The Trump administration intends to press forward with its plan to send immigrants of any nationality back to Mexico after they're caught illegally crossing the southern U.S. border, a spokesman for the Department of Homeland Security (DHS) confirmed to Univision.
The proposed U.S. policy was outlined in an enforcement memo sent out by secretary of Homeland Security John Kelly on February 20, but it was put into question two days later when Kelly said during a press conference that he'd been given the mission to "return (undocumented immigrants) to their country of origin as fast as possible."
The comment, made during the secretary's first official visit to Guatemala, should not be read as "a policy shift," said a DHS spokesperson in an email this week, because the new policy would not affect immigrants who have final deportation orders.
"Illegal aliens with a final order of removal are returned to their home countries", said the spokesman, David Lapan, to Univision. "Some of those without a final order, who entered the U.S. through Mexico and who wish to appeal or seek relief through our immigration courts, could be sent to Mexico pending disposition of their case."
The new U.S. enforcement policy regarding non-Mexicans could deepen the diplomatic rift between the Trump administration and the Mexican government, which has repeatedly stated that it will not accept "unilateral" immigration measures that do not align with its own national interests.
"We're working with the Government of Mexico and the U.S. Department of State to determine how best to implement this guidance," Lapan said.
When asked about any ongoing negotiations with Mexico on this matter, a state department official confirmed the Department of State maintains a wide ranging discussion with Mexico on all matters pertaining to immigration.
The Mexican foreign minister, Luis Videgaray, has flatly rejected the idea that Mexico would cooperate with the measure. "If the U.S. government insists that it wants to deport to Mexico or wants to send to our country people who do not share our nationality, Mexico does not have any reason to receive them and in that instance we'd begin a process to demand that the U.S. government certify the nationality of each person" sent across the border, he said last month.
According to DHS, the United States is legally allowed to send border crossers back to the territory from which they came. "There is a provision in U.S. law to do so, and the (executive order) and implementation memos address it," Lapan said.
The memo refers to section 235(b)(2)(C) of the Immigration and Nationality Act, which states that: "In the case of an alien (...) who is arriving on land (...) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a (removal) proceeding."
It would also force recent border crossers to appear at their U.S. deportation hearings through a videoconference system set up in facilities in Mexico, although this policy "is not being implemented yet and there is no timeline for doing so," according to Lapan.
Besides the logistical challenges of setting up facilities on the other side of the border, the new measure toward non-Mexicans could present some legal challenges for the United States, especially when it comes to asylum seekers, said Meg Satterthwaite, a professor at the New York University School of Law.
"If the United States starts sending people back to Mexico who are not Mexican, they have an obligation to look at the evidence on what Mexico will do with them," said Satterthwaite, who serves as faculty director for the law school's Center for Human Rights and Global Justice. "If there’s a risk that Mexico will send them back to their countries, and if these people have forwarded their claims of fear (of persecution), then that would in fact be a breach of the U.S. obligation toward asylum seekers."
Through international treaties, the U.S. government has long been tied to a policy of non-refoulement, which prohibits countries from returning asylum seekers to countries where they would be persecuted for belonging to a certain religion, race, nationality or a particular social or political group. This policy, Satterthwaite argues, would bar the Trump administration from sending immigrants with pending asylum cases back to Mexico, unless it could make sure that Mexico would not deport them to their countries of origin.
"The United States can’t transfer an asylum-seeker to a place where they may be tortured —or to a country that might itself transfer the person to a place where they may be tortured—while the asylum claim is being assessed", the professor explained. "The onus is on the United States, then —before it may permissibly transfer a Central American asylum seeker to Mexico— to assess whether Mexico is likely to expel that asylum seeker to a place where she may be tortured. If such a transfer is likely, the U.S. can’t transfer her."
Satterthwaite added that the new DHS policy might make it harder for immigrants and asylum seekers to obtain legal representation, by forcing them to follow their cases remotely from facilities across the border. "While paid legal representation in such cases is not an entitlement under international law, the fact that migrants with attorneys systematically enjoy more favorable outcomes means that there is a serious fairness issue here. The right thing to do is to facilitate access to attorneys for those facing expulsion," she said.