I’m shocked, and for once it’s the good kind of shocked. Read yesterday’s post for background if you haven’t already. How on earth did the White House convince Mexico’s new populist left-wing president to go for this?
According to outlines of the plan, known as Remain in Mexico, asylum applicants at the border will have to stay in Mexico while their cases are processed, potentially ending the system Trump decries as “catch and release” that has until now generally allowed those seeking refuge to wait on safer U.S. soil.
“For now, we have agreed to this policy of Remain in Mexico,” said Olga Sánchez Cordero, Mexico’s incoming interior minister, the top domestic policy official for López Obrador, who takes office Dec. 1. In an interview with The Washington Post, she called it a “short-term solution.”…
U.S. officials involved in the talks said Mexico has not asked for financial assistance to implement the new procedures, which could result in significant costs if asylum seekers are made to wait for months or years. They described the deal as a collaboration, and senior officials from both governments insisted it was not imposed upon Mexico.
The status quo: An asylum-seeker surrenders to U.S. authorities, they apply for asylum, and they’re either detained while they wait or, given the paucity of detention facilities, they’re released into the United States with orders to show up for their asylum hearing. Some will, some won’t. The new process: An asylum-seeker surrenders to U.S. authorities, they go to the federal courthouse for an initial asylum hearing, and if the judge doesn’t rule then and there then they go back over the border to Mexico to wait for a determination. No more catch and release.
What’s the catch, though? If we’re not bribing Mexico to do this, what’s in it for them? Hmmmm:
A group of business leaders in [Tijuana] said they have thousands of job openings at the city’s assembly plants, or maquiladoras, inviting Central American migrants to work in the factories. Though wages there are a small fraction of U.S. pay, Mexican officials said the work offer was one reason they believe the Remain in Mexico plan will succeed. Across the country, there are 100,000 jobs available to Central American asylum seekers, officials said.
Is that what this is about, Mexico’s business class wanting to enjoy some cheap foreign labor like their American counterparts across the border? It’s a type of guest-worker policy: Thousands of immigrants are in town temporarily waiting for their asylum determination in the U.S., and are no doubt willing to work for peanuts to survive while they wait. One way or another, either via admission by the U.S. or deportation after their asylum claim is rejected, there should be plenty of turnover to keep the labor supply cheap and desperate.
Two cautions, though. You might remember this from yesterday’s post, Section 235 of the Immigration and Nationality Act:
(ii) Referral of certain aliens.-If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.
Is the “Remain in Mexico” policy even legal given the requirement that applicants be detained while their application is pending? The White House will argue it is — if “catch and release” is legal, why wouldn’t “catch and release in Mexico” be legal? Amnesty activists will argue it isn’t. Mexico is too dangerous! The U.S. owes applicants some measure of safety and security while they await a verdict. They won’t get that in Mexican border states.
There’s another part of the INA that complicates this. Section 208, addressing asylum:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b).
Is the caravan really going to end up stuck across the border thanks to the “Remain in Mexico” policy — or are they just going to change their plans from surrendering to U.S. officials at a port of entry to sneaking across the border illegally somewhere and surrendering to the Border Patrol when they’re caught? You can see now why the White House wants a new policy that limits valid asylum claims to only those immigrants who surrendered at a port of entry. The whole point of the “Remain in Mexico” policy is to bottle up asylum-seekers on the other side of the border. If they can cross into the U.S. illegally and still lawfully apply for asylum once they’re here then many of them will do that.
You can also see, though, why Trump lost in the Ninth Circuit a few days ago. The statute is clear: If you’re in the U.S., “whether or not at a designated port of arrival,” you can apply for asylum. Doesn’t matter how you got there. If the White House doesn’t like that, Trump should dial up McConnell and Ryan and have the law tweaked in the Republican Congress’s waning days. Good luck getting around a filibuster in the Senate by the open-borders party, though. Is there anything POTUS could offer Schumer and Pelosi next year to get them to agree to a change in the law here? Maybe a DREAM amnesty in exchange for wall funding and legislative backing for the “Remain in Mexico” policy?
Exit question: Has Mexico agreed to accept *all* asylum-seekers who enter the U.S. from their territory while they await their asylum judgment or only those who enter the U.S. at a port of entry? That is, if the caravan suddenly detours and crosses illegally en masse somewhere on the California border, do they go back to Mexico or is the U.S. stuck detaining them?
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