Mayorkas Teases ‘Safe Third Country’ Asylum Agreement with Mexico

Was he showing his cards, or just trying to run out the clock during dogged questioning?

By Andrew R. Arthur on April 4, 2023

In a recent post, I discussed part of an exchange between DHS Secretary Alejandro Mayorkas and Sen. John Kennedy (D-La.) during a March 28 hearing before the Senate Judiciary Committee. During that discussion, Mayorkas teased a possible “safe third country” asylum agreement with Mexico. Was it just talk, or is there something more brewing?

The Exchange. Sen. Kennedy asked the secretary:

Why don’t you just declare a new policy that other than children, if you present at the southern border, you claim refugee status, you claim political asylum, and you haven’t claimed refugee status and political asylum at the first safe country that you can’t come in? . ... Why don’t you just declare a safe third-country policy? It would work.

There were many different answers that the secretary could give to that answer (and he hemmed and hawed around many), but here is what he said: “Senator, let me give you an example with respect to Mexico. A safe third-country agreement with Mexico, let’s just hypothetically assume ...”

Bickering almost immediately ensued, as Mayorkas contended that he could not adopt such a policy unilaterally, while Sen. Kennedy contended that the United States could:

Just adopt a policy that says, except for children because you don’t want to send children back by themselves, just adopt a policy that if you didn’t seek asylum in the first safe third country, you can’t come in, period.

Mayorkas then asked the senator whether he was aware of the administration’s recent “notice of proposed rulemaking that we just issued, the comment period which just closed yesterday”, prompting Sen. Kennedy to retort: “You’ve had two years to adopt a policy like I just described. Why haven’t you done it?”

After more back and forth, Mayorkas contended: “I don’t think that is sound policy. To shut down the asylum system.” Things quickly devolved even further from there.

Safe Third Country Policies and Agreements. It is apparent from the exchange as a whole that Sen. Kennedy wants the Biden administration to adopt a safe third country transit rule along the lines of the one that the Trump administration adopted (which was later enjoined by the lower courts).

That rule would have required aliens who entered or arrived in the United States across the Southwest border to apply for asylum in a third country through which those aliens had passed before seeking such protection in the United States.

Respectfully, even that rule was more generous than international agreements require. The UN document that forms the basis for our current refugee and asylum program is the “1951 Convention Relating to the Status of Refugees” (known popularly as the “Refugee Convention”), which the United States acceded to through the 1967 Protocol. Key to this issue is Article 31.1 in the Refugee Convention, which states:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened ... , enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. [Emphasis added.]

Section 208 of the Immigration and Nationality Act (INA) governs U.S. asylum, but nothing therein restricts asylum eligibility for aliens who are not “coming directly from a territory where their life or freedom was threatened” in line with Article 31.1.

That said, there are exceptions to asylum eligibility in section 208 for alien criminals, national-security risks, persecutors, and those who are firmly resettled abroad, as well as one broad grant of authority that allows the executive branch “to establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum”.

The United States cannot, however, simply push inadmissible third-country nationals back across the Southwest border, even if they are ineligible for asylum (which appeared to be Mayorkas’ point). Expanding on Sen. Kennedy’s point, however, those aliens can usually be removed back home.

The Biden administration has proposed limiting asylum for aliens who aren’t coming directly from the country where they claim they are being persecuted and haven’t sought protection elsewhere, but as my colleague Elizabeth Jacobs has made clear, those limitations are nothing like the Trump transit bar:

[U]nlike the Trump-era third-country transit rule, the Biden administration’s proposed rule does not require aliens to submit an application for protection in a country they have transited through en route to the United States. The Biden administration will allow an alien to circumvent the presumption against eligibility so long as they merely “pursue a lawful pathway”, i.e., schedule their unlawful arrival using DHS's new CBP One app and enter via an issuance of parole. The rule, however, allows an alien to circumvent this requirement (and the rule’s presumption against eligibility for asylum) if the alien can show that they faced a language or technical barrier that posed a “serious obstacle” in operating the mobile phone app.

The proposal also includes several wide exceptions that threaten to swallow the whole rule.

A Safe Third Country Agreement with Mexico? As noted, Mayorkas also referenced a “hypothetical” safe-third country agreement with Mexico. The United States currently has such an agreement with Canada, the “Canada-U.S. Safe Third Country Agreement” (STCA), in effect since December 2004.

Under the STCA as originally written, an asylum claim by a third-country national arriving at a Canadian port of entry from the United States will be denied unless the alien already sought and was denied asylum in the United States (and vice-versa), subject to exceptions.

That said, as I explained on March 28, the STCA was recently expanded to include third-country aliens entering either country illegally from the other (to Canada’s significant benefit and the United States’ almost wholly unvarnished detriment).

Not many third-country nationals enter Mexico illegally from the United States, so at face value a safe third country asylum agreement wouldn’t appear to benefit Mexico much at all, in much the same way as the amended STCA does nothing to help the United States.

That said, the caravans of illegal third-country nationals travelling through Mexico on their way to the United States have bred corruption (as smugglers bribe government officials for safe passage) and crime (as money flows into the pockets of the cartels, again to allow the smugglers safe passage), and corruption and crime are destroying our neighbor to the south.

If there was a real risk that third-country “asylum seekers” would be turned around at the Southwest border and told to apply for protection in Mexico, however, few would make the journey to begin with. That would pare the corrupting migrant flow through that country, and put a lot of smugglers out of business.

Simply put, a “Mexico-U.S. Safe Third Country Agreement” would not be nearly as one-sided as the STCA is in its current iteration, and would provide almost instantaneous benefits to both nations.

Such an agreement would be the height of pie-in-the-sky thinking, were it not for Mayorkas’ interesting response to Sen. Kennedy. The fact that the secretary mentioned it suggests that he is at least considering it, and that such a deal might be on the table.

Was Secretary Mayorkas tipping his cards to the Senate Judiciary Committee about a potential safe third country asylum agreement with Mexico, or was he simply trying to run out the clock during dogged questioning by Sen. Kennedy?

Only time will tell, but such an agreement would benefit both countries, and provide significant relief to overworked Border Patrol agents at the Southwest border. In other words, if Mayorkas isn’t trying to make that deal — he should.