WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Hans-Maximo Musielik)

20 Dec 2018 | Commentary

Forcing Asylum Seekers to Wait in Mexico Will Worsen Humanitarian Challenges on Both Sides of the Border

By Adam Isacson and Elyssa Pachico

Today, the Department of Homeland Security and the Mexican government announced that under a new policy, non-Mexican asylum seekers will be required to wait in Mexico while their case moves through U.S. immigration courts. This applies to all applicants who pass initial “credible fear” interviews, regardless of whether they entered the United States at or between ports of entry.

The Trump administration is shirking its responsibilities under U.S. and international law by forcing people seeking asylum to wait in potentially dangerous and extremely over-crowded conditions along the border in Mexico, a country which just had its most violent year on record. Many asylum-seekers will face conditions similar to those that drove them to flee their homes.

This is not the way to create a more efficient and orderly migration process at the border. All this does is create a bureaucratic, legal and humanitarian nightmare for the U.S. and Mexican governments, and for vulnerable people seeking protection.

Someone who passes a credible fear interview today routinely faces a wait of three years or more for an asylum hearing. Because the U.S. Justice Department employs only 395 immigration judges, the current backlog in U.S. immigration courts has reached 800,000 cases. Asylum-seeking families will end up waiting in Mexico for years. At least 93,000 people claimed credible fear at the U.S.-Mexico border in 2018: under the new system, Mexico would have had to absorb nearly all of them. Yet right now, Mexico’s government doesn’t even fund short-term migrant shelters, which are all run by private and religious charities (with some support from states and municipalities). How is Mexico suddenly going to support hundreds of thousands of non-Mexicans for years?

It’s highly likely that this new policy will end up getting challenged in U.S. courts. Not only does it go against U.S. and international law, it violates due process rights. How are asylum seekers supposed to access U.S.-based immigration lawyers to argue their cases before a U.S. judge, if they’re sleeping in shelters in Mexico? There’s no indication that either the U.S. or Mexico is prepared to create a system that ensures asylum seekers can access legal counsel. Asylum seekers who don’t have lawyers representing them are significantly less likely to win their cases, regardless of the legitimacy of their claims. This policy could very well see more people who otherwise qualify for asylum get deported to their deaths.

Today’s announcement leaves some other important questions unanswered:

  • Has the U.S. government committed to any steps to reduce asylum-seekers’ wait times? We see nothing in today’s announcement.
  • Has the U.S. government committed any funds to help Mexico defray asylum-seekers’ housing, medical, and other humanitarian costs? We see nothing in today’s announcement.
  • Will asylum-seekers from outside Latin America—including thousands of Chinese, Pakistanis, Bangladeshis, and Nepalese—also be forced to wait in Mexico, where they don’t speak the language?
  • What will happen to asylum seekers who tell U.S. authorities and credible-fear interviewers, “I fear for my life inside Mexico?” (An official told Vox that those who “demonstrated to a U.S. official that they feared persecution in Mexico” won’t be sent to Mexico; Vox notes that “It is not yet clear whether those claims would be held to the same standard that’s generally used to screen asylum seekers — a ‘credible fear’ of persecution.”)