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By Labeling Mexico As ‘Unsafe,’ Trump Might Upend His Own Asylum Policy

By Labeling Mexico As ‘Unsafe,’ Trump Might Upend His Own Asylum Policy

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sylvia longmire contributorBy Sylvia Longmire
Columnist, In Homeland Security

In a recent Oval Office interview with Breitbart News Deputy Political Editor, Amanda House, President Trump made a statement which seemingly unraveled the entire legal foundation for several of his administration’s immigration and asylum policies.

The March 11 interview focused on whether the Trump administration will designate factions of Mexican drug cartels, or any cartel, as terrorist groups.

Mexico: “One Of The Most Unsafe Countries In The World”

When discussing the violence in general across Mexico, Trump stated: “Mexico, unfortunately, has lost control of the cartels.” He indicated that in 2018, 42,000 homicides were attributed to the cartels. However, most importantly, Trump stated, “It’s considered one of the most unsafe countries in the world.”

If President Trump officially believes that the Mexican government cannot control drug cartel activity in Mexico and that Mexico is one of the most unsafe countries in the world, then this automatically invalidates the legal justification for the recently enacted Migration Protection Protocols.

The Migration Protection Protocols, informally known as the “Remain in Mexico” policy, was enacted in January 2019 to reduce the number of asylum seekers awaiting the outcomes of their immigration proceedings in the United States. After asylum applicants from Central America complete their paperwork with immigration authorities in the U.S., they are sent to Mexico to wait while their cases are being adjudicated.

The fundamental principle of international asylum law is that you cannot return a migrant to a country where they are in danger of being persecuted, known as non-refoulement. Mexico has not been willing to sign a version of a treaty that the U.S. has with Canada, which designates Canada as a “safe third country.” However, Mexico has refused to take back any migrants who are at risk of persecution in Mexico.

Trump Ponders Whether Mexican Drug Cartels Are Foreign Terrorist Organizations

In the Breitbart interview, Trump also stated that he is thinking “very seriously” about labeling Mexican drug cartels as foreign terrorist organizations. If he does this, it would upend the administration’s entire process for determining credible fear claimed by asylum seekers at the southwest border. Currently, Customs and Border Protection (CBP) agents aren’t asking Central American migrants if they are afraid of being returned to Mexico – which is the normal process for asylum claims. Such a designation of cartels by the White House could unleash a much larger torrent of migrants claiming asylum because they could readily state that terrorists (who the Mexican government cannot control) are persecuting them.

Temporary Protected Status Ramifications

Another thing that Trump likely didn’t consider when giving his Breitbart interview is that the combination of labeling Mexico as an unsafe country and drug cartels as terrorists may make Mexican nationals living illegally in the U.S. eligible for Temporary Protected Status (TPS). According to U.S. Citizenship and Immigration Services (USCIS), “The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.” In addition, “USCIS may grant TPS to eligible nationals of certain countries who are already in the United States.”

There are specific temporary conditions under which TPS may be granted, and the most relevant for Mexico would be an “ongoing armed conflict.” If Trump were to designate drug cartels as terrorist organizations, the legal argument could be made that the Mexican government is in the midst of an ongoing armed conflict with multiple terrorist groups that it cannot control. As such, Mexican nationals would not be removable from the United States, would be able to obtain an employment authorization document and may be granted travel authorization. Once granted TPS, they also cannot be detained by DHS for anything related to their immigration status in the U.S.

Mexico Cartels Control Drug Traffic In Major US Cities

Such a designation by the White House doesn’t even scratch the surface of the political and diplomatic ramifications. It is no secret that Mexican drug cartel members and their associates are operating across the United States and control the majority of drug trafficking in dozens of major U.S. cities. Considering the high levels of corruption within the Mexican government and the extent to which Mexican government agencies and law enforcement officers cooperate with cartels, the White House would effectively be labeling one of its closest allies as a state sponsor of terrorism. It would also open up the possibility of using U.S. military forces to fight the cartels in Mexico – a political hot potato that Mexico has prohibited for decades and the U.S. government has long avoided.

Additional Asylum Claims

While it is highly unlikely that the U.S. government will formally designate Mexican drug cartels as foreign terrorist organizations, President Trump should be pressed on whether he truly believes Mexico is “one of the most unsafe countries in the world.” If he thinks it is, then the administration has absolutely no legal justification for continuing the Migrant Protection Protocols and will open the immigration system up to a potentially huge wave of additional asylum claims. All of that ultimately will contradict the basic purpose of his administration’s immigration and asylum policies to date.

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