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As recently reported, the Trump administration is planning on denying asylum to migrants who passed through a third country on the way to the US. In the interim final rule, the government argues that this policy is consistent with treaty obligations under the 1967 Protocol because the Protocol only requires non-refoulment of refugees, and does not require them to be granted the immigration benefit of asylum status (which includes a path to citizenship, and the ability to petition for family members to receive derivative status).

This suggests that the administration is not planning on sending legitimate refugees back to their country of origin. But if the government is not going to grant them asylum and is also not going to deport them to their country of origin, what is the plan?

  • Will they be kept detained indefinitely until they agree to leave?
  • Or, will they be released, under conditions? What conditions? Would they, for example, be denied the ability to legally work in the US?
  • Or, is there a plan to remove them to some safe third country?
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  • Do you intend for your 3 questions to apply only to "legitimate" refugees? if so, that presents another question, how does the US government plan to determine if a refugee is "legitimate" prior to their application for refugee status. – BobE Jul 17 '19 at 18:14
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    @BobE (1) Yes. (2) They would have to apply for withholding of removal. Those who do not apply for withholding of removal or do not qualify would presumably be removed in the same manner as all other unauthorized migrants. – Brian Jul 17 '19 at 18:35
  • I'd think that a person can not apply for "withholding of removal" , until disposition of an asylum claim. If the asylum is held to be valid (thereby making the person a "legitimate refugee) on what basis would they be detained? – BobE Jul 17 '19 at 21:05
  • @BobE The PDF says, "The alien would, however, remain eligible to apply for statutory withholding of removal". It would seem that their claim would be evaluated in a similar manner to an asylum claim but then the result would be that they would only be eligible for withholding of removal but not asylum. – Brian Jul 18 '19 at 15:31
  • Clear as mud ! (perhaps b/c "removal" and "deportation" seem to be used synonymously), however I'm still stuck with flowchart of this. If a person is determined to be a "legitimate" refugee that suggests that they have been adjudicated legitimate. If they have been adjudicated as legitimate, why would the be detained or even expected to leave. As well, If they were in detention during adjudication, why wouldn't they be released after their application for asylum was granted. – BobE Jul 18 '19 at 17:20
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Well, the most natural thing would be for the new agreement with Mexico to work the same way as the existing agreement with Canada. According to Just Security:

The U.S.-Canada agreement requires each country to return an asylum seeker to the other country for her/his claim to be adjudicated if the person was “physically present [in the other country] immediately prior to making a refugee status claim.”

I.e. people who travel through Mexico to make an asylum claim in the US will be deported to Mexico to make their asylum claims there (to Mexico). If the Mexican claim is denied, then that person would legally be able to make a claim in the US. Of course, that person would somehow have to get back to the US to make that claim.

The quoted matter conflates refugee and asylum. In plain English, an asylum seeker is often just a particular kind of refugee (there may be other reasons to claim asylum than refugee status). But legally the two are different processes in the US.

As I understand the process, if people go through a Safe country (e.g. Canada) to reach the US and then make asylum claims, they would be deported back to the first Safe country through which they traveled. They could then make their asylum claims there. For those asylum claims that fail, they would be deported back to their original country (refoulement is no longer an issue as the claim was denied; they aren't refugees legally). If the asylum claim succeeds, they would be subject to the normal processes of the Safe country.

If those people whose claims fail can then get back to the US, they could make asylum claims in the US even if they go through the Safe country again. But of course that requires repeating the whole process.

One could argue that rather than going through the Safe country to reach the US and be deported, it would be easier to make the first asylum claim on reaching the Safe country. I believe that is the point of the policy, to encourage people to stop going through countries illegally. This also tends to weed out people who are really migrating for economic reasons, as they may not want to migrate to the Safe country. And successful asylum claims in the Safe country then block asylum claims in the US. The presumption being that many asylum claims are made by economic migrants to do an end run around the US immigration system, which prioritizes asylum claims and family reunification over economic immigration.

They might still be able to make refugee claims, but those rarely allow resettlement in the US. That's presumably why people are skipping them to make asylum claims instead.

All this is dependent on the US signing a Safe agreement with some country through which asylum seekers are passing. Mexico would be preferable. Without the Safe agreement, the US can't deport the asylum seekers. Because then there is no Safe country and the US can't deport to the origin country until the asylum claim is adjudicated.

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    That's certainly a plausible option, but is there any evidence that this is what the new policy will be? – divibisan Jul 17 '19 at 18:34
  • Is there any evidence that such an agreement is likely to be made soon? If not, does the administration have a backup plan? – Brian Jul 17 '19 at 18:41
  • If and when Mexico agrees to a Canadian style agreement - wouldn't the more sensible approach be to have Guatemalans apply and adjudicate at the Guatemalan/Mexico border ? – BobE Jul 17 '19 at 21:05
  • @BobE Of course. And if Guatemala is safe - it might already be, I don't know the situation - apply at its southern border. And so on. – Sjoerd Jul 18 '19 at 7:49
  • I assume what Brythan means is that a Guatemalan seeking refuge (asylum) would enter the US, apply for asylum, then be removed to Mexico while the asylum claim is being adjudicated in the US. In other words, Mexico would agree "house" asylum applicants for however long it took the US to work through the (about) 1 million applicant backlog. – BobE Jul 18 '19 at 17:01

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