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.