What If They WERE Refugees?

By Mark Krikorian on July 22, 2014

The party line of the anti-borders Left regarding the "unaccompanied" minors surging across the border into South Texas is that they're "refugees" fleeing violence and persecution, like Syrians in Turkey or Somalis in Kenya. (This description is extended to the rest of the flow, as well, since the ostensibly unaccompanied make up well under half of the surge.) This is why they describe it as primarily a humanitarian issue not amenable to a law-enforcement response.

While Honduras, Guatemala, and El Salvador are indeed unsavory places, there's no honest disputing at this point that the flow was generated by Obama's five-year record of gutting immigration law. But let's take the anti-borders crowd at its word and accept for the sake of argument that the Central Americans represent a refugee flow.

They still should be turned away.

Why? Because they traveled more than 1,000 miles through a country where they should have claimed asylum, if they were genuinely seeking it.

The 1951 Convention Relating to the Status of Refugees includes this provision (my emphasis):

Article 31 – Refugees unlawfully in the country of refuge

  1. 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 in the sense of article 1, 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.

That means that an illegal alien can't be barred from applying for asylum simply because he snuck across the border or overstayed a visa. But as the bolded text notes, that's only the case for the first safe country the refugee enters. He shouldn't even be allowed to apply for asylum if he passed through other countries. Asylum is for people willing to go anywhere to get out of where they are; just as a drowning man doesn't pick and choose among life preservers he sees in the water, a genuine asylum-seeker doesn't pick and choose among countries. (I'm using "refugee" and "asylum-seeker" in the colloquial sense of people fleeing their countries for non-economic reasons. In U.S. law, they're pretty much the same except that a refugee is someone fearing persecution who's currently abroad and asylum is for the same people but who are already here, usually as illegal aliens.)

If the Central Americans surging into South Texas are seeking asylum, they have an obligation to seek it in Mexico, rather than traverse the entire length of that country's territory to reach someplace with a more fully developed welfare state where they already have relatives. Mexico's per capita GDP is well over double that of the any of the three countries in question (triple that of Honduras). What's more, not one of Mexico's states bordering on Central America (Chiapas, Tabasco, Campeche, Quintana Roo) is subject to a State Department travel warning. If the State Department says it's safe for Americans to travel to those places, why wouldn't we expect Central Americans to be safe there as well?

Unfortunately, under current law an asylum-seeker who traversed other countries ("safe third country" is the term of art) can only be turned away "pursuant to a bilateral or multilateral agreement," which we have only with Canada. This suggests that if the Left is correct in its fanciful claim that the border surge is really a refugee flow, then the statutory change that's needed (instead of Senator Cornyn's counterproductive HUMANE Act) is to bar outright any asylum claim from someone who passed through a third country where he should have made that claim first.