Most migrants at border with Mexico would be denied asylum protections under new Trump rule

Most migrants who travel by land to enter the United States from the Mexican border will be denied asylum protections according to plans the Trump administration announced Monday. The new rule was expected to be immediately challenged in court.

The rule goes into effect Tuesday. It is one of the broadest attempts by the Trump administration to restrict asylum, and was announced after the president of Guatemala backed out of a meeting at the White House that had been set for Monday to discuss a similar policy.

Under the plan, migrants who failed to apply for asylum in the first country they passed through on their way to the southwest border of the United States would not be protected. It would significantly affect a majority of asylum-seeking Central American families who are fleeing persecution and poverty who have tried to enter the United States at its southwest border in record-high numbers this year.

The administration has for weeks been pushing Guatemala’s government to sign a “safe third country” agreement, which would require Hondurans and Salvadorans to apply for asylum in Guatemala instead of applying for protections in the United States.

Hours after the rule was released, the American Civil Liberties Union said it “could not be more inconsistent with our domestic laws or international laws.” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said the rule undercut Congress’ commitment to asylum protections.

“The Trump administration is trying to unilaterally reverse our country’s legal and moral commitment to protect those fleeing danger,” Gelernt said in a statement. “This new rule is patently unlawful and we will sue swiftly.”

The rule would effectively limit asylum protections to Mexicans and those who cross the United States’ southwest border by sea.

Migrants would still be allowed to apply for asylum at the southwest border if they have proof that they applied and were denied the protections in at least one country they travelled through.

Those who can demonstrate they were a “victim of a severe form of trafficking,” will also be allowed to apply for asylum, according to a statement by the Department of Homeland Security. It was also published by the Justice Department.

“This rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum,” said Attorney General William Barr. “The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border.”

The new rule is the administration’s unilateral attempt to force migrants to apply for asylum in countries south of the United States. The Trump administration has tried for months to get Mexico and Guatemala — the two countries along the route from Central America to the United States — to sign agreements that would force migrants to apply for the protections from those two countries.

These agreements would slow the flow of asylum-seekers who cross the United States’ southwest border to a trickle because most of them are from Guatemala, Honduras and El Salvador. An agreement with Guatemala would force Hondurans and Salvadorans to seek asylum in that country, while an agreement with Mexico would force Guatemalans to wait out that process in Mexico.

As part of the deal that averted tariffs last month, Mexico and the United States also signed an opaquely worded “supplementary agreement” that seemed to open the door for the agreement.

The sides agreed that should the agreement’s enforcement measures fail, by late July, to “sufficiently” reduce the number of migrants trying to cross the southwest border of the United States, the governments would begin discussing a bilateral agreement that might include the deal, known as a safe third country agreement. Arrests at the southwest border dropped by 28% in June, the first time this year that the number of border crossings declined.

Guatemalan officials for more than a month have been giving mixed signals about negotiations for a safe third country agreement with the United States.

On Thursday, the news leaked that President Jimmy Morales of Guatemala was planning to fly to Washington, leading to speculation that he would sign a safe third country agreement Monday. The government had not announced the trip nor provided any details of a safe third country agreement.

The reaction was swift. Three former foreign ministers and a former ambassador to the United Nations asked Guatemala’s constitutional court for an injunction against a safe third country agreement, arguing that its Congress should approve it first. The court quickly agreed to consider their petition as well as two more filed by the country’s human rights ombudsman and a former presidential candidate.

It was incomprehensible to many why Morales would agree to a safe third country agreement when he has only six months left in office.

“Nobody put a gun to his head,” said Edgar Gutiérrez, one of the former diplomats who sought the injunction before the court. “He offered it.”

Gutiérrez said that about 1,000 migrants pass through the country every day and that forcing them to stay in Guatemala would make the country “an enormous concentration camp.”

He also expressed doubts about whether such an agreement would even work.

“Guatemalan institutions have no capacity,” he said. “They can’t control the prisons, how do they have the capacity to control 700 kilometers of border?”

Despite the Trump administration’s pursuit of a safe third country agreement, the State Department has said publicly that Guatemala was not up to the task of processing and providing for refugees. In its most recent human rights report, the State Department said that “migration and police authorities lacked adequate training concerning the rules for establishing refugee status.”

On Sunday morning, the Guatemalan government announced that the trip had been suspended to await the court’s decision. Rather confusingly, it denied that there was any plan to sign a safe third country agreement — even though that was the only issue before the court.

On Sunday evening the court ruled that it was unconstitutional for Morales to sign an agreement without approval from the Guatemalan Congress. Morales has disobeyed court rulings in the past, but the court’s unequivocal language and the widespread opposition appeared to have taken any deal off the table.

c.2019 New York Times News Service