Trump’s ‘Remain in Mexico’ Policy Is Illegal Under International Law

Trump’s ‘Remain in Mexico’ Policy Is Illegal Under International Law

Trump’s ‘Remain in Mexico’ Policy Is Illegal Under International Law

And a new lawsuit is holding the government accountable.


As the Trump administration faces public outrage and congressional scrutiny over its many immigration crises—from separated families, to abuse of imprisoned detainees, to catastrophically overburdened courts—the Trump administration’s latest fix is to just keep people from reaching the border altogether. The “Remain in Mexico” program launched by the administration at some major border crossing points in late January, forces asylum seekers to wait in Mexico, even after petitioning US border authorities for relief, while they work to process their asylum claims. The measure purports to be a less messy way of “managing” the border; in reality, it’s an illegal abrogation of US obligations under international law.

In a lawsuit brought by the American Civil Liberties Union, Tahirih Justice Center, and other human-rights advocates, several migrants who have been turned away at the border seek to challenge Trump’s rule as a massive violation of both domestic and international law.

Advocates argue that a policy of preemptively barring people from entry even after they make a legitimate plea for asylum marks a sharp departure from past border-control policies. “It’s obviously part and parcel of Trump’s policy just to stop asylum seekers from coming here,” said Judy Rabinowitz, deputy director of the ACLU Immigrants’ Rights Project. Moreover, she warned, since the administration is moving toward expanding Remain in Mexico from its current site at the Tijuana–San Diego border crossing to cover other border areas, “If this model were to take off…you’re just basically saying, asylum seekers can’t come here, and there will be refugee camps in Mexico.”

Archi Pyati, chief of policy of Tahirih, sees Remain in Mexico as part of a spectrum of brutally exclusionary policies under Trump: “Tactics such as detention, separation, prosecution, and forcing people to stay in Mexico are all designed to deter migration and…leave people fleeing persecution who need protection with nowhere to go.”

According to the lawsuit, for the 11 plaintiffs and others subjected to the Remain in Mexico policy, the government has flouted the international humanitarian standards, resulting in “asylum seekers…being returned to Mexico without any meaningful consideration of the dangers they face there.”

The policy effectively outsources the Central American refugee crisis to an unwilling neighbor that is neither responsible for the problem nor capable of absorbing it. As of February 21, 112 people had been sent back to Mexico under the program, but the administration has said that that number will “grow exponentially.” Meanwhile, with migrant families crowding into Mexico’s makeshift border shelters, often traumatized and impoverished from their grueling journey, thousands are wrestling with poverty, unemployment, and lack of stable housing.

These hardships aggravate the legal barriers of trying to collaborate with lawyers from Mexico. Because US-based asylum lawyers must struggle with preparing complex cases, and communicating remotely to prepare legal testimony, Rabinowitz says, “it’s so much more resource-intensive to go to Tijuana to meet with their clients…than if they were just going to the detention center nearby where they could just do it in the morning…This [takes] a whole day.” Human Rights First even warns that lawyers crossing into Tijuana “face the risk of high levels of violence.”

Practically speaking, resettling even temporarily in Mexico might be near-impossible for migrants without jobs or local connections. Although Mexican President Andrés Manuel Lopez-Obrador recently enacted a program to integrate Central American migrants into the local economy of border towns like Tijuana, the pull northward remains powerful for those seeking better opportunities and reunification with family members in the United States.

Meanwhile, the plaintiffs, labeled with anonymized names in the suit, testified about the dangers that forced them to become part of the migrant exodus out of El Salvador, Guatemala, and Honduras—mass violence, criminal gangs, sexual assault, and domestic abuse—as well as the threats that continue to stalk them even in Mexico.

One plaintiff, an indigenous man from Guatemala, said he was fleeing a “death squad” bent on genocide. Another plaintiff, “Bianca Doe,” fled Honduras after her life was threatened for being a lesbian. Then in Mexico, she observed that discrimination was also rife, as local people “say that gay people like me are less than human, and that it is okay to hurt us because we don’t matter.”

On the migrant trail, lawlessness drives both criminal and state violence. Plaintiff Howard Doe testified that “members of the brutal Mexican Zetas cartel kidnapped [him] in Chiapas and threatened to kill him and ‘burn’ his body.” Plaintiff Ian Doe said police had detained and threatened to jail him “unless [he] paid a bribe.”

As for the Mexican government’s promises of accommodating migrants, advocates stressed that the fear of assault or abuse meant the plaintiffs “essentially live under house arrest,” so even finding work may be practically unfeasible.

While immigrant advocates have sharply criticized the failures of the US legal system to provide due process to Central American asylum seekers, and claims frequently get arbitrarily rejected or stalled in bureaucracy, Mexico offers little hope of fair legal review. The suit argues that in Mexico the migrants are vulnerable to being unjustly deported without adequate safety screening.

One asylum seeker testified that his wife had already been deported by Mexican authorities, “despite being pregnant and explicitly stating her fear of return.”

Whether locked up by ICE or stranded in a Mexican shelter, refugees desperate to finish their journey north have no good options. “We don’t think it’s good for people to be in detention,” Rabinowitz says, “but is sending them back to Mexico?” Between the harsh, oppressive ICE detention system, and the volatile terrain in Mexico’s borderlands, the best legal outcome for the plaintiffs might simply be to get taken into federal custody, and proceed with their asylum claims from within the United States. “It’s a very dangerous situation at the border,” Rabinowitz says, and for the stranded migrants, “It’s a testament to what they face there that anybody who was a plaintiff would have to recognize that if they were to win the lawsuit, the result could be that they’d have to be in detention in the United States, and they said that they would rather do that.”

While individual refugees might be told to “remain in Mexico,” the social crises they embody won’t be contained by the borderline. The asylum seekers are only demanding a fair chance to make their case in court for starting new lives in the United States. Their cry for justice resonates across the hemisphere and can’t be constrained on the “other side” of the border, because the moral responsibility to hear them lies with us.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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