Trump’s “Apply in Guatemala or Mexico” Refugee Policy is Illegal and Cruel

Posted in: Immigration Law

Guatemalan President Jimmy Morales was scheduled to meet with U.S. President Donald Trump earlier this month with the aim of signing a “safe third country” agreement, which could then preclude asylum seekers who passed through Guatemala en route to the U.S. from seeking asylum here. They would need to apply in Guatemala. However, Morales canceled the meeting pending a ruling by his country’s Constitutional Court.

Undaunted, the Trump administration acted as though such an agreement were in place, issuing a new rule that bars asylum applications from anyone who crosses or attempts to cross the U.S.-Mexico border after failing to apply for asylum in at least one country crossed while en route to the U.S. Because the land routes from elsewhere in Latin America all run through Guatemala and Mexico, as a practical matter, the new rule bars asylum to nearly all Latin American asylum seekers who do not apply in either of those countries (or another country they traversed).

The rule is plainly illegal. Like other aspects of the Trump immigration policy, it is also cruel and will likely prove counterproductive.

The Rule is Plainly Illegal

Federal statutory law implements the treaty obligations of the United States by granting asylum seekers categorical permission to apply, regardless of how or where they entered the country. The key provision states that “any” noncitizen, “who is physically present in the United States (whether or not at a designated port of arrival…)”, may apply for asylum.

To be sure, the same statute also provides that migrants may be denied the opportunity to seek asylum in the U.S. based on having traversed other countries where they did not apply for asylum “pursuant to a bilateral or multilateral” safe third country agreement. However, as recent events underscore, the U.S. does not have a safe third country agreement with Guatemala, nor, for that matter, with Mexico.

Another statutory provision allows an asylum petition to be denied after being heard upon a finding that the applicant was “firmly resettled in another country prior to arriving in the United States.” Yet even if one were to construe this provision as authority for denying a right to seek asylum in the first place, it would not justify the new Trump administration rule, because people who merely pass through Guatemala or Mexico en route to the U.S. have not “firmly resettled” in those countries.

Judges and lawyers sometimes exaggerate when they say that the plain language of a statute requires a result, but here it really is that simple. The new Trump rule is obviously illegal. Accordingly, a lawsuit filed last week by the ACLU on behalf of East Bay Sanctuary Covenant (a California-based non-profit organization that assists refugees) and other organizations should swiftly succeed in having the “apply in Guatemala or Mexico” rule enjoined.

Indeed, on behalf of East Bay Sanctuary Covenant and other plaintiffs, last year the ACLU obtained an injunction against another unlawful Trump policy—one barring asylum applications from migrants who enter the U.S. at places other than designated border crossings. The U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge Jay Bybee (a conservative appointee of President George W. Bush), refused the government’s effort to overturn that injunction, because that rule also directly contradicts the federal asylum statute.

Guatemala Cannot Handle a Flood of Refugees

Absent a safe third country agreement, the new rule is clearly unlawful, but what if the U.S. ultimately reaches such an agreement with Guatemala? Asylum applicants would be out of luck, because a further provision of the federal asylum law deprives U.S. courts of “jurisdiction to review any determination of the Attorney General under” such an agreement. Yet while that means the administration could get away with barring asylum applications based on a future agreement with Guatemala, it hardly means that such an agreement would be lawful.

Guatemala does not qualify as a safe third country, which, per the statutory definition, requires that asylum applicants not face the same sort of dangers that led them to flee their home countries. Yet the plague of violence driving people out of Honduras, Venezuela, El Salvador, and other countries south of Guatemala has affected Guatemala as well: Guatemala’s murder rate, though lower than its most violent neighbors, is among the world’s highest.

To be sure, asylum is reserved for people fleeing persecution on the basis of some protected status, not those fleeing all acts of violence. And in June of last year, the Trump administration adopted a policy construing even extremely credible fears of gang violence and domestic violence as failing to qualify. But like so many other draconian Trump administration policies, that one has been enjoined as unlawful. Accordingly, Guatemala should not count as a safe third country.

That same conclusion follows from another statutory requirement—that the asylum seeker “would have access to a full and fair procedure for determining a claim to asylum” in the designated safe third country. Yet Guatemala scores very poorly on a global rule-of-law index—tied with Iran and worse than China. The U.S.—a wealthy country with a population twenty times that of Guatemala—currently faces a severe backlog in processing asylum claims. Diverting all of those claims to Guatemala would absolutely overwhelm that country’s justice system, making “full and fair” asylum hearings impossible.

The Wrong Approach

The Trump administration is not entirely responsible for the current immigration crisis, which is fueled by crime, economic collapse, and ineffective or corrupt government in parts of Latin America. However, the administration has taken various steps to exacerbate the problem.

Most obviously, at a time of dire need for refugee resettlement, the administration has cut back drastically on the number admitted into the United States. The State Department’s own data show that since 1975, annual refugee admissions peaked at over 200,000 in 1980 (following the exodus of “boat people” from Southeast Asia), then fell to between 50,000 and 100,000 per year, then climbed above 100,000 per year after the fall of the Soviet Union in the late 1980s and early 1990s, and then returned to between 50,000 and 100,000 per year for roughly the last two decades. Then along came Trump, who reduced the number of refugees admitted to its current level of roughly 30,000 annually, with talk from the administration’s immigration hawks of still lower targets, possibly zero.

There is no valid policy justification for the severe cutbacks. On the contrary, recent history shows that the U.S. has sensibly adjusted refugee admissions in response to the waxing and waning of refugee crises. The current draconian approach responds to the politics that fuels Trump’s xenophobic base, not to events on the ground.

Meanwhile, Trump has fueled the migrant influx in two ways. His constant tough talk and threats to close the border have induced some people who think they might want to head to the U.S. at some point to come sooner rather than later or never, for fear that their window of opportunity will close. Trump has also cut aid funding to Central American countries in desperate need of capacity building so that their citizens have a reason to seek a satisfying life at home. This all-stick-and-no-carrot approach will likely prove counterproductive.

The Big Picture

Granting that Trump’s refugee policy is illegal, cruel, and counterproductive, the administration is not wrong that the existing system has problems. Most glaringly, many people who claim asylum are not entitled to asylum under international law or its U.S. codification, which protects victims of persecution, not everyone seeking a better life—even those who are desperately poor. But once again, the administration’s policies do not match the problem.

Immigration hawks sometimes complain that undocumented immigrants should “get in line” to wait to immigrate lawfully. But for nearly all would-be immigrants who do not qualify for refugee status, family reunification, or high-skilled work, there is no line. Given that the U.S. birthrate has fallen substantially below replacement levels, a sensible policy aimed at sustained economic growth would increase the number of immigrants lawfully settling in the U.S.

Needless to say, Trump’s policy is not sensible. In the most benign version, Trump would leave total immigration levels static. That is an inadequate plan, but it is better than what the administration has in fact been doing. Under the influence of hardliners both in and outside of his administration, Trump has cut the numbers of legal immigrants, even so-called “merit-based” immigrants.

The immigration crisis is real. The administration’s illegal and cruel response exacerbates it.

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