Why Trump’s deal with Mexico is doomed: Jungles, judges and Democrats

President Donald Trump and the Mexican government have reached an agreement on dealing with the dramatic increase in migrants moving from Central America through Mexico to the United States, a migration that has created a humanitarian and security crisis at our border.

Mexico probably won’t be able to provide as much help as Trump is expecting, and their agreement will face serious legal challenges. But Democratic opposition to meaningful border security measures hasn’t left the president with any good alternatives.

Agreement

Mexico will use its National Guard to curb irregular migration throughout Mexico, giving priority to its southern border with Guatemala. 

The United States will expand the Migrant Protection Protocols (MPP) program across its entire border with Mexico. Undocumented migrants crossing our southern border to seek asylum will be returned to Mexico to wait for a hearing on their asylum claims.

The United States and Mexico also agreed to work on establishing safe third country agreements.

National Guard

Mexican President Andrés Manuel López Obrador recently created a 60,000-man National Guard to confront organized crime and curb soaring violence in Mexico. Six-thousand of them have been deployed to secure its southern border with Guatemala. 

Todd Bensman has first-hand knowledge of this border from when he was reporting on the human smuggling industry in Guatemala. 

Bensman is skeptical about whether the National Guard will be able to secure this 541-mile border: “Smuggling works much like rain water; it will find every leak in your roof and get in.”

The smugglers will be able to move migrants across the border in areas that are not heavily patrolled — such as mountainous jungle areas — and they will use ships to carry migrants along the shoreline of the Pacific Ocean to the largely uninhabited Mexican coastline.

Migrant Protection Protocols

On Dec. 20, 2018, DHS announced that asylum-seeking aliens arriving in or entering the United States from Mexico — illegally or without proper documentation — may be returned to Mexico for the duration of their immigration proceedings.

Too many migrants have been gaming the system with meritless asylum claims to get into the United States. Nine out of ten of their asylum applications are denied. 

Authority to return migrants to Mexico comes from section 235(b)(2)(C) of the INA, which provides that aliens who arrive by land from a foreign territory contiguous to the United States, and are put in removal proceedings, may be returned to that territory to wait for their hearings.

Organizations that provide asylum-related legal services have challenged the MPP in a Ninth Circuit federal district court. They claim that MPP does not apply to applicants for admission who can be put in expedited removal proceedings (possibly most of them), and that DHS has violated the Administrative Procedure Act by implementing the MPP program without promulgating regulations.

It’s too soon to predict the outcome of this case, but Trump has not had much luck in the Ninth Circuit.

MPP may have to be abandoned even if the legal challenges fail because the average wait for a hearing is too long. It was 922 days as of the end of May.

Safe Third Country 

Section 208(a)(1) of the INA provides that any alien who is physically present in the United States may apply for asylum. The next paragraph, however, provides a safe third country exception.

The right to apply for asylum does not apply to an alien who may be removed from the United States pursuant to a bilateral or multilateral agreement to a country where:

(1) His life or freedom will not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and

(2) He will have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.

If the United States enters into such an agreement with Mexico, aliens who can be sent there will be ineligible for asylum in the United States.

According to Human Rights First (HRF), Mexico does not meet “safe third country” legal requirements. Refugees are not safe in Mexico. This is a problem with the MPP program too.

HRF’s safety concern is supported by the fact that President Obrador created a 60,000-member National Guard to confront organized crime and curb soaring violence in Mexico, and by the State Department’s Mexico Travel Advisory. Depending on location, the warnings range from Level 2 (Exercise Increased Caution) to Level 4 (Do Not Travel). Five states have Level 4 ratings.

The “safety” requirement for safe third country eligibility refers to safety from threats on account of one of the enumerated grounds, but I will be surprised if Ninth Circuit courts approve of safe third country agreements with “dangerous” countries.

HRF claims that Mexico can’t meet the second requirement either. Deficiencies, barriers, and flaws in Mexico’s asylum system would prevent asylum-seekers from receiving a full and fair asylum proceeding. The Ninth Circuit courts are likely to accept this argument as well.

Although it is apparent that this deal won’t end the crisis at our southern border, it is the most Trump can do at this point. 

Section 7 of the U.S. Constitution provides that, “All Bills for raising Revenue shall originate in the House of Representatives…” 

The Democrats control the House of Representatives, and they won’t give Trump the funds he needs for effective border security measures, or make needed changes in the INA.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him on Twitter @NolanR1