The “Virtual Wall”: Mexico, Part 1

Few countries have large-scale programs to welcome lawful refugees. So instead, for almost all would-be refugees, clandestine entry into Europe, Canada, Australia, and the United States has been the only route to safety The U.S., after decades of welcoming thousands of lawful refugees from some regions, now looks more like the rest of the world, dramatically slashing the number of refugees allowed to resettle. To seek safety here, you must sneak in – a process that is getting more dangerous and subject increasingly to legal sanctions. Destination countries across the globe have installed more physical and virtual barriers to entry for desperate people from the Global South. The Trump administration’s most recent initiatives at and beyond U.S. borders have only made the situation worse.

Last summer, Just Security reported on the so-called “Safe Third Country” agreements, an effort to enlist Central American countries to become extra-territorial dumping grounds for unwanted asylum seekers. With those arrangements and other programs, the Trump administration has established its wall on the U.S.- Mexico border without putting one brick in place. It’s a virtual wall, composed of U.S. regulations, agreements with Guatemala, El Salvador, and Honduras, and the complete acquiescence by Mexico to Trump’s migration demands.

While declaring that it would never be a “Safe Third Country,” Mexico has agreed to beef up its enforcement against unauthorized migrant flows and to accept tens of thousands of returned U.S. asylum applicants to wait for their hearings in Mexico. As an observer noted, “The country itself [Mexico] has become the wall.” In the last week of January 2020, on the first anniversary of the so-called “Migrant Protection Protocols,” an agreement forcing U.S. asylum seekers back into Mexico, President Trump signed a new U,S,-Mexico-Canada trade agreement. One prominent political analyst, Carlos Heredia, explained that Mexico had traded the Central American migrants’ well-being for a deal avoiding punitive tariffs, and essentially “sold its soul.”

Mexico IS the wall

Since the beginning of his presidential campaign, Donald Trump promised a wall along the southern U.S. border. In his ideal version, it would include a moat full of crocodiles and snakes. As 2020 begins, Trump has been frustrated in his attempts to secure congressional support and start construction, but he now has a virtual wall with the cooperation of the Mexican government and new regulations in the U.S.

Trump’s virtual wall is composed of three major pieces:

  1. Mexican immigration enforcement – The Trump administration has persuaded Mexico to increase enforcement against, and deportations of, asylum seekers who enter Mexico to reach the U.S;
  2. The so-called Migration Protection Protocols – This agreement with Mexico has returned over 60,000 “metered” applicants back to Mexico, adding to the unprotected, destitute population of asylum seekers in dangerous northern Mexico;
  3. New regulations – While there are ongoing federal court challenges to some of these initiatives, the regulations would bar asylum seekers who make it to the U.S. because they had failed to apply in some other country prior to entry.

From the beginning of his term in December 2018, Mexican President Andres Manuel Lopez-Obrador (known by his initials as “AMLO”) and his Foreign Minister Marcelo Ebrard repeatedly declared that Mexico would not be a “Safe Third Country” for the U.S. In an attempt to preserve its image as a government which protects human rights, Mexico has never actually signed a “Safe Third Country” agreement. However, Mexican officials have complied with very request made by the Trump administration to contain, block, or deport Central American and “extra-regional” asylum seekers.

In June, after threats from Trump that he’d impose punitive tariffs on Mexican exports to the U.S., Ebrard traveled to Washington where he agreed that Mexico would significantly slow the flow of unauthorized asylum seekers through its territory. This was a complete reversal of AMLO’s previous policy of accommodating Central American asylum seekers – and he promised to sell the presidential jet to pay for the increased enforcement costs. By September, Mexico had achieved a 50 percent cut in the number of migrants reaching the U.S. border. AMLO abandoned completely his pledges to protect the human rights of migrants and his original INM Commissioner left his post.

Mexico’s U.S.-compliant policies have met with opposition from Mexican religious leaders and civil society organizations. Mexican human rights and migrant defense organizations, including Sin Fronteras, Instituto para las Mujeres en la Migracion, CAFEMIN, Centro de los Derechos Humanos Miguel Agustin Pro and the network of migrant shelters REDODEM have been engaged in a campaign to oppose and modify those policies, organizing meetings with government officials and holding demonstrations. In addition, Mexican and U.S. human rights organizations filed petitions and obtained hearings before the Organization of American States Inter-American Commission protesting Mexico’s violation of its international human rights agreements and its submission to U.S. interests.

What has Mexico done to stop fleeing migrants?

Mexico greatly increased patrols, arrests, and deportations by the Instituto Nacional de Migracion (National Migration Institute – INM by its initials in Spanish) and added new forces from the Army to detain and deport unauthorized migrants. In addition, the newly created 25,000-person National Guard, originally intended to improve security for ordinary Mexicans, has been deployed south to engage in enforcement against migrants.

In the first half of 2019, Mexico had been providing Central American migrants crossing the country in the so-called “caravans” with bus transportation, food, and medical care in shelters along the way, and issued them temporary humanitarian visas. However, since the summer, the Mexican government’s deployment of increased enforcement along the border with Guatemala and in the interior of the country has resulted in an increase to 134,000 arrests of unauthorized migrants in Mexico from January to September 2019, compared to 83,000 in all of 2018. As a consequence, the number of unauthorized migrants detained by U.S. authorities at the Mexico-U.S. border dropped from over 146,000 in May 2019 to around 64,000 in August.

Mexico is, according to advocates, repeatedly violating the right to “non-refoulment” of asylum seekers, despite the fact that the United Nations High Commission for Refugees (UNHCR) has provided Mexico’s asylum agency (COMAR) with resources and training. However, many asylum seekers lack access to the application process and report intimidation by INM agents who seem solely dedicated to deporting them. Even the UNHCR has sharply criticized Mexico’s failures to comply with its obligations as a State Party to the Refugee Convention and Protocol, as well as its own national laws and regulations.

Mexican immigration enforcement has always involved racial profiling. The Mexican policies have particularly impacted “extra-regional” asylum seekers, including Haitians, Congolese, Somalis, and other Africans, as well as Middle Eastern and Chinese migrants, who encounter deep-seated and institutional racism in Mexico. In October, the new INM Commissioner stated,

I’m sending a warning to all the transcontinental migrants, even those from Mars. We are going to deport you to India, to Cameroon, to Africa, you humans of the black race.

The NGO Sin Fronteras filed a complaint about the racism and xenophobia evident in this statement with the Mexican National Commission against Discrimination. In November, the INM Commissioner, under orders from the Supreme Court of Mexico, apologized to indigenous Mexicans deported to Central America. African migrants have been detained near the Guatemalan border, as Mexican authorities refuse to let them travel north towards the United States. U.S. lawyers from the Black Alliance for Just Immigration have sought support for African asylum seekers in Mexico.

Mexico has accepted thousands of U.S. asylum applicants to wait in Mexico

In 2019, Mexico agreed not only to block migrants headed for the U.S., but also to accept applicants who would be pushed back to Mexico to wait for dates for asylum hearings in the U.S. under the so-called “Migrant Protection Protocols” (MPP). Mexico has received over 60,000 Central Americans who entered the U.S. to file claims for asylum. In what seems a deliberate effort to further handicap MPP applicants, U.S. officials have begun to send asylum applicants across the U.S. border to locations in Mexico far from their initial crossing points.

Conditions for the Central Americans waiting in Mexico under MPP have been (without exaggeration) horrific. Entire families are living in makeshift camps with inadequate shelter to shield them from the cold and rainy winter conditions in northern Mexico. They have almost no access to medical care, educational services, or adequate food. Illness is rampant. They are subject to kidnappings for ransom, rape, and other assaults by criminal cartels which control many areas along the border. Numerous news outlets and non-governmental organization have documented multiple kidnappings of individuals. Once a criminal organization realizes that an asylum seeker’s family members in the U.S. (or back home in Central America) can scrape together several thousand dollars for a ransom, the released migrant is then kidnapped and held again.

The asylum seekers in limbo report losing faith, with dozens reportedly giving up on the U.S. and returning home (encouraged by the Mexican government). Other desperate parents have made the awful decision to send children as young as five across the bridge to the U.S. alone, as unaccompanied minors cannot be subjected to return to Mexico under the MPP.

The ACLU, Innovation Law Lab, and others sued to block the Migrant Protection Protocol in the spring and it was temporarily halted. However, the Ninth Circuit lifted the injunction in May; new oral arguments were held in October.

U.S. regulations bar applications from asylum seekers at the border

Even if Mexico were to reverse its cooperative attitude towards the U.S., the Trump administration has sought to insulate itself via a series of regulations from having to accept asylum claims from those who apply at the southern border. Under a new interim regulation issued in July, any asylum applicant must have made their asylum claim in any country they passed through before reaching the U.S. – and have been denied – before arriving in the U.S.

The regulation was challenged by the ACLU, the for Constitutional Rights, and the Southern Poverty Law Center. The Supreme Court allowed the regulation to go into effect after it had been enjoined by the U.S. District Court in San Francisco. Numerous amici have urged that the courts restore the original injunction.

Conclusion

Trump got his wall. The Mexicans have paid for it. But even if AMLO reneges on his cooperation due to internal pressures from human rights advocates and civil society, new U.S. regulations may block any asylum pleas coming from the south. Are we at the end of the asylum era as we knew it?

Stay tuned for a report in the coming months on the implementation of the United States’ “Asylum Cooperation Agreements” with Guatemala, El Salvador, and Honduras, which are creating an American version of Australia’s Nauru island as predicted previously in Just Security, as the U.S. government ships unwanted applicants from all over the world to have their asylum claims heard in Central America.

Image: Central American migrants -mostly Hondurans- are blocked by Mexican police forces as they reach the El Chaparral border crossing, in Tijuana, Baja California State, Mexico, on November 25, 2018. Photo by PEDRO PARDO/AFP via Getty Images

 

About the Author(s)

Susan Gzesh

Susan Gzesh is a Senior Lecturer at the University of Chicago, where she directed the Pozen Family Center for Human Rights from 2001 until 2020. She is a Non-resident Fellow of the Migration Policy Institute (MPI) and of counsel to Hughes Socol Piers Resnick & Dym (Chicago).