America looks for better legal ways keep migrants out. Will the migrants care?

Sunday, November 25th, 2018
By: Jonathan MontagJ.D.

What an amazing story for Thanksgiving, a missionary killed by a bow and arrow on the Indian island of North Sentinel in the Andaman Sea by a hunter-gatherer society untouched by outside culture. Untouched because India is enforcing the USS Enterprise’s primary directive – not to interfere with the internal and natural development of alien civilizations. See, Starfleet General Order 1.

This Thanksgiving, while we celebrated indigenous American Indians’ friendship with European settlers, a story unfolded of an indigenous people rejecting such a model. It is as if they saw what happened to indigenous American culture and said, “No thanks,” with bows and arrows. Of course, the Sentinelese do not know of the American Indian experience and are not reacting to lessons learned because they are illiterate hunter gatherers isolated from everything – history, news, technology, health care, chocolate and everything else that is bad and good in modern civilization.

At first blush, it seems progressive that India would allow this museum piece of living human beings to exist. If anthropologists and sociologists could observe the society, it might be very informative, but assuming that the isolation isolates them from us as much as us from them, we aren’t learning anything, but, still, how refreshing to just leave people alone. On the other hand, what if they are torturing each other? What if people are suffering and dying of easily-curable diseases? What if they all need glasses? And what, as the dead missionary, John Allen Chau, was concerned about, their souls? Modern countries with indigenous populations struggle, ethically and financially, with how to help their indigenous communities while respecting their ways, particularly when their ways are horrifying.

At the same time, Thanksgiving was the backdrop for another story – the caravan, or, rather, migrants coming to the United States fleeing the depravities of their modern Central American societies – corruption, crime, gangs, climate-change-induced drought…. On a day of celebrating the welcoming of the immigrant (Pilgrims), this country is closing its doors to foreigners. Is this a noble protection of our way of life, like the Sentinelese, or a betrayal of one of America’s claims to fame, being a refuge for huddled masses, wretched refuse, the homeless, and tempest-tost?

As an aside, if you want to understand better that America’s claim to fame about being a land of welcoming to immigrants, watch recent American Experience documentaries about the Chinese Exclusion Act and Eugenics and you will be dissuaded of any such ridiculous notions. Also, watching these documentaries, you will also be dissuaded of the notion that our federal government is at its nadir. There is a lot more low to go. We have barely scratched the surface.

As part of its continued scratching, this holiday weekend the Trump administration and Trump himself announced plans to have asylum seekers remain in Mexico while seeking asylum. It seems his people, instead of thumbing through the Immigration and Nationality Act and coming up with marginally-legal ways of thwarting immigration (Muslim bans, asylum bars), have found helpful statutes to implement new plans. None is new. Some were in place when President Trump took office and he canceled them.

First, the idea of having people seek refuge in the United States from abroad. Until recently, America had a rather robust refugee program where people sought refugee protections from abroad. Old timer students of immigration policy know that most former Soviet refugees to the United States did not take ships to Mexico to seek refuge in the United States, but rather, got awarded refugee status by U.S. authorities in Rome or Vienna and then came here. Vietnamese boat people went to Malaysia and the Philippines to get asylum, not to San Diego or Long Beach harbors. Many Syrians came through Jordan, not San Ysidro or Loredo. In fact, President Obama instituted a program to let Central Americans apply for asylum in their home countries rather than trek to the border to try to avoid alleged turmoil at the border and even allow for some family unification processing from abroad. President Trump ended it.

So of course, if the mountain won’t come to Tegucigalpa and Guatemala City, then Tegucigalpa and Guatemala City will come to the mountain. Thus, the migrants come to our borders. The newest idea is to have the applicants seek asylum from the Mexican border. Apparently, the plan is to give credible fear interviews at the border and if the asylum seekers prevail, then they would be sent to an immigration judge, also presumably at the border, to decide the case. All the while, the applicant will stay in Mexico. As the game plan appears to be to stop asylum seekers from waiting for court hearings in the United States, thus disincentivizing seeking asylum here, few additional immigration judges, I predict, will be brought to the border, meaning waits for a hearing will be months and, likely, years.

This too was tried before. In the early 2000’s, when Chaldeans were streaming to Tijuana, asylum applications were entertained at the U.S. – Tijuana border.  That program broke down when Mexico started arresting the asylum seekers.

The Immigration and Nationality Act allows for non-citizens to wait outside the country for their hearings. At INA § 235(b)(2)(c), the Act states:

Treatment of aliens arriving from contiguous territory. In the case of an alien described in subparagraph (A) [a person not clearly ineligible to enter the United States] who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 240 [removal proceedings].

The statute obviously envisioned it being Mexicans waiting in Mexico and Canadians waiting in Canada, and not people from all over the world waiting in Mexico. To make Mexico America’s asylum waiting room, the United States would need Mexico’s agreement, which one would have considered unlikely. Mexico certainly did not countenance Mexico as the waiting room for Chaldeans. But now, reports are that the Mexicans will agree to it.  One wonders what they could possibly get for it?

With Mexico in the midst of a drug war, hobbled by corruption and crime, gang-related and otherwise, and with endemic poverty, it is not a place one would consider a safe waiting room. Yet, there are reports that Mexico is now a land of plenty where these Central Americans can thrive as happily as larks. The San Diego Union Tribune reports:

On Thursday morning, maquiladora executives gathered at a hotel near the Otay Mesa border crossing to learn the steps to hiring Central Americans for thousands of entry-level factory jobs that they are struggling to fill.

Tijuana’s maquiladora industry has between 7,000 and 10,000 vacancies, said Salvador Díz, president of the Association of Industries in Otay Mesa, and a shortage of labor has prompted employers to recruit workers in southern Mexico.

It defies the imagination that Mexico is a viable safe haven for migrants from around the world, yet this appears to be the new assertion. Again, one has to wonder what Mexico gets out of it.

Assuming the United States is in the legal right to keep asylum seekers from around the world in Mexico to fight their cases, how would these long sojourns in Mexico affect asylum seekers? According to INA § 208(b)(2)(A)(vi), asylum seekers are not eligible for asylum if they were “firmly resettled in another country prior to arriving in the United States.”

If non-U.S. citizen, non-Mexican citizen asylum seekers living in Mexico, working in Mexico, and even offered the opportunity to seek asylum in Mexico, are deemed firmly resettled there, they will not be able to come to the United States regardless of the validity of their asylum claims.

What is firm resettlement and would compelled residence in Mexico constitute firm resettlement? Firm resettlement is defined at 8 CFR § 208.15, which states:

An alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement unless he or she establishes:

(a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that nation only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or

(b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled.

In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.

The Board of Immigration Appeals addressed firm resettlement in a case, Matter of A-G-G-. In the case, the BIA devised a process to determine firm resettlement:

(1) The framework for making firm resettlement determinations focuses exclusively on the existence of an offer of permanent resettlement and allows for the consideration of direct and indirect evidence.

(2) The Department of Homeland Security has the initial burden to make a prima facie showing of an offer of firm resettlement by presenting direct evidence of an alien’s ability to stay in a country indefinitely; when direct evidence is unavailable, indirect evidence may be used if it has a sufficient level of clarity and force to establish that the alien is able to permanently reside in the country.

(3) An asylum applicant can rebut evidence of a firm resettlement offer by showing by a preponderance of the evidence that such an offer has not been made or that the applicant’s circumstances would render him or her ineligible for such an offer of permanent residence.

(4) Evidence that permanent resident status is available to an alien under the law of the country of proposed resettlement may be sufficient to establish a prima facie showing of an offer of firm resettlement, and a determination of firm resettlement is not contingent on whether the alien applies for that status.

If Mexico offers migrants waiting in Mexico for asylum in the United States the opportunity to seek asylum in Mexico, those that accept the offer cannot receive asylum here and those that refuse to apply also cannot receive asylum here. As for those denied asylum in Mexico, Mexico can certainly deport them regardless of what may be pending in the United States. In fact, the United States could even negotiate an agreement with Mexico to refuse to entertain asylum cases here when asylum cases could be filed in Mexico as we have with Canada.

Litigation will ensue as to whether there really was a true offer of resettlement in Mexico or the offer of firm resettlement was a deception to deny these people the opportunity to apply for asylum in the United States. Other than that, the law does not appear at first glance to be against the new plan. We’ll have to see if Lee Gelernt sees it differently. This could be legal checkmate.

Of course, as I have blogged about before, the people coming to the United States are not playing legal chess or any other game. They are fleeing poverty and crime and corruption. They fear for their lives. If they stack up in Mexico and are preyed upon, remain impoverished, and find their circumstances little better than where they came from, they will try to get to the United States. All the legal barriers in the world won’t stop them. Then, we will have a real crisis – potentially tens and hundreds of thousands of people on our border seeking entry not to seek legal status, but to live in relative safety. Then, the United States will have to address the real problems and not address a problem of desperate populations on the move as a legal one when it is not. Posted November 25, 2018.


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