Transit States to Destination Nations: Mexican and Moroccan Asylum Policies.

AuthorEcans, Stephanie

TABLE OF CONTENTS I. INTRODUCTION 208 II. BACKGROUND 211 A. US Impact on Mexican Immigration Policy 212 B. EU Impact on Moroccan Migration 216 C. Similarities and Differences 220 III. ANALYSIS 221 A. Seeking Asylum in Mexico 222 1. Constitutional and Statutory Reforms 223 2. Commission for Refugee Assistance 224 3. National Institute for Migration 226 B. Seeking Asylum in Morocco 229 1. Constitutional and Statutory Reforms 229 2. The Humanitarian Approach 231 3. Agency Action and UNHCR 232 C. The Refugee Convention 234 IV. SOLUTION 237 A. Altering the Refugee Convention 237 B. Regional Refugee Agreements 238 C. Statutory Reform 239 D. Agency Reform & Funding Sources 240 V. CONCLUSION 242 I. INTRODUCTION

Immigration reform ignites debate. Each presidential administration advocates its view about how to regulate those who can enter, seek asylum, and live in the United States. While Central American and Mexican migrants seeking nonhumanitarian forms of immigration are on the decline, those seeking asylum are at an all-time high. (1) An immigrant is an individual who enters another country for permanent residence, while an asylum seeker is an individual who asserts refugee status and awaits a legal determination granting them residency. (2) The Refugee Convention defines a refugee as an individual who is unable to return to their country of origin due to a well-founded fear of persecution on account of race, religion, nationality, social group membership, or political opinion. (3) The United States has adopted restrictive immigration and asylum policies (4) and, as a result, denies most asylum claims. (5) These denials have serious effects felt beyond US borders, in countries such as Mexico.

Many countries' refugee and asylum policies are formulated based on obligations assumed under the 1951 Refugee Convention and 1967 Protocol (Refugee Convention), which outline the treatment of refugees. States adopted the 1951 Refugee Convention after World War II. (6) The 1967 Protocol expanded the general definition of refugee to include the categories previously described. (7) States party to the agreement accept several obligations, including not returning refugees to any country where they will face a risk of persecution (i.e., nonrefoulement principle). (8) Other obligations include facilitating naturalization and providing administrative assistance, identity papers, and travel documents to refugees. (9) However, the distinction between refugees and other migrants who leave their countries of origin is controversial and not thoroughly addressed by the Refugee Convention. (10) Many countries have struggled with defining who is eligible for relief and determining what evidence is necessary to support an asylum claim. (11) The lack of a uniform definition and accepted evidence impacts the rates at which asylum applications are granted. (12) In the United States, this lack of uniformity makes an asylum seeker's odds of being granted asylum highly dependent upon the immigration judge hearing the case. (13) Similar discrepancies in asylum grant rates are also present in the EU. (14)

The United States and Mexico share a long and complex history surrounding immigration policies and procedures. However, this relationship is not unique. Immigration trends between Morocco and Spain closely parallel those of Mexico and the United States. (15) Historically, many Central American asylum seekers have used Mexico as a gateway into the United States; African asylum seekers have used Morocco as a gateway into Spain and the European Union (EU). (16) Both Morocco and Mexico are significantly impacted by their northern neighbors' immigration policies and their southern neighbors' political and economic turmoil. This Note compares the current refugee and asylum policies in Mexico and Morocco.

Part II of this Note examines the impacts of Mexico's and Morocco's northern neighbors' immigration policy on each nations' internal policy developments. Part III of this Note analyzes current aspects of Mexico's and Morocco's refugee and asylum policies. Part IV concludes with a series of recommendations for how Mexico and Morocco can alter current refugee and asylum policies and practices.

  1. BACKGROUND

    Historically, the United States has indirectly impacted and directly attempted to alter Mexico's immigration policies. This pattern continues today, as each administration's policies further impact Mexico's current asylum and refugee system. (17) To aid in this discussion, this Part includes an overview of Mexico's and the United States' migration trends, along with US policy currently impacting Mexico. This Part also provides an overview of the emigration and immgration trends experienced by Morocco. Morocco's colonial history has shaped its immigration and emigration trends, which also impacts Spain and, more broadly, the EU. These impacts cause Spain and the EU to be highly invested in Moroccan immigration and asylum policy because they desire to reduce the flow of transmigrants attempting to enter Europe.

    Within this Note, several terms are used to describe those who move or travel between nations. An "immigrant" is a "person who moves into a country other than that of his or her nationality or usual residence, so that the country of destination effectively becomes his or her new country of usual residence." (18) The term "migrant" is used to describe a "person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons." (19) This definition includes both those with legal authorization to reside in a nation and those without. "Irregular migrant" or "irregular migration" is used to refer specifically to those individuals whose movement occurs "outside the laws, regulations, or international agreements governing the entry into or exit from the State of origin, transit or destination." (20) This Note uses the term "refugee" to describe those who have been recognized by their host country as a refugee, in most cases, because the qualify for protection under the Refugee Convention. Lastly, "asylum seeker" refers to an individual who is "seeking international protection" (21) but has not yet been recognized as a refugee. There are no universally accepted definitions of many of these terms--often nations, international organizations, and scholarship use these terms to encompass different groups of people--so the meaning of these terms can vary across works, resulting in differing norms and legal rights.

    1. US Impact on Mexican Immigration Policy

      The United States' immigration policy has a profound effect on Mexico and influences Mexico's immigration policy. (22) Mexico's restrictive immigration policies often do "the dirty work for the United States," by restricting transmigrants from entering the United States. (23) Prior to 2014, a majority of individuals apprehended at the southwest US border were of Mexican nationality. (24) By 2019, Mexican nationals only made up approximately 20 percent of those apprehended at the southwest US border, while most other migrants were from Central America. (25)

      The increased number of Central Americans at the US border means that Mexico is also experiencing increasing numbers of Central American migrants and transmigrants both at and within its borders. From January 2020 to March 2020, prior to the spread of COVID-19 and accompanying restrictions, Mexico received nearly 17,800 asylum claims--a 33 percent increase from the same period in the prior year. (26) A majority of the asylum seekers in the beginning of 2020 were from Honduras, Haiti, Cuba, El Salvador, and Venezuela. (27) As a result of border closures in Central America, in April 2020, UNHCR reported a 90 percent decline in average weekly asylum claims. (28)

      Three recent US policies that have greatly impacted Mexico are metering, Migrant Protection Protocols (MPP), and safe third-country agreements. These policies were put into place under the Trump Administration, and the Biden Administration is currently taking action to dismantle and alter the effects of some of these programs. In fact, one of the first actions President Biden took when he assumed office was to end the MPP. (29) However, during his presidency, President Trump issued over 400 Executive Orders pertaining to immigration (30)--the undoing of which will neither be easy nor quick. Many of these programs and actions have had profound impacts on Mexico, which are still felt today. A description of the polices as designed and used under the Trump Administration is below.

      Before asylum seekers are able to access any US immigration processes, they must first go through a system known as "metering." The U.S. Customs and Border Protection (CBP) metering process limits the number of individuals who are permitted to access the asylum system. The process works as follows:

      Asylum seekers turned away by CBP must place themselves on a "list" maintained by a person or group on the Mexican side of the border. Each day, CBP contacts the person or entity in charge of the list and informs them of how many people can be admitted and processed in order to request asylum. At that point... CBP may then subject the asylum seeker to the Migrant protection Protocols program and send them back to Mexico. (31) President Biden has maintained the metering process and will likely continue to do so in the future. (32)

      Under the Trump Administration, after metering--when an individual is finally given access to the immigration system--a migrant becomes subject to the MPP. Under the MPP, migrants, including asylum seekers, are forced to remain in Mexico and wait outside the United States during their immigration proceedings. (33) Migrants currently in Mexico often stay in tent encampments on the streets of cities. (34) From February 2019 to February 2021, CBP sent over sixty-eight thousand migrants to...

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