National Review, June 5, 2019
President Trump's threat to impose tariffs on Mexican goods starting next week may or may not get Mexico to be more cooperative in preventing third-country "asylum-seekers" from passing through on the way to our border. I'm not too concerned about the costs that such a tariff would impose on U.S. businesses and consumers (which would be real), because the costs would be worth it if the tactic were actually to work. I'm skeptical it will, since Mexico always has a chip on its shoulder with regard to us. But recent signs suggest I might be pleasantly surprised. Here's hoping.
Perhaps more important than the means, however, are the desired ends. During a call with reporters last week, acting DHS Secretary Kevin McAleenan laid out three specific steps the administration wants Mexico to take. First is tightening security on Mexico's border with Guatemala and chokepoints in southern Mexico (such as the Isthmus of Tehuantepec). Second is targeting the smuggling organizations; as McAleenan said, "The logistical effort to move 100,000 people through a country every four weeks is immense. This is noticeable."
Mexico might well agree to these two demands, potentially averting the tariffs. But the third demand is the most consequential, and the most difficult. As McAleenan put it, "We need to be able to protect people in the first safe country they arrive in — really, all through the hemisphere, but certainly with our partner to the south." In other words, the administration wants Mexico to sign a "safe-third-country" agreement, whereby foreigners who pass through Mexico would not be permitted even to apply for asylum at the U.S. border, and Mexico would agree to take them back, because if they were genuinely fleeing persecution, they should have applied in the first safe country they reached. As Hans von Spakovsky of the Heritage Foundation wrote last fall about one of the migrant caravans, "ignoring Mexico's asylum process is prima facie evidence that a claim for asylum in the U.S. is bogus."
The U.N. treaty governing these issues specifically allows for such agreements. Article 31 of the 1951 Convention Relating to the Status of Refugees says that illegal aliens cannot be denied the ability to seek asylum so long as they are "coming directly from a territory where their life or freedom was threatened." (Emphasis added.)
("Refugees" and "asylum-seekers" are both people who fear persecution, but in U.S. law are geographically distinct; a refugee is not yet in the country where he seeks refuge, whereas someone seeking asylum is already there, either as a visitor or an illegal alien, and is asking to stay. In other countries, the terms are often conflated, so that someone granted asylum may simply be referred to as a refugee.)
A safe-third-country agreement requires those seeking asylum to apply in the first country that's party to the agreement, rather than forum shopping, as it were. That was the intent of the Dublin Regulation in Europe; the 2015 migration crisis was sparked when Angela Merkel decided to ignore it and take asylum applications from people who'd already passed through other (less prosperous) participating countries.
U.S. law specifically allows the executive branch to prevent people from applying for asylum if they can be removed to a country with which we have a safe-third-country agreement. We already have such an agreement with Canada, though it applies only to those arriving at ports of entry, not sneaking across the border.
An agreement between the United States and Mexico, allowing us to simply turn asylum-seekers (including those who jump the border) around, would erase the incentive that's drawing increasingly large numbers of people to our southwestern border. In April, nearly 110,000 people were apprehended by the Border Patrol, or were inadmissible at ports of entry, more than double the total from the previous April and a six-fold jump from April 2017. The May number will be even higher.
The majority of these people are no longer single men trying to sneak past the Border Patrol, but families and "unaccompanied" minors turning themselves in and applying for asylum. They do this because loopholes in our laws guarantee release into the United States (with work authorization for the adults) to anyone bringing a child, or any child who arrives "unaccompanied" (i.e., brought up to the border by a smuggler, then sent across on his own). They have been coached to claim fear of return to their home countries and are released to pursue an asylum claim (though only half of them even bother, since the goal for many is just to be released into the United States.). Even those who are rejected are almost never deported.
This means, as one Guatemalan told McAleenan, "a child is like a passport for migration."
And while the majority of those currently exploiting these loopholes are Central Americans, word is spreading. Migrants from Africa have been passing through Latin America and showing up at our border for some time now, but last week saw the first-ever large group of Africans illegally crossing the border and turning themselves in to the Border Patrol. Bangladeshis claiming to be minors are also now showing up in large numbers to exploit these loopholes.
Of course, Mexico has little incentive to agree to take back third-country nationals once they've crossed into the United States.; in the game of asylum hot potato, we've lost. Hence the tariff threat, to try to change the Mexicans' incentives.
But as a matter of principle, the U.S. demand that Mexico sign a safe-third-country agreement is stronger than it looks. It's not just that Mexican authorities often look the other way — or even provide assistance — as hundreds of thousands of foreigners pass through its territory on the way north. Rather, the possibility of asylum in the United States serves as way for Mexico to avoid the consequences of its own very expansive asylum laws.
Mexico is a signatory to the 1951 Convention (and the 1967 Protocol, which expanded the refugee treaty from just Europe to the whole world). Under that treaty, the definition of a refugee is anyone outside his country who is unwilling to return because of a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." This definition has been added to U.S. law.
In addition, though, Mexico joined a number of other Latin American countries to sign the 1984 Cartagena Declaration on Refugees. That declaration significantly expands the definition of a refugee to include "persons who have fled their country because their lives, security or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order." This standard, which has been formally incorporated into Mexican refugee law, is so broad as to extend asylum protections to hundreds of millions, potentially billions, of additional people.
Mexico has an asylum bureaucracy, the Mexican Commission for Refugee Assistance (COMAR), to implement this all-embracing definition of asylum, complete with a helpful video on how to apply.
Of course, Mexico has no intention whatsoever of giving asylum to millions of foreigners. But how to avoid that while maintaining its more "generous" standards for asylum — on paper — compared to the pinched and miserly United States? By making sure asylum seekers keep moving north, whether they're from Central America or from farther afield and using Central America as a staging point.
Mexico's incentive to keep people moving north is highlighted by the increase in the number of foreigners taking Mexico up on its expansive offer of asylum. The wave of bogus asylum-seekers transiting Mexico with children in tow, or paying smugglers to transport "unaccompanied" children, began to gain steam in 2013, sparked by Obama's 2012 DACA edict, which granted work permits and Social Security numbers to young illegal aliens. In that year, only about 1,300 foreigners applied for asylum in Mexico. By 2017, the number of applicants was nearly 15,000. It doubled in 2018 and is expected to double again this year, to 60,000.
We have a bigger labor market and higher wages, obviously, but Mexico's extremely broad grounds for asylum make it an attractive Plan B for Central Americans (and Cubans, Venezuelans, Haitians, Congolese, Bangladeshis, et al.) who don't make it to the United States. It is, after all, an upper-middle-income country, the world's eleventh largest economy, with a larger share of global manufacturing output than Russia, Brazil, or Canada. A safe-third-country arrangement would lead many, many more foreigners to adopt that Plan B, forcing Mexico to choose between abandoning its humanitarian pose by tightening the rules, or inviting social and political disaster.
It is to avoid this choice that Mexico's foreign minister this week categorically rejected a safe-third-country agreement. Maybe the stick of tariffs and the carrot of additional assistance in coping with the migrant flow will lead to a change of heart. But any strategy to that end should also publicly call out Mexico for its hypocritical attempt to avoid the consequences of its own asylum policies.