Should asylum seekers heading to the U.S. stay in Mexico?

The Trump administration wants more migrants fleeing their home countries to seek asylum in Mexico instead of coming to the U.S. border to ask for help.

As a recent migrant caravan that was the subject of criticism by President Donald Trump made its way north, U.S. officials encouraged caravan participants to seek asylum in the “first safe country” they entered, implying that they should ask Mexico for protection.

This week, news reports surfaced that Mexican officials were negotiating with the Trump administration over a potential safe third country agreement similar to one between the U.S. and Canada that would require asylum seekers to ask for protection in whichever of the two countries they enter first.

Critics of the Trump administration’s immigration policies were quick to say that such an agreement could be harmful to people who merit asylum. They worried that Mexico’s system — which receives a fraction of the requests processed by the U.S. — would not be able to handle a large influx of requests and that many with meritorious asylum claims would not be safe in Mexico.

An official with the Department of Homeland Security explained that by encouraging migrants to seek protection in the “first safe country,” the administration means they should stay in the first country where they are no longer facing the persecution that they were fleeing. The official said that the department has worked with Mexico and the United Nations office responsible for refugees and asylees to make sure that Mexico has a strong asylum system.

The DHS official declined to comment on reports of negotiations with Mexico over a “safe third county” agreement.

The idea of requiring more migrants to seek protection in a country other than the U.S. has been proposed before under this administration.

“What we cannot do — what we must not do — is continue to let our generosity be abused, we cannot capitulate to lawlessness and allow the very foundation of law upon which our country depends to be further undermined,” Attorney General Jeff Sessions said in October 2017 when he called for an expanded ability to send asylum seekers to other countries.

Some caravan members decided to stay in Mexico. Of the 1,200 who were reported in the caravan at the beginning of its journey, a little over 200 came to the U.S. border together to request asylum.

But, Mexico may not be a safe place for everyone fleeing persecution in other countries.

Certain groups of people — including the LGTBQ community, people with indigenous heritage, and foreigners in general — frequently report persecution in Mexico and seek asylum from Mexico itself. Some Central Americans report being followed by the gangs they fled back home through Mexico.

Organizations that monitor Mexico’s adherence to its own asylum laws have found human rights violations and failures by immigration officials to follow the process.

Asylum seekers are not obligated to ask for protection in the first country they enter that is not their own, said immigration attorney Tammy Lin.

“Many countries don’t have a system in place and don’t accept asylum seekers,” Lin said. “Most of the places — if we’re just talking Central Americans — that they’re coming up to don’t have a good system set up, and even if they did go that way, they hardly ever approve anyone.”

She has had clients from the Middle East who lived for periods of time in Jordan or Lebanon before seeking asylum in the U.S. They were able to request asylum here because they were never offered permanent status in those countries.

Canada is the only country that the U.S. has an agreement with regarding “safe third country” designation.

The treaty, signed in 2002, is based on a mutual acknowledgement that the countries have similar systems for requesting asylum, explained immigration attorney Ginger Jacobs.

“If someone pursues their claim in the U.S., they can't go to the Canadian border and try to get a second bite of the apple in Canada,” Jacobs said.

There are several exceptions to the agreement. It does not apply to U.S. or Canadian citizens seeking refuge.

Asylum seekers who have family members living with permission in the country they’re trying to enter can still request protection there. Unaccompanied children are also exempt from the agreement’s restrictions.

People who have permission to enter the second country can still apply for asylum there. The U.S. and Canada may also make “public interest exceptions” for people who they want to help, regardless of the agreement.

Lin said that having an agreement with Mexico would mean expecting Mexico to have an infrastructure similar enough to the U.S. to process asylum seekers.

“Canada is a first-world country,” Lin said. “It’s not much different from the U.S. They have a good mechanism in place, and they’ve had a system in place for asylum seekers for so long. To require Mexico to do it, they’d have to build it up.”

In 2016, 8,788 people applied for asylum in Mexico, according to a Human Rights First report. Canada received 23,930 asylum applications that year, according to government data. Between asylum applications to U.S. Citizenship and Immigration Services and asylum applications filed in immigration court, the U.S. received more than 180,000 asylum applications in fiscal 2016.

Just under a third, or about 7,300, of the applications made in Canada came through its land border despite the agreement with the U.S.

Canadian media have reported that migrants seeking protection in Canada now cross illegally into the country so that they’re still able to apply for asylum after being in the U.S. Because of harsh winters along the U.S.-Canada border, this has led to asylum seekers getting severe cases of frostbite or even dying.

The Trump administration’s rhetoric regarding immigrants has led to higher numbers of asylum seekers risking illegal crossings into Canada because the migrants don’t believe that the U.S. will protect them, according to Canadian media.

Besides the agreement between the U.S. and Canada, asylum seekers can also be restricted from applying for help in the U.S. if they “firmly resettled” in another country before coming here.

Firm resettlement means more than just living somewhere for a while. The country where the person was living had to offer some type of permanent residence to the migrant.

“Country shopping” is not allowed, Lin explained, though if someone was also persecuted in the country he or she first resettled in, that person could still request asylum in the U.S.

Lin had an Ethiopian client who went to South Africa before coming to the U.S. During his asylum hearing, the client had to explain that he looked identifiably different from Zulus, a large ethnic group in South Africa, and that because of those differences, he also faced persecution in that country.

On paper, Mexico’s asylum law is broader than the one in the U.S., but human rights organizations and even the U.S. State Department have reported that in practice, the country often falls short of providing the protection promised under law.

Asylum law in individual countries is generally based on the Refugee Convention of 1951, which Mexico signed in 2000. That international treaty is the basis for U.S. law that defines asylum seekers as those fleeing persecution because of their race, religion, nationality, political opinion or membership in a particular social group.

Mexico’s legal definition, published in 2011, also includes people whose life, liberty or security are in danger because of generalized violence, foreign aggression, internal conflict or major human rights violations.

In 2016, Mexico added protections in its Constitution saying that anyone entering the country has the right to request asylum.

Still, many say that Mexico’s system poses challenges for asylum seekers. In Mexico, asylum seekers have 30 days to file an application. The U.S. allows people up to one year to request protection.

A September 2016 report by Sin Fronteras, a Mexico City-based human rights organization, found that many Mexican immigration officials do not know the proper legal procedure to follow with asylum seekers.

“As a consequence, they have even prevented access to legal representatives, omitted adequate information on the process, and even discouraged requests of acknowledgement,” the report says.

Those responsible for deciding whether to grant asylum often don’t have enough time to do the required level of analysis, it also says.

In July 2017, Human Rights First reported that despite some improvements in Mexico’s system, asylum seekers also still frequently faced dangers like kidnapping, disappearance, sexual assault or trafficking after entering Mexico.

It found that immigration officials frequently discouraged migrants from seeking asylum in Mexico and that the Mexican Refugee Commission, called COMAR, was “massively underresourced” to adjudicate the number of asylum claims that the country received.

COMAR has three offices, one in Mexico City, one in Tapachula and one in Acayucan, a city in Veracruz.

Eleanor Acer, director of Human Rights First’s refugee protection program, criticized the Trump administration’s attempts to designate Mexico as a safe third country.

“Mexico is not a ‘safe third country’ in any sense,” Acer said. “The administration has waged a year-long campaign to undermine the asylum system and vilify those who seek protection at our border; today’s negotiations are merely the latest tactic to shut the door on those who are desperate to live in freedom and safety.”

Jacobs has had Central American clients who first tried to resettle in Mexico but were persecuted there as well.

She said other asylum-seeking clients chose the U.S. over Mexico because they already had family in the U.S.

“In times of crisis, people often want to join their family members,” Jacobs said. “I think that's a natural human instinct if we think about ourselves. If we were in a moment of crisis and were forced to flee to another state, we would first think of states where we have relatives.”

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