Joshua Partlow writes in the Washington Post:
“I am fleeing my country,” the policeman later recalled telling the guards, explaining that he had survived two attempts on his life. “I am being persecuted in a matter of life and death.”
The policeman said he was told he needed to see Mexican immigration authorities, who would put him on a waiting list to make his case to U.S. officials. But Mexican authorities refused to add him to the list, the policeman said, and he has been stuck in northern Mexico.
The Guatemalan is one of hundreds or perhaps thousands of foreigners who have been blocked in recent months from reaching U.S. asylum officials along the border, according to accounts from migrants and immigration lawyers and advocates.
The details of their cases vary. At the U.S. border crossing between Tijuana and San Diego, numerous asylum seekers from Central America and Mexico have been referred to Mexican authorities for an appointment with U.S. officials — but Mexican authorities often turn them down, according to migrants and immigration lawyers. In other places, migrants have been told by U.S. border agents that the daily quota for asylum cases has been reached or that a visa is required for asylum seekers, a statement that runs contrary to law, immigration advocates say.”
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The law is very clear: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . . .” 8 U.S.C. 1158(a).
Also, without getting too much into the particular facts, it appears that the former Guatemalan policeman described in the quote above could have a strong case for asylum under the BIA’s long-standing precedent decision Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988), finding that “former policeman” could potentially be a “particular social group” for asylum purposes.
Part of the problem here is that the U.S. does not have a meaningful “overseas refugee program” for the Northern Triangle. If the present, quite restrictive, program were expanded in both numbers and scope, and if the processing were more timely, more people would probably apply and be screened abroad, rather than coming directly to the border to apply. The U.S. could actually do Northern Triangle refugee processing in Mexico.
Additionally, the U.S. could encourage the Mexican Government to establish a program of temporary protection, similar to our “Temporary Protected Status,” so that individuals from the Northern Triangle who faced death or danger upon return could remain in Mexico even if the did not satisfy all of the technical requirements for refugee status.
Moreover, like the U.S., Mexico is a signatory to the U.N. Convention and Protocol on Refugees, but apparently has not done a particularly effective job of carrying it out. Why not work with the Mexican Government not just on law enforcement initiatives, but also on training adjudicators to provide fair hearings to individuals seeking protection under the Convention?
It might also be possible to work with other “stable” democratic governments in the Americas to share the distribution of those from the Northern Triangle who need protection.
Last, but certainly not least, as the incoming Secretary of Homeland Security, Gen. John Kelly, has suggested, it is important for a more permanent solution to work with governments in the Northern Triangle to provide stability and the rule of law in those “sending countries.”
We know that just throwing more money, personnel, walls, sensors, helicopters, detention centers, moats, etc. at the problem won’t effectively address the continuing flow of “desperate people fleeing desperate circumstances.” And, as our law provides, whether they come to our borders and turn themselves in or enter, legally or illegally, they actually have a right to seek asylum in the United States.
Isn’t it time to try some “smart strategies,” rather than just doubling down on the same old “enforcement only” approaches that have failed in the past and will continue to do so in the future?
PWS
01/17/17