Remain in Mexico: A Dangerous and Untenable Proposal

Published   on November 30, 2018

Extreme violence by gangs and narco-traffickers, pervasive sexual-and gender-based violence, and horrific abuse have forced thousands of children to flee Central America in search of protection that their countries cannot or will not provide. Efforts to address this humanitarian crisis have focused largely on deterrence and heightened enforcement instead of meaningfully addressing the conditions that drive the forced migration from the region.

The Trump Administration is reportedly negotiating a policy that would not allow individuals into the United States to request refugee protection. Instead, families and children seeking asylum would be required to remain in Mexico while pursuing their claims for protection. The “Remain in Mexico” proposal is a dramatic departure in U.S. policy toward those seeking protection in our country, fundamentally upends U.S. refugee and asylum policy and practice and places already vulnerable children at a greater risk for harm. The plan would also set an enormously dangerous precedent worldwide by requiring individuals to seek asylum protection from an unsafe third country in violation of Article 33 of the Refugee Convention.[1]

It is not safe to wait in Mexico

It is not safe for vulnerable children and families to wait in border towns while their cases are processed. Children and families fleeing threats to their lives and safety are frequently targeted throughout their journey and face significant risk of extortion, trafficking, kidnapping, and sexual assault in Mexico because these areas are frequently controlled by or the site of ongoing conflict among criminal gangs, drug traffickers and cartels, and law enforcement.[2] A 2017 study reported 5,289 crimes against migrants in Mexico, more than 900 of which were committed by government officials.[3] Sexual violence against migrant girls is highly normalized in Mexico and often deemed part of the “price” girls pay for migrating.[4]

 

Mexico Lacks Capacity to Safely Care and House Children Seeking Asylum in the U.S.

The Remain in Mexico plan raises grave concerns about where and under what conditions children and other asylum seekers would be housed while awaiting proceedings and decisions in their legal cases. It is not clear how the plan would be implemented, including where children and others would be housed and for how long. Prolonged detention or homelessness are unacceptable conditions for vulnerable populations.

Under Mexican law, unaccompanied migrant children may not be detained in immigration detention facilities and instead must be transferred to the care of Mexico’s National System for Integral Family Development (DIF).[5] Despite this law, Mexico detained nearly 70 percent of migrant children in immigration detention facilities in 2016. These facilities fail to address the unique needs of children, are frequently overcrowded, unsanitary, and lack access to basic education and recreation.[6] The detention of children in these or similar facilities, potentially indefinitely, would exacerbate the trauma of children who have survived horrific violence and abuse. The safety and well-being of asylum seekers may be compromised in Mexico outside of detention, as they are likely to be preyed upon by violent gangs, narco-traffickers and other criminal groups because of their extreme vulnerability.  The governments of Mexico and the United States have not detailed how they would ensure adequate protection, nutrition, education and housing for asylum seekers for the duration of their cases in the United States.

The appropriate care and treatment of unaccompanied children is critical and has been specifically prioritized by Congress through the Trafficking Victims Protection Reauthorization Act and the Homeland Security Act of 2002 with the recognition of the unique vulnerabilities of these children. The Remain in Mexico proposal fails to account for the important substantive and procedural protections in these laws and in fact, violates specific provisions Congress required in the statute. Congress specifically mandated that unaccompanied children be admitted and placed into formal removal proceedings.

 

The Policy Violates the Constitutional Guarantees of Due Process.

In addition to screening concerns, requiring children and families seeking asylum to prepare their legal cases from detention in Mexico poses significant barriers to due process.  Detention, even in facilities in the United States, creates numerous hurdles for the cases of asylum seekers, including restricted visitation, difficulties accessing and securing needed documentation, experts and evidentiary support, and limited access to legal services providers. Indefinite confinement also compounds the trauma of survivors of violence, abuse, and neglect, and may frustrate asylum seekers’ ability to reveal sensitive and painful experiences that form the basis of their asylum eligibility.

This proposed policy further exacerbates attorneys’ ability in the United States to build a legal case for a client held in Mexico.  It is unclear how attorneys in the United States would be able to work in and access their clients in Mexico-if at all. Moreover, legal services capacity in Mexico would be insufficient to address these needs or to ensure the provision of accurate legal information and preparation of cases in accordance with U.S., rather than Mexican, law. Cases would be similarly difficult to prepare from the United States, with only limited ability to consult with and interview clients in person. These barriers are especially problematic for unaccompanied children, who experience unique difficulties in preparing their cases due to their age, limited understanding of legal procedures, fear, and prior trauma. Without quality legal representation, unaccompanied children and other asylum seekers will be unable to fully present their cases for protection, and as a result, may be returned to harm, danger, or death.

The United States must not implement a “Remain in Mexico” scheme that would not only obliterate due process for children and families seeking protection, but  would represent a  historic and dramatic departure from international protection standards put into place after World War II to ensure the horrors of that period would  never happen again and that we would not send people, including children, back to grave harm or death.

 

For any questions please contact: Jennifer Podkul, jpodkul@supportkind.org (202) 824-8692

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[1] https://www.unhcr.org/3b66c2aa10

[2] Human Rights First, Dangerous Territory: Mexico Still Not Safe for Refugees (July 2017), at 3.

[3] Dangerous Territory, at 4.

[4] Kids in Need of Defense & Human Rights Center Fray Matias de Cordova, Childhood Cut Short (2017), at 35.

[5] DIF is the child protection branch of the Mexican government: https://www.gob.mx/difnacional

[6]Human Rights Watch, Closed Doors Mexico’s Failure to Protect Central American Migrant and Refugee Children (2016), available at: https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-refugee-and-migrant-children#6451b4.

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