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Flaws With the New First Country Asylum Rule
In 2016 then-Candidate Donald Trump campaigned upon a promise to crack down on asylum seekers. Throughout this year, he has tried to fulfill that promise as aggressively as possible.
In January 2019, the Trump administration implemented a “Stay in Mexico” policy wherein migrants coming from Mexico, legally or illegally, who are applying for asylum are sent back to Mexico while they await their hearing date in the United States even if they are not from Mexico. If the migrant has multiple hearings, he is sent back to Mexico in between each one. The administration argues that this is legal under 8 U.S.C. § 1225(b)(2)(C) which states that a migrant who is arriving on land from a foreign territory contiguous to the United States, may be returned to that territory pending a proceeding.
The policy is likely a ploy to try to prevent these migrants from gaining asylum in the United States. According to 8 U.S. Code § 1158(2)(A)(vi), a migrant must be denied asylum if he was “firmly resettled in another country prior to arriving in the United States”. The administration is trying to force migrants to become resettled in Mexico before they can get a hearing to prevent them from obtaining asylum in the United States. A migrant is considered to be resettled if “prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement”. 8 CFR § 1208.15.
This is also problematic because the migrants can be arrested and deported from Mexico since they are usually not Mexican citizens. Additionally, because the migrants are not Mexican citizens, they are unable to find employment during the time they are stranded in Mexico unless they receive authorization, which would likely destroy their chance of obtaining asylum in the United States.
Under the Immigration and Nationality Act (INA), people can also be denied the ability to claim asylum in the U.S. if they can be removed to a ‘safe third country’ with which the U.S. has a formal agreement. However, no such agreement exists between the U.S. and Mexico, and evidence suggests the conditions in Mexico are far from secure.
This could also be against international law because under the 1967 Protocol Relating to the Status of Refugees, ratified by the United States, “[n]o Contracting State shall expel or return (‘refouler’) 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.” Protocol Relating to the Status of Refugees, art. 33, Jan. 31, 1967, 606 U.N.T.S. 267.
However, the Ninth Circuit has upheld this program at least to this date. As it stands now, it would appear that the only way to stop this policy is through legislation passed by Congress. Fortunately, there are two ways a migrant could get around this resettlement issue under 8 CFR § 1208.15(a). First, the migrant will not be considered resettled if he can prove that he has no significant ties to that country. The migrant could prove this by showing that “This would require showing that: (1) the entry into that country (Mexico) was a necessary consequence of his or her flight from persecution, (2) that he or she remained in that country only as long as was necessary to arrange onward travel, (3) and that he or she did not establish significant ties in that country.
Second, the migrant will not be considered resettled if he can prove that “the conditions of his/her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled”. In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.
While the “Stay in Mexico” policy may be arbitrary, exceptions in the law could allow migrants to still obtain asylum in the United States. Since the courts have allowed this policy to continue and there is no telling how the administration may continue to undermine the immigration process, it seems that the future of asylum law lies at the discretion of Congress.