With border crossings at their highest level in more than 12 years and congressional Democrats intent on blocking desperately needed humanitarian aid and border security resources, the Trump Administration is once again left as the last line of defense at the border.
On Thursday, the administration rolled out a new policy aimed at encouraging Mexico to do more to crack down on the thousands of Central American migrants passing through their country on the way to the United States to claim asylum.
Acting Homeland Security Secretary Kevin McAleenan described the three efforts the United States wants to see from Mexico:
- More vigorous efforts by Mexico to secure the border between Guatemala and the Mexican state of Chiapas. The Guatemala-Chiapas border is approximately 500 miles—small as borders go. For comparison, the U.S.-Mexico border is close to 2,000 miles.
- A crackdown on the organizations that help migrants travel through Mexico to the United States. These organizations range from the criminal—a RAND corporation study estimates that Central American cartels made $2.3 billion on human trafficking across the U.S.-Mexico border in 2017—to the activist groups organizing massive surges toward the U.S., to the bus lines that have arisen to facilitate entrance to the U.S. There’s a reason why more migrants are appearing in large groups—Customs and Border Enforcement report that they’ve found 180 groups of more than 100 people since October, compared to only 13 in the previous 12-month period, and only two the year before.
- Finally, McAleenan says he wants “align with Mexico on asylum.” This is a reference to the “safe third country” agreement that is common practice throughout the rest of the world, but with which Mexico refuses to engage.
This last point touches on a number of critical areas about how our asylum laws work that are worth unpacking.
It is now well documented that many of the Central American migrants are coming to the United States to claim asylum—despite the fact that border interviews suggest that most of these migrants are simply coming to America for work, rather than fleeing persecution.
So why are they claiming asylum? Because our asylum process has two glaring loopholes that are easy to exploit. First, an asylum claim automatically gets you into the country. Second, if you come with a child, you will be allowed to enter the country and then be released, due to the long-standing Flores legal settlement, which does not allow children to be detained more than 20 days.
Though the executive can tinker with enforcement, Congress would need to change existing statutes to make permanent fixes—and both parties in Congress have, for years, stubbornly refused to address these obvious problems.
This is where the “safe third country” doctrine comes in. Under international law known as the Dublin Regulation, migrants seeking asylum are required to claim it in the first safe country they enter. The theory behind this is that if migrants are truly seeking shelter from persecution, rather than simply trying to use the system to reach a specific destination, they will stop in the first place they find relief.
The Heritage Foundation’s Hans von Spakovsky explained it this way,
Passing through another country without seeking asylum undercuts any claim made upon arrival at the U.S. border. For example, a Honduran who claims he was forced to flee due to political persecution has no compelling reason to go further than Mexico. He obviously has no credible reason to fear he will be persecuted by the Mexican government. Thus, ignoring Mexico’s asylum process is prima facie evidence that a claim for asylum in the U.S. is bogus.
This “safe third country” is the prevailing legal standard for the entire European Union under the Dublin Regulation. The United States has a similar agreement with Canada.
Mexico, however, refuses to sign a “safe third country” agreement with the United States—this despite Mexico having incredibly generous asylum laws that are even broader than our own. To be declared a refugee in Mexico, one simply has to claim to have been threatened by “generalized violence” or “other circumstances which have seriously disturbed the public order.”
Though parts of Mexico are indeed unsafe due the Mexican government’s unwillingness or inability to challenge the drug cartels’ control, much of Mexico is still free of violence and thriving commercially, with cities like La Paz and Tulum boasting lower murder rates than that of New York City or Chicago.
In fact, more than 40 million tourists visited the country in 2017—myself included. In April, I rented a house from a local in the southern Mexican city of Oaxaca and spent a week there, exploring the city and surrounding countryside without incident.
All of this to say, it is not unreasonable to expect migrants seeking asylum to be able to find safe places to reside in Mexico. This could be why, according to statistics from Mexico’s Commission for Refugee Assistance, asylum applications have doubled over in four years.
Mexico has a role to play in helping the United States control migrant flows that pose a humanitarian crisis and threaten our sovereignty. Moreover, Mexico has the ability to do it, which is why the Trump Administration is right to call out the Mexican government for its lax enforcement.
As long as Congress continues to make itself irrelevant to the pressing issues surrounding illegal immigration, the Trump Administration is both the first and last line of defense in trying to surmount a border crisis that is now impossible to ignore.
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