The Biggest ‘Loophole’ In US Asylum Law Is One That Trump Isn’t Tweeting About

by Will Racke

President Donald Trump reacted with fury over reports that a 1,000-strong caravan of Central American migrants is marching north through Mexico with the aim of applying for asylum in the U.S. or illegally slipping across the southwest border.

In series of tweets beginning over the weekend, Trump blamed the Mexican government for letting the caravan travel unimpeded, but he reserved most of his scorn for “weak” U.S. immigration laws that he said were encouraging the marchers.

The White House followed up on Trump’s comments Monday by releasing a fact sheet that blamed “catch and release” loopholes in U.S. immigration law for the high number of unaccompanied minors and family units arriving at the U.S.-Mexico border.

“Foreign nationals see how easy it is to enter the United States, and how hard it is for federal immigration authorities to remove aliens who enter illegally, and are accordingly drawn to the United States,” the White House said. “In the absence of lasting solutions to the problems that riddle our immigration system, we can only expect the flow of illegal immigration into our country to continue.”

The Trump administration has focused on two policies — what it calls “loopholes” — that it says encourage illegal immigration and frivolous asylum claims. U.S. immigration law prevents authorities from detaining most families and unaccompanied children while their cases are pending in immigration court, and eligibility rules for claiming asylum are too lenient, administration officials said Monday in a briefing call.

There is a third, and possibly more consequential, deficiency in U.S. asylum law that encourages runs for the U.S. border, says Andrew Arthur, a fellow at the Center for Immigration Studies. Arthur noted that the U.S. does not have a “safe third country” agreement with Mexico as it does with Canada, in a blog post Tuesday.

Under a 2004 agreement, U.S. immigration authorities can reject asylum claims made by third-country nationals who transited through Canada before arriving at the American border. The policy works the other way, so Canadian officials can also turn around applicants who were first in the U.S.

The agreement codifies the idea that asylum is meant to shelter people in the first safe country in which they arrive, not a country based on asylum seekers’ economic preferences.

“When a significant number of individuals bypass an opportunity to seek protection in one country in order to achieve a migration outcome based on economic, cultural or social preferences, the objective of asylum systems — to provide protection to those who are fleeing persecution or torture — may become distorted,” U.S. Citizenship and Immigration Services wrote in a report on the safe third country agreement.

Washington does not have an analogous agreement with Mexico City. This means that people from third countries who traverse through Mexico to claim asylum in the U.S. cannot be turned around to pursue their claims in Mexico.

The lack of a safe third country agreement with Mexico is a major flaw in the credible fear process, under which an asylum applicant must prove they are likely to be persecuted if forced to return to their home countries, CIS’s Arthur says. He recommends the Trump administration pursue bilateral negotiations with Mexico to establish one.

“DOS [Department of State] should attempt to negotiate a safe-third country agreement with Mexico,” Artur wrote. “If such an agreement cannot be reached, Congress may need to act to plug this loophole.”

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