Trump Considers Applying “First Safe Country” Policy on Southern Border

The Mexico-US Border at Tijuana (Tomas Castelazo, / Wikimedia Commons)

The Trump administration is reportedly considering a policy that would bar Latin American and South American refugees who travel through Mexico from applying for asylum in the United States, requiring instead that they apply for asylum in Mexico, those refugees’ “first safe country.”

While campaigning for president in 2016, Donald Trump made immigration a central platform to his candidacy, vowing to crack down on illegal border crossings. Now, the Trump administration appears to have taken a page from the European Union’s playbook, namely a 2017 judicial interpretation of international refugee and asylum policies requiring the return of asylum-seekers to the “first safe country” they entered while fleeing from persecution in their country of origin.

The ruling issued by the European Union Court of Justice acts to crack down on what it sees as “asylum shopping” – traveling further to richer countries with more economic opportunity, rather than claiming asylum in the first safe country reached. Germany and Sweden, for instance, offer better benefits than poorer EU countries and are primary destinations for refugees fleeing to Europe despite bordering none of the countries from which refugees flee.

This policy first garnered attention in 2015 during a mass influx of refugees in Europe because of conflicts in the Middle East. Asylum courts were overwhelmed and poorer nations in the EU took on the majority of applicants, despite having fewer economic resources to do so.

Opponents of implementing a first safe country policy in the United States argue that refugees seeking asylum in the US are in grave danger while in Mexico because of violent gangs, drug wars, and human smuggling operations that seek young men and women for the sex trade. They point to episodes of violence by Mexican citizens against the massive caravans moving from El Salvador, Honduras, and Guatemala. Additionally, as is argued in Europe, critics are concerned that economically poorer countries are left to shoulder a disproportionate burden of providing asylum under first safe country, since the richest countries rarely border countries with fleeing refugees.

As signatories to the Convention Relating to the Status of Refugees, the U.N. treaty that established the rights of refugees under international law, Mexico and the United States are both obligated to ensure the safety and security of asylum seekers.

There is no law requiring immigrants to apply for asylum in Mexico. The July 2018 ruling by EU courts, however, interpreted the Convention to require asylum seekers to apply in the first safe country they enter. Migrants detained in other countries can be removed to the first country in the EU they entered. Legal advocates for refugees do not believe that this policy finds support in the Refugee Convention.

The Convention is legally-binding, but no authority exists to enforce it other than domestic courts in signatory countries. Currently, Mexico is providing aid to immigrants seeking asylum in the US and has offered asylum to Latin American immigrants, though only a fraction apply.

Asylum seekers under international law must show they “reasonably believe” that they will be persecuted in their country of origin because of race, sex, religion, political beliefs or nationality.

The Trump administration is also seeking to tighten asylum policies by requiring a stricter standard to demonstrate fear of persecution. Most asylum-seekers are rarely able to provide this elevated standard of proof of the danger. Potential witnesses in the refugee’s country of origin may be silenced, other proof existing in the country may be impossible to acquire, and the countries of origin are virtually never cooperative. Thus, opponents of a greater standard of proof claim the policy proposal is simply a deliberate effort by the Trump Administration to prevent asylum-seekers from gaining access to the United States.

In 2018, 22,491 refugees were granted asylum, less than half of the 45,000 person cap the Trump administration established. More than 733,000 cases were pending as of July 2018.

Trump has recently ordered rules established that require asylum-seekers to receive a ruling within 180 days of application. The memorandum, sent to the Attorney General and the Department of Homeland Security also requests rules that will forbid asylum seekers who enter the US illegally from being eligible to work.