"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
THE HILL: Nolan Says Trump Will Take Drastic Action To Shut The Border!
Mexico already is encouraging the migrants in the caravan to apply for asylum in Mexico instead of in the United States. It has offered them temporary identification papers and jobs if they register for asylum in Mexico.
If Trump establishes third country agreements with a substantial number of countries, it could greatly reduce the number of asylum applications the United States has to consider.
Trump also is considering an executive order to keep asylum seekers from Central America out of the United States. Presumably, it would be based on section 212(f) of the INA, which reads as follows:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation … suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.
The Supreme Court upheld Trump’s travel ban order on the basis of this provision, but an order suspending the entry of asylum seekers from Central America would be challenged in the same lower courts that flouted precedent to reject his travel ban.
According to Eric Posner, a professor at the University of Chicago Law School, the courts created a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason for an executive order.
And this time, the courts would have an objective basis available to them.
The United States is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Trump also can arrange for persecution claims to be screened outside of the United States.
Moreover, the United Nations Refugee Agency, UNHCR, might be willing to process some of the Central American asylum seekers outside of the United States.
The only certainty is that Trump is preparing to take drastic action.
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Read Nolan’s complete article over at The Hill at the above link.
It‘s debatable whether Mexico qualifies as a “safe third country” for asylum purposes. Most notably , the Mexican Government has not entered into a qualifying agreement with the US, and currently shows little inclination to do so.
However, Nolan directs our attention to a very significant point. While Mexico might not be a “safe third country,” it probably is a “safer third country” than any of those in the Northern Triangle. Nolan correctly notes that some migrants already are choosing to apply for asylum in Mexico rather than continuing the hazardous and uncertain journey to the US border.
Given the clearly xenophobic, anti-asylum attitudes of the Trump Administration, the uncertainties of the current US process, the lengthy waiting times, and that only about one in three applicants who reach a final merits hearing in Immigration Court get asylum (and that rate will probably be lower for Northern Triangle applicants under the Sessions regime), more refugees from the Northern Triangle might want to seriously consider applying in Mexico instead.
Rather than making threats and wasting taxpayer money on ridiculous and unnecessary militarization of our border, the Trump Administration would be wiser to provide financial and professional support to Mexico in establishing a fairer, more professional, and more legitimate asylum adjudication system in Mexico.
As the TPS programs and NACARA have shown, refugees and other forced migrants from the Northern Triangle are generally law abiding, hard working, talented folks who could help Mexico both stabilize its society and further bolster its economy. With the Trump Administration’s disdain for internationalism and trade, there will be room for countries like China, Mexico, and India to advance their positions. Forced migrants from the Northern Triangle could help Mexico advance. And, in the long more economic equality between the US and Mexico could prove to be in everyone’s best interest.
