By
making xenophobia the cornerstone of his administration, Trump has
placed himself in a weakened position of needing other countries to help
him deliver his signature campaign promise. The out-sourcing of US immigration hands enormous power to Mexico.

Since
the Trump Administration appears to have given up on signing a Safe
Third Country agreement with Mexico, this post will focus on the two
most important changes happening in the US, Remain in Mexico and the
Safe Country of First Asylum Policies, and how they are likely to affect
long-term Mexico-US relations. The short answer: it’s not good.
- **Update: The administration just announced it signed a “memo” with El Salvador. It’s not clear, at all, under US law that a “memo” can substitute for a Safe Third Country Agreement. Also, the administration has pledged to build El Salvador’s capacity to adjudicate asylum cases (refugee status determination.) While El Salvador has ratified the relevant laws and treaties, as of 2018, there were only 48 registered refugees in El Salvador. That means that only 48 people had gone through a UNHCR/government asylum procedure and received a status. This number raises serious questions about the capacity of the El Salvadorian government to process asylum cases without massive US/UNHCR support. The administration has said, and I quote from Vox, “The core of this agreement is … recognizing El Salvador’s development of its own asylum system and a commitment to help them build that capacity…” To this I say, “capacity??? What capacity???” Someone in the media should ask the administration about this. Hint Hint.
Remain in Mexico — Trump Might Not Know Much, But He Knows How To Get Himself Blackmailed.
“Remain
in Mexico,” or the Ministry of Truth named “Migrant Protection
Protocals (MPP)” is basically the Trump Administration’s attempts to
implement a somewhat successful policy put into place between the EU and
Turkey a few years ago. Under the agreement, refugees that reach the EU
from Turkey are sent back to Turkey, where their asylum claims are
processed. Those who are granted asylum are then transferred back to the
EU. In exchange, the EU has promised Turkey a boatload of money. Unfortunately, there has been continued fighting over the money, with Erdogan threatening to “release” more migrants into the EU if he doesn’t get more cash. Like
the politician who pays up to keep the pee tape out of the newspapers,
putting Mexico in charge of US asylum policy is giving Mexico a lot of
leverage over the US government in the future.
Today, there are camps of asylum-seekers at the border, waiting for their cases to be heard in special tent-courts.
It’s an entire, tent-based system of government. The 9th circuit has
allowed the program to go forward, despite concerns expressed by some
judges over the possibility of refoulement,
or that some asylum-seekers would face death or torture in Mexico. As
well, the Court had to go through a convoluted exercise in reasoning to
make the original statute make sense. Basically, if a person is clearly
not eligible for asylum, they are subjected to expedited removal and
sent back, as usual. Now, under the MPP, if the government thinks they
might have a case for asylum, they are….also sent back. According to the
Court, this will make processing of cases easier. What the 9th circuit are essentially saying is that it will be easier for judges to process asylum cases in tent courts than in regular courts. If any of this makes sense to you, than good for you.
As far as I’m concerned, the rule is illegal on its face. The administration is relying on an obscure clause
in the immigration law saying that people refused entry to the US from
Mexico may wait in Mexico to be deported to their home country. This
clause was clearly not meant to apply to asylum-seekers and, even if it
were, it would create unconstitutional discrimination between
people applying for asylum after arriving in the US by air and people
applying for asylum after arriving in the US by land.
Furthermore,
it’s ridiculous to argue that Mexican border camps are “safe” for
anyone. What’s the point of keeping people in Mexico if they likely have
valid asylum claims? And how is it making anything easier or smoother
for judges to force them to adjudicate cases in a tent? We all know that
Trump’s been packing the 9th Circuit with friendly judges, but this ruling is disappointing simply as an exercise in basic logic.
Of
course, as well all know, what’s really going on is that both the Trump
administration and, apparently, the revamped 9th circuit, think that if
people are made to wait in Mexico for asylum, they will eventually give
up and claim asylum in Mexico instead, which seems to be happening, to a limited extent. This raises the existential question of whether or not the US actually wants to grant asylum anymore. We either believe, as a country, in the right to asylum, or we don’t anymore.
Another
problem, of course, is that this policy is once again is making Mexico
the linchpin in US immigration policy. Because there is no formal
agreement between the US and Mexico, Mexico can stop complying with
these policies at any time, to whatever extent it wants. Let’s say, for
example, Mexico is in trade negotiations with the US. Maybe it needs
leverage. Well, now it has all the leverage it could possibly want or
need.
By
making xenophobia the cornerstone of his administration and painting
immigrants as a clear and present danger to the United States, which
they are not, Trump has placed himself in a weakened position of needing
other countries to help him deliver his signature campaign promise. Meanwhile,
the crises in Central America will continue for the foreseeable future,
meaning that there will continue to be plenty of human leverage for
Mexico and plenty of headaches for the Trump Administration.
Safe Country of First Asylum
Yesterday, a judge enjoined the
Trump Administration’s latest, and most draconian, anti-asylum policy
that would have required asylum-seekers who transited through Mexico to
claim asylum in Mexico. Basically, this policy was an attempt to get
around the legal requirement for a Safe Third Country as is very likely illegal. I
can’t predict what judges will decide, but the idea that you could get
around a clearly written federal law by pretending it doesn’t exist is a
disturbing precedent that I like to think would give any judge pause.
***Update:
The Supreme Court has quashed the injunction, a bad sign that it might
uphold this illegal Trump administration policy. If you don’t believe me
that it’s illegal, just read the law for yourself.
It clearly states that the US government needs to sign an agreement
before it can send asylum-seekers to a third country. You don’t need a
law degree to understand this.
The policy is before the US Supreme Court.
The government has made multiple claims that there is a “crisis” and,
therefore, they need to upend the regular order of business and ignore
the law. It’s not clear how the Supreme Court will view this attempt to
circumvent the law based on appeals to a dubious crisis, but we shall
see.
Once again, this is a policy the Trump Administration is trying to adapt from Europe, with its repeated attempts to “burden share” via the Dublin Regulations.
The problem for the Trump administration is that Dublin is predicated
on their being an organization, the European Union, that can regulate,
control and share information on asylum applications between the various
countries. In order for the “safe first country” policy to actually
work, the US government would have to set up a way to verify that people
had (1) transited through Mexico or Guatemala and (2) applied for
asylum there.
The
point of an official Safe Third Country agreement is to regulate all of
this and make it all work properly, which is why we have a Safe Third Country agreement with Canada.
It is a mystery to me why anyone would think it reasonable for the US
government to fail to obtain a Safe Third Country agreement with Mexico,
but then go ahead and unilaterally try to implement such an agreement
anyway. Once again, this makes no logical sense. But we will see what
the Supreme Court thinks.
If
the Court allows the Trump administration to implement this bizarre
policy of working with Mexico without an agreement, it is again going to
create a pressure point between the US and Mexico. Without formal
operating procedures, it’s unclear why Mexico would cooperate unless
they were getting something in return. Looming over all of this is the
fact that Mexico’s asylum system is very small and underfunded.
At this point, it is propped up by support from UNHCR and unable to
really function on its own. Any budget cuts to UNHCR regional programs
would likely trigger a collapse in Mexico’s capacity to process asylum
claims, meaning that UNHCR funding is increasingly becoming a critical
pressure point for US immigration policy.
All
of this outsources of US immigration policy means just one thing — less
control over immigration by the US government and more control by other
countries, particularly Mexico. It’s a strange place for a country obsessed with nationalism to be.
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