatives the Trump administration is flouting with its new policy. Non-refoulement is a norm dating to the early years of the U.N. that prohibits a country from sending asylum seekers back to a place where they are in danger of persecution, mindful of the Holocaust victims who were denied entry into safe countries and sent back to Nazi-occupied Europe.
The U.S. implicitly recognized the principle of non-refoulement in the 1980 Refugee Act, which states that an asylum seeker can only be “removed, pursuant to a bilateral or multilateral agreement, to a country … in which the alien’s life or freedom would not be threatened.” Indeed, the fact that we have “safe third country” agreements at all is an acknowledgement that many third countries are not safe. Having no such agreements with Mexico or Guatemala, and given that neither country can possibly qualify as a safe third country, the Trump administration appears determined to violate both domestic and international law in letter and spirit.
This latest regulatory workaround seems to have been the Trump administration’s backup plan for when its attempts to reach agreements with Mexico and Guatemala fell through, but beyond its dubious legality, it is also impractical without the cooperation of Mexico in particular. Announcing this rule change unilaterally, without Mexico’s knowledge or consent, is a giant middle finger from Trump to a government that is, in his words, doing more than the Democrats in Congress to help secure the U.S. border.
Trump’s failure to stem the migration crisis and the humanitarian disaster his administration has engineered at the border both stem in part from his unilateralism and his single-minded obsession with reducing immigration: Rather than working with our neighbors to the south to address the root causes of the migrant crisis, he is pursuing a unilateral quick fix to keep his facile campaign promises and mollify his base. Pressuring poor countries into illegal agreements they can’t possibly uphold and forcing them to take on unmanageable burdens is no substitute for a genuinely multilateral solution to this regional problem.