According to the new rules, any asylum seekers who pass through another country before arriving at the southern border – including children traveling on their own – will not be eligible for asylum if they failed to apply first in their country of transit. They would only be eligible for US asylum if their application was turned down elsewhere.
The change would affect the vast majority of migrants arriving through Mexico. Most of those currently come from Guatemala, Honduras and El Salvador, but an increasing number are from Haiti, Cuba and countries further afield in Africa and Asia.
The new rules were placed on the federal register on Monday and due to take effect on Tuesday. The American Civil Liberties Union said the rules were “patently unlawful” and said it would sue the administration to block them taking effect.
The U.S. Refugee Act of 1980 limits the right of asylum if the applicant can be sent back to a “safe third country”, but human rights advocates have pointed out that neither Mexico nor any Central American countries come close to meeting the act’s standards of a safe third country, “where the alien’s life or freedom would not be threatened”... “and where the alien would have access to a full an fair procedure for determining a claim to asylum”.
Furthermore, for a country to be considered “safe”, it would have to enter into a formal agreement with the US. In recent months, the US has sought to conclude safe third country agreements with Mexico and Guatemala, but Mexico rejected the initiative and the agreement in Guatemala was blocked on Sunday by that country’s constitutional court. The new rules published on Monday simply ignore the safe third country standard.
Mexico's foreign minister, Marcelo Ebrard, said that the new rules would not apply to Mexicans or turn Mexico into a safe third country. “Mexico doesn’t agree with measures that limits people seeking asylum or refuge,” he said.
The move represents the latest in a series of steps the Trump administration has taken to cut off the flow of migrants through the U.S.-Mexico border. Under the “migrant protection protocols”, the U.S. has required migrants to wait in Mexico while their cases are decided in US immigration courts.
“This rule will be challenged because it is contrary to the asylum statute and to U.S. obligations to refugees under international law,” Keren Zwick, a litigator at the National Immigrant Justice Center.
An Amnesty International assessment of the Mexican asylum system found it was “underfunded, absolutely beyond its capacity and inadequate in identifying even valued asylum claims” according to the organisation’s advocacy director for the Americas, Charanya Krishnaswami. The study found that Mexico sent a quarter of applicants back to the countries they were fleeing without due process.
“Those dangers make clear that Mexico would not be a safe place for the many thousands who are seeking protection at the US border,” Krishnaswami said.
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