Trump’s plan to force asylum-seekers to stay in Mexico would violate domestic, international law, experts say

Since May, the wait time for those seeking asylum at international ports of entry has risen from a few days to several weeks, and, in some cases, even months. As a result, asylum seekers arriving at the border have been exposed to dangerous environments without proper access to resources for their health or security. If the Trump administration and Mexico reach a new agreement, the wait time could soon reach indefinite and unbearable lengths.

On Nov. 24, the Washington Post was among the first to report that the Trump administration had reached a new asylum deal with Mexico, aptly dubbed “Remain in Mexico.” As hinted by the name, the proposed policy would require asylum seekers arriving at the US/Mexico border to remain in Mexico while their asylum cases are processed through the US immigration courts system. The policy shift was the latest in a slew of unprecedented proposals, including a proposal to bar asylum seekers entering between ports of entry from seeking asylum, crafted in response to the exodus or caravan of Honduran migrants traveling through Mexico.

Although President Trump has gone to Twitter to flout the policy as done deal, several top Mexican officials have denied any deal has been reached, indicating instead that conversations remain open and ongoing.

“There is no agreement of any sort between the incoming Mexican government and the US government,” future Interior Minister Olga Sanchez told Reuters.

Since then, the news cycle has moved on to different topics, but for human and immigrant rights advocates who are wary of the huge and unprecedented challenges and dangers such a plan could bring, it remains a top concern.

According to them, the policy proposal carries not only the potential for increased bodily harm to asylum seekers but also raises important questions regarding the safety of those supporting asylum seekers, the quality of resources and legal services that will be available to those stuck at the border, and the potential legal ramifications for Mexico should it decide to assume the role of the US’ asylum waiting lobby.

Jennifer Harbury, longtime international activist and human rights attorney, told Neta that any variation of a plan that forces asylum seekers to remain in Mexico while their case moves through the courts would violate established international and domestic laws.

Among the international norms that would be violated, for example, is the principle of non-refoulement which protects any person from being returned to a country where that person’s life, physical integrity, or liberty would be in danger. The longstanding principle dates back to the 1951 Refugee Convention, following the failure of the international community to provide adequate protection to Nazi-era refugees.

“International law that we are in signature to says if people are in danger of persecution or torture, they don’t get sent back,” said Harbury. “That’s our law. Sending them back to Honduras [for example]; that’s one refoulement. Sending them back to Reynosa, even if they’re Honduran, that’s a second refoulement because they’re not safe there either. You can’t send them anywhere that they’re in danger. Period.”

Despite the legal questions and complications raised by domestic and international law, the Trump administration appears intent in finding a way to make the plan reality, causing worry among human and immigrant rights advocates. Highest in the long list of concerns is the potential for human harm.

According to Harbury, forcing people to stay in the northern border region of Mexico— some parts of which have been put under “Do Not Travel” warnings by the US— for extended periods of times could create overwhelming numbers in shelters and intensify migrant kidnapping.

“Any asylum seekers who are waiting in South Texas…would definitely be facing serious security challenges while there,” said Stephanie Leutert, Director of Mexico Security Initiative (MSI) at the University of Texas in Austin.

According to Leutert, whose work focuses on Central American migration and Mexico’s migratory policy, although the types of violence perpetrated against asylum seekers traveling through Mexico vary, in Reynosa, kidnapping is the most prevalent issue. In November, she worked on a report about migrant kidnappings that was aggregated using data collected from the state and federal Mexican police, as well as newspaper articles.

“In that whole process, Reynosa emerges far and away as the city in Mexico that is the migrant kidnapping capital of the country,” Leutert told Neta. “From 2006 to 2018 Reynosa was the number one place in Mexico for migrant kidnapping.”

Although Matamoros is known for having fewer reports of kidnapping, Leutert expressed that under “Remain in Mexico,” the potential for harm or danger would likely see an increase.

If the policy goes into effect, the potential for harm may not stop with asylum seekers. US attorneys and volunteers who want to provide legal aid or support to asylum seekers may also be exposed to safety risks.

“If you want a guarantee of safety, don’t go into border areas. If you want to work with refugees and you want some safety, don’t go to Reynosa. It may be a little easier going to the bridge areas in Matamoros,” Harbury said. Still, for those who will feel compelled to go “where the needs are,” under a policy shift like “Remain in Mexico,” there may be no other option but to “accept the risk.”

As an attorney, it’s not just safety Harbury worries about. She has a myriad of questions and doubts about how a US asylum process— a process which can last from six months to several years, with several requirements and courts in between— could realistically be carried out remotely. It’s unclear even how the credible fear interview, the basic first step in the asylum process which establishes whether a person’s case has sufficient merit to move forward, would be implemented.

“If they try to do credible fear in Mexico, that’s going to lead to all kinds of problems also because there’s too much abuse and prejudice at that stage [of the asylum process]… and people won’t have very real access to any US lawyers to help them appeal adverse or unlawful findings,” said Harbury.

Some human rights and legal advocacy groups have also pointed out that should “Remain in Mexico” move forward, the plan could also have the effect of creating unprecedented liabilities for Mexico.

In a letter to incoming Mexican President Andrés Manuel López Obrador, the National Immigrant Justice Center, Human Rights First, and Women’s Refugee Commission implored the new Mexican administration to reject the plan.

“By entering into an agreement with the United States, Mexico could incur legal obligations it might not want. A bilateral agreement between the United States and Mexico would likely result in mixed or dual responsibility between the two countries for the myriad legal obligations that arise under international and domestic laws of both countries toward the processing and treatment of asylum seekers,” the letter states.

According to unnamed US officials who described the plan to the Washington Post on condition of anonymity, the plan would allegedly enable Customs and Border Protection (CBP) officials to process asylum claims in a quicker manner because “they would not be limited by detention space constraints at US ports of entry.”

But along the border, advocates and volunteers are more than skeptical.

For many, questions still remain about what CBP’s capacity actually is and why the policy of turning back asylum seekers was implemented, to begin with. A reasonable question when one considers that apprehensions at the border, a figure which CBP uses as a proxy for migration traffic flows, are three times less than what they were almost two decades ago when CBP’s budget was barely a third of what it is now.

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