Trump’s Move to End Most Central American Asylum Claims: First Safe Country Explained

U.S. Customs and Border Patrol officials wait to hand a group of asylum-seekers over to Mexican migration officials as they are returned to Mexico under the so-called Remain in Mexico program, on the international bridge between Laredo, Texas, and Nuevo Laredo, Mexico, Wednesday, July 10, 2019. A U.S. policy to make asylum seekers wait in Mexico while their cases wind through clogged immigration courts expanded to the violent city of Nuevo Laredo Tuesday with the arrival back of a first group of migrants, one day after they had been permitted to cross the border and apply.(AP Photo/Salvador Gonzalez)

In May, the Trump Administration reportedly began considering a policy that would bar Latin American and South American refugees who travel through Mexico from applying for asylum in the United States.

Now the Administration is looking to go forward with the policy.  On Monday, the Department of Homeland Security and the Department of Justice said in a joint statement that the Trump administration will publish an interim final rule to drastically curtail US asylum access for refugees traveling through Mexico to reach the US southern border.

Homeland Security Acting Secretary Kevin McAleenan said in a statement that “Ultimately, today’s action will reduce the overwhelming burdens on our domestic system caused by asylum-seekers failing to seek urgent protection in the first available country, economic migrants lacking a legitimate fear of persecution, and the transnational criminal organizations, traffickers, and smugglers exploiting our system for profits.”

The policy is internationally known as “first safe country.”  Under a first safe country policy, refugees must seek asylum in the first safe country they reach.  Refugees seeking asylum in a subsequent safe country are returned to the first safe country pending a review of their application for refugee status.

Among western countries, the policy is not uncommon.  The European Union, for example, largely follows a first safe country policy.  In a 2017 decision, the European Union Court of Justice ruled that refugees in the EU must seek asylum in the first EU member state they enter.  The Court’s opinion reaffirmed The Dublin Regulation, an EU law that has been in effect since 1997.

First safe country policies, such as the regime currently implemented in the European Union, act to crack down on what those governments see 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. 

US officials have echoed these concerns.  Attorney General Bill Bar said in a statement Monday that “this rule will decrease forum shopping by economic migrants and those who seek to exploit our asylum system to obtain entry to the United States.”

Refugee advocates, such as the Center for Immigration Studies, see the opposite problem.  According to CIS, the EU’s first safe country policy “penalizes those countries within its membership who have the unique misfortune to be on the front lines of the EU’s external borders — while leaving untouched Germany.” 

The same could be said of asylum policy in the Americas.  The United States does not share a border with any ailing countries that produce refugees in large numbers and so a first safe country policy would insulate the US from the international burden-sharing envisioned by the Refugee Convention.  A first safe country policy in the US would put the burden on Mexico for having the unique misfortune of being the first safe country for refugees in some of the most dangerous countries in the world.

The Washington Post reported that “Administration officials point to the relatively low number of Central American applicants who are ultimately granted asylum by the courts — fewer than 20 percent — as evidence that a majority of their claims are without merit.”

Issues of proof inherent in seeking asylum, however, might be more to blame than meritless applications.  Asylum-seekers are rarely able to meet the high standard of proof required to show actual 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 in US inquiries.

The US policy change announced Monday is certain to meet legal challenges from advocacy organizations in the US.  The US Immigration and Nationality Act, the federal statute governing US immigration and asylum law, contains broad provisions allowing foreigners who reach the US to apply for asylum if they meet the international definition of a refugee.

Lee Gelernt, an attorney for the American Civil Liberties Union, said the organization would seek an immediate injunction to stop the policy from coming to effect, calling it “patently unlawful.”