While Recognizing the Danger the Mexican Cartels Pose to US Citizens, Trump Ignores the Same Danger Posed to Asylum Seekers Forced to Remain in Mexico

A few years ago, my cousin was looking forward to her first trip to Mexico.  I asked if she bought her kidnapping insurance yet. She laughed, but then noticed I was being serious. She looked at me and said “That’s not a thing, is it?”  I told her to look it up.  A few days later, she called me absolutely surprised that kidnapping insurance existed for people taking trips to Mexico.

I don’t mean to impugn all Mexican people.  But we cannot pretend that all areas of Mexico are safe. The sad reality is that criminal organizations known as the cartels dominate the northern areas near the border with the United States.  Their main goal is to profit off of the illicit drug trade with the United States.  But they have their hand in any potentially lucrative criminal enterprise.

As an immigration lawyer, when you listen to your client’s stories of how they braved the cartels, you instantly feel anger, sadness and admiration at the same time.  Anger that such powerful and dangerous forces of evil exist.  Sadness that living with this evil is the reality for people who just want to escape the violence of street gangs in their home country.  And admiration that your clients faced this evil, and survived.

A Central American migrant simply cannot plan to journey north without considering the hold the Mexican cartels have over illegal border crossings.  Typically, a migrant hires a guide, known as a “coyote,” to lead them on their journey.  The coyote supposedly knows the terrain and how best to navigate the many obstacles that exist before reaching the border.  But each coyote is associated with one of the Mexican cartels.  The cartels have the territory just south of the border carved out.  If a coyote strays into territory belonging to a rival cartel, it can mean extortion, and even death to those is his group.

But even traveling through the territory controlled by the cartel associated with their coyote is not necessarily a guarantee of safety.  Coyotes have been known to lead groups of migrants right into the hands of cartel members, armed with automatic weapons, who in turn beat, rape and rob the migrants just when they reached the border.  Female clients of mine have told me that they expect this, and for that reason start taking birth control pills before their journey.  Women who are naive have wound up pregnant as a result of the rape.  Indeed, it has been reported that cartel members hang the underwear of their rape victims on trees, called rape trees, as a sign of their power.

At times, the cartels will kidnap the migrants trying to seek safety in the United States.  They may hold migrants for ransom. They may force females to satisfy their sexual desires, and do the cooking and cleaning for the cartels.  They may sell the migrants into slavery.

President Trump recently recognized the danger present in northern Mexico because of the cartels.  After nine members of a family of US citizens were murdered by the cartels, Trump tweeted an offer of US assistance with cleaning up the cartels to Mexican President Andrés Manuel López Obrador.  

But while Trump recognizes the danger the cartels pose to US citizens (the victims of the cartel violence were related to Mormons who settled in Mexico after the Church of Jesus Christ and Latter Day Saints abandoned the practice of polygamy in 1890, and maintain dual Mexican-American citizenship), he ignores the same danger those cartels pose to Central American migrants he has forced to wait in Mexico while their asylum applications pens in US Immigration Court. 

Last Winter, the Trump Administration began its “Remain in Mexico” program, also known as the Migrant Protection Protocols or MPP.  Not wanting the migrants to stay in the United States while their asylum cases worked their way through court, Trump reached an agreement with the Mexican Government permitting asylum seekers to remain, temporarily in Mexico, only permitted into the United States when there were court hearings in their cases.  But the migrants would live in the very area of Mexico dominated by the cartels.

Already, it has been reported that migrants have been kidnapped by the cartels, as soon as they return to Mexico after a court hearing.  Nonetheless, keenly aware of the danger the cartels pose, the Trump Administration continues to force asylum applicants to face this danger, rather than permit the applicants to be released on bond within the United States.

As has often been argued, it is the cruelty of the Trump Administration towards migrants fleeing violence at home that is the point of the policy.  By demonstrating to potential migrants that the United States will compel them to live in dangerous situations while waiting for a decision on their asylum applications, which can often take years, the Administration hopes to disuade migrants from making the trip north. 

Whether such cruelty works as a deterrent to asylum seekers is questionable at best.  When the cruelty of ripping children away from their parents who crossed the border was the official policy of the Trump Administration, the number of Central Americans seeking the safety of the United States only increased significantly.  So far, in 2019, CBP statistics show a large increase of apprehensions at the border as compared to last year, despite the implementation of the MPP.

By:  William J. Kovatch, Jr.

Trump’s “Remain in Mexico” Plan is Bad Policy Lacking Legal Authority

Confusion reigned over the weekend, as the Trump Administration announced it had reached a deal with the incoming Mexican Government concerning asylum seekers, only to have the incoming Mexican Government deny it. Under the alleged deal, labeled “Remain in Mexico,” Trump claimed that potential refugees from Central America could apply for asylum in the United States at ports of entry, but would remain Mexico until a final decision had been reached on the asylum application. 

Critics of the alleged deal claimed that it would leave the potential refugees in danger, as the Mexican border states are dominated by the Mexican cartels. The incoming Mexican Government noted that it was reluctant to permit Mexican territory to become a holding grounds for people seeking admission to the United States. 

Whatever the merits of the proposed plan, the question remains whether it is even legal under US law. Reading the US Immigration and Nationality Act as it pertains to asylum applications shows that it isn’t. 

Section 208 of the Act permits an individual to apply for asylum upon arrival to the United States. When an individual expresses an intent to apply for asylum, or a fear of persecution, Section 235(b)(1)(A)(ii) requires  immigration officials to refer the individual to an Asylum Officer for a credible fear interview. Pursuant to section 235(b)(1)(B)(ii), if the Asylum Officer determines that the individual does have a credible fear of persecution, that individual must them be detained by the US Government, for further consideration of the asylum application. Section 236(a) then gives the US Government the option to continue detention, or to release the individual, either on bond or under conditional parole.

Although Section 235(b)(2)(C) permits the Government to return a person arriving by land from a country contiguous to the United States back to that country pending removal proceedings, the language of the statute exempts aliens who are eligible for expedited removal from this provision. An alien without documentation or who attempts to enter based on fraud is eligible to be removed by an immigration official without placing that alien in formal removal proceedings. That is expedited removal. Almost all of the aliens arriving at the U.S.-Mexico border from Central America will be eligible for expedited removal.

This, pursuant to the statute, Congress only gave the Executive Branch two choices when it comes to a person applying for asylum at a port of entry. If the person passes the credible fear interview, the US Government can either detain that person, or release that person into the United States. There is no provision under US law to permit the Government to ship an asylum applicant off to another country while the United States considers the asylum application. Put simply, if a person shows up at a port along the Mexican border and claims fear, the United States cannot force that person to remain in Mexico until the asylum application reaches its conclusion. 

“Remain in Mexico” lacks legal authority. Moreover, it represents an attempt to push off on Mexico the responsibility of hosting Central American asylum seekers looking for protection in the United States. It is bad policy risking a deterioration of US relations with its southern neighbor. 

By: William J. Kovatch, Jr.