What is “Country of First Asylum” and Why is Trump Trying it On Now?
***Update: A court has now temporarily blocked (enjoined) this Trump policy while its legality is adjudicated.
The Trump administration’s plans for shutting down asylum change so fast and include so many different strategies, it can be hard to keep track. According to the NY Times, now that Mexico and Guatemala have pulled out of Safe Third Country talks, the plan is to try a policy called “Country of First Asylum.” Someone in Trump-land’s been searching on Refworld! (Is this what Steve Bannon does all day in his castle in Italy? Search obscure EU and UN refugee policy papers for ideas?)
Once again, like so many news agencies, the Times has included a helpful quote from Bill Barr on asylum law. “This rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum…” he says. But if you’re not quite ready to take Bill Barr’s word on something, here is a brief run down on what it means.
From the article, it sounds like the Trump Administration will refuse asylum to anyone crossing the southern border who has not already applied for, and were rejected from, asylum in at least one country they traveled through, including Mexico. As a matter of logic, this policy makes no sense. If Mexico rejected an asylum-seeker, why should the US accept them? Is the US government saying Mexico’s asylum process can’t be trusted? But if the US is saying Mexico’s asylum system can’t be trusted, how can Mexico be a Safe Third Country?
But let’s set aside common sense for a moment and consider the law in isolation. What this law essentially says is: “Mexico can’t do asylum right, so if you’ve applied there and been rejected, you can apply here and we’ll take a second look. But you have to apply there first.” This is not First Country of Asylum. Rather, First Country of Asylum, a concept that has been much invoked (with little success) in Europe, says that if you are safe from deportation and sufficiently protected in country A, you can’t go apply for asylum in Country B. The best known application of this principle has been in the EU under the Dublin regulations. The principle rests on the assumption that all EU member states are safe places able to offer protection to refugees.
Is Mexico a safe country able to offer protection to refugees and a pathway to asylum? Is Mexico going to allow people to apply for asylum or simply deport them back over the border? If it sounds like we’re back to arguing over whether or not Mexico is a Safe Third Country, that’s because we are.
Of course, the onslaught of changes to the asylum procedures, if not the laws, have brought Trump some temporary relief. In particular, the 9th circuit has allowed Remain in Mexico to stand while they decide if its legal, an ominous sign. One wonders sometimes if judges can read, since it is totally illegal under both US and international law to send an asylum-seeker back to any country where their life or freedom may be threatened, even next door neighbors that share a border with the US.
Beyond this obvious and glaring problem, it’s pretty clear that the clause in the immigration code that the Trump Administration is relying on, the one about “contiguous countries,” doesn’t mean what they say it does. They are trying to ram through a major new asylum policy on the basis of vague wording in an obscure clause in the immigration law.
What Trump really needs is a Safe Third Country agreement with Mexico, not cliff notes asylum law written by Steve Bannon.
