US can legally process refugees abroad — but that won't be enough

In response to the most recent migrant caravan, Donald TrumpDonald John TrumpTrump calls for Republicans to be 'united' on abortion Tlaib calls on Amash to join impeachment resolution Facebook temporarily suspended conservative commentator Candace Owens MORE has proposed that refugees’ asylum claims be processed in Mexico. While this is not necessarily a bad idea, depending on how it is carried out, it cannot cancel out the legal obligation of the U.S. to process claims for those who come to our borders seeking protection.

If the administration is worried about large numbers of asylum seekers, which is a questionable concern, we must learn to better utilize our border officers. They are more than capable of carrying out their duties. And as a developed nation we have more than enough resources to welcome refugees. We should consider how some of these cases could be processed in Mexico.

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There are three ways in which these cases could be processed abroad, all of which have been done before.

Safe third country

First, the United States could designate Mexico as a “safe third country." We have done this with Canada. This means that, with limited exceptions, anyone who arrives in Mexico first will need to have their asylum claim reviewed by the Mexican authorities, and the Mexican authorities will either grant asylum in Mexico or deport the person back to their home country.

There are several problems with this approach. Most importantly, Mexico is not a sufficiently safe country. There is a significant level of insecurity in Mexico due to the drug cartels and street crime. Central Americans face particular challenges because many of the gangs they are fleeing have connections with the cartels in Mexico. Mexico’s southern border is also porous enough that Central American gangs can travel into Mexico and target people.

Additionally, I have heard reports from Central American asylum seekers we work with that they are targeted by criminal enterprises and face discrimination in Mexico due to their foreign nationality, including with the Mexican police, who often fail to protect them.

Designating Mexico as a safe third country also presents logistical, humanitarian and foreign policy issues. While Mexico has increased its capacity to process refugee claims, to take on all refugee processing would be a huge program expansion and cost. Even were the U.S. to subsidize this cost, it would create bilateral tension to ask Mexico to handle all the refugees while the U.S. sits back and does nothing, when we are a global superpower with the capacity to, as industry parlance says, “share the burden” and engage in humanitarian work.

This brings us to the second and third ways that asylum cases can be processed in Mexico, both of which would allow for the resettlement of refugees in the U.S.

United Nations Refugee Status Determination

The first of these, known as Refugee Status Determination, is conducted by the United Nations High Commissioner for Refugees (UNHCR). Since the founding of the international refugee system over half a century ago, the UNHCR has engaged in case processing in refugee camps and communities around the world. Once the UNHCR makes a legal finding that an individual meets the definition of a refugee, the agency passes the case to the embassy of a country that has agreed to accept refugees. That country then determines if they agree with the UNHCR’s evaluation, the staff conduct a background check and then, if everything checks out, the country grants refugee status and provides a visa and ticket to travel. For fiscal 2019, the U.S. will accept 30,000 refugees following this process, which amounts to about one refugee for every 11,000 Americans.

The largest problem with this proposal is what will happen with the refugees while their cases are being processed. In addition to the staff required to process these petitions, it would be necessary for either, or a combination of, the construction of large detention centers at huge cost, the creation of refugee camps or shelters, again at significant cost, or the release of individuals into the community, where they will be homeless and vulnerable to crime, creating a dangerous situation for everyone in the community.

Whatever approach is taken would likely cause a humanitarian catastrophe. Therefore, even if the U.S. were to underwrite the cost of this program and the Mexican government agreed, it is inadvisable from a financial and humanitarian standpoint.

The only realistic and humane possibility would be a small-scale program, which provides immigrant shelters for people going through the process. Additionally, if the U.S. government wants to pursue the option of Refugee Status Determination in Mexico, a small program is also advisable as a test run before large amounts of U.S. taxpayer dollars are thrown at this idea.

Off-shore processing

The last way of processing cases abroad — “off-shore processing” — will encounter many of the same problems as with the approaches above, and then some. Australia created this process in 2001 as part of the Pacific Solution, through which asylum seekers who arrived by boat were sent to the countries of Papua New Guinea or Nauru, where the Australian government detained and processed their asylum claims.

An off-shore processing program in the U.S. context would mean sending a team of U.S. asylum officers to Mexico and either bringing those who pass their interviews to the U.S. for court processing or sending a cadre of immigration judges to Mexico. It seems unlikely that a large number of asylum officers, much less immigration judges, would agree to leave behind their family and friends and relocate to Mexico. There is no reason, beyond political expediency, to process claims in Mexico instead of in the U.S.

Regardless of how the U.S. processes refugee claims abroad, it does not eliminate our country’s legal obligation to process the asylum claims of people who ask for protection in the U.S. So, while international case processing may have some ability to alleviate the number of refugees who come to our border, it by no means allows the administration to escape from our responsibility to help those in need who are asking for protection here.

Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization.