Us-Mexico Border: International Law Violation?

The US-Mexico border has been a source of tension for decades, with the US government taking an increasingly hardline stance on immigration in recent years. The US has implemented a series of policies aimed at curbing illegal immigration, including building a physical wall, detaining migrants, and enlisting the support of the Mexican government. These policies have been criticised for their impact on asylum seekers, with the US being accused of breaking international law by restricting access to asylum and failing to protect those seeking safety. The situation is further complicated by the presence of criminal groups and human smugglers, who prey on vulnerable migrants. With the issue of immigration continuing to divide political opinion, the future of US-Mexico border control remains uncertain.

The legality of seeking asylum in the US

Yes, seeking asylum is a human right protected under US law. Asylum seekers must be physically present in the US or at a port of entry (an official land crossing or airport) to request the opportunity to apply for asylum.

Asylum is a form of protection that allows people to remain in the US and avoid deportation back to a country where they fear persecution or harm because of their identity, religion, or political beliefs.

Who is an asylum seeker?

An asylum seeker is someone who has fled their home country in search of safety and protection in another country. Asylum seekers may be of any age, gender, socioeconomic status, or nationality, although the majority come from regions suffering from conflict, disaster, and weak rule of law.

The right to seek asylum was born out of the tragedies of World War II and the Holocaust. In 1948, dozens of nations committed to enshrining this right in the Universal Declaration of Human Rights. It was further established in the 1951 Refugee Convention and its 1967 Protocol.

The US passed its own federal law, the Refugee Act of 1980, which allows people fleeing persecution on the basis of "race, religion, nationality, membership in a particular social group, or political opinion" to seek asylum.

Since 2017, the US government has severely restricted access to asylum at the border. In March 2020, the Trump administration implemented Title 42, a public health rule that allowed asylum seekers to be turned away at the border without a chance to present their cases. This policy was ended by President Biden in May 2023, but it was replaced by the 'asylum ban', which bars asylum seekers who passed through another country before reaching the US-Mexico border unless they had previously applied for asylum elsewhere.

Restrictive asylum policies have led to dangerous and inhumane conditions for asylum seekers. For example, the "Remain in Mexico" policy forced asylum seekers to wait out their US court cases in Mexico, often in unsafe and unsanitary conditions. Restrictive policies have also led to increased migration through Mexico, straining the resources of the Mexican government and putting asylum seekers at risk of kidnapping, extortion, and other crimes.

The Biden administration should rescind its 'asylum ban' and other executive orders that curb the legal right to seek asylum. It should also address the asylum backlog, expedite work permits for asylum seekers, and invest in smart and humane asylum measures.

The legality of US immigration policies

The Right to Asylum

One of the most controversial issues is the right to asylum. Under international law, individuals have the right to seek asylum in another country if they face persecution or a well-founded fear of persecution in their home country due to their race, religion, nationality, membership of a particular social group, or political opinion. This right was incorporated into international law after World War II, and the US adopted key provisions of the Refugee Convention into its immigration law with the Refugee Act of 1980.

However, since June 2024, the Biden administration has implemented several measures that curb the legal right to seek asylum. An executive order suspended the right to seek asylum for people who arrive at the southern border away from an official point of entry or without an appointment through the CBP One app. This was later amended to tighten asylum restrictions further, with the suspension remaining in place until the average number of daily southern border encounters drops below 1,500 for 28 consecutive days.

The 'Remain in Mexico' Policy

Another contentious policy is the Migrant Protection Protocols (MPP), also known as "Remain in Mexico." This policy forces asylum seekers to wait in Mexico for their US immigration court hearings, often in unsafe and unsanitary conditions. It has affected over 75,000 asylum seekers since 2020, and human rights monitors have documented over 1,500 violent crimes committed against them during their wait. The Biden administration attempted to end this program, but a federal court blocked their efforts, and the Supreme Court later ruled in favor of its continuation.

During the COVID-19 pandemic, the Trump administration implemented Title 42, a public health rule that allowed border officials to turn away asylum seekers without allowing them to present their cases. This policy was used to justify nearly 3 million expulsions between March 2020 and May 2023, despite public health officials agreeing that it did not protect people from COVID-19. Title 42 was ended in May 2023 but was immediately replaced by the Biden administration's 'asylum ban', which similarly undermines the rights of asylum seekers.

Humanitarian Parole Programs

The Biden administration also utilized humanitarian parole programs to allow citizens of Cuba, Haiti, Nicaragua, and Venezuela to enter the US without crossing a land border. However, the Trump administration shut down these programs, affecting over 530,000 people.

Border Wall and Military Deployment

The construction of a physical wall and the deployment of military personnel along the southern border have also been controversial. The Biden administration authorized the construction of temporary and permanent physical barriers and the deployment of additional personnel to ensure "complete operational control" of the border. This has been criticized as an unnecessary and aggressive measure that could lead to confrontations between combat-trained soldiers and migrants.

While the US has the sovereign right to control its borders and enforce immigration laws, its policies and practices at the US-Mexico border have raised serious concerns about their legality and ethical implications. The curtailment of the right to asylum, the "Remain in Mexico" policy, Title 42 expulsions, the ending of humanitarian parole programs, and the militarization of the border have all been criticized as violating international law and human rights.

The legality of Mexico's treatment of migrants

Mexico's treatment of migrants has been a contentious issue, with the country facing a significant influx of people from Central American countries seeking to cross into the United States. Mexican immigration and law enforcement authorities routinely arrest and detain migrants who lack the necessary paperwork to enter the country legally. While Mexico has been criticised for its handling of the situation, it is important to understand the complexities and challenges it faces in managing its border with the United States.

Mexican Border Laws

Mexican immigration laws require that all individuals entering the country possess the necessary documentation. Those who enter Mexico illegally, regardless of their country of origin, are subject to arrest and detention. This has led to the detention of not only Central American migrants but also US citizens who cross the border without the proper paperwork. Mexican authorities have set up immigration checkpoints throughout the country to curb illegal immigration, particularly from Central American countries such as Honduras, Guatemala, and El Salvador.

Detention Conditions

One of the most concerning aspects of Mexico's treatment of migrants is the detention conditions. Detainees, including families with children, are often held in "migrant shelters" or immigration jails, which are characterised by extreme squalor, with inadequate sanitation, food, and clean water. These conditions have been widely criticised as inhumane and detrimental to the health and well-being of those detained.

The 'Remain in Mexico' Policy

One of the most notable policies implemented by the Mexican government in recent years is the "Remain in Mexico" policy, officially known as the Migrant Protection Protocols (MPP). This policy, introduced in collaboration with the United States, requires migrants seeking asylum in the US to remain in Mexico until their US immigration court date. While Mexico provides humanitarian protections for these individuals, the policy has been criticised by human rights organisations for exposing migrants to potential attacks and unsafe conditions while they await processing.

Legal Representation

Access to legal representation for migrants in Mexico is limited. Under the MPP, representation rates for individuals subject to the program were exceedingly low, with only 7.5% hiring a lawyer. This lack of legal counsel, combined with the dangers and insecurity in border towns, made it extremely difficult for migrants to successfully navigate the asylum process.

While Mexico's treatment of migrants has been scrutinised and criticised, it is important to recognise the complexities of the situation. Mexico faces a challenging task in managing its border with the United States, and its efforts to curb illegal immigration and protect its own sovereignty must be considered. However, it is essential that the human rights and well-being of migrants are prioritised, and Mexico must work towards improving the conditions and processes for those seeking a better life.

The legality of US-Mexico cooperation on immigration

In June 2024, the US implemented an executive order that suspended the right to seek asylum for people arriving at the southern border without prior authorisation or an appointment through the CBP One app. This order was amended in September 2024 to further tighten asylum restrictions. The US government has also ended humanitarian parole programs that allowed certain citizens of Cuba, Haiti, Nicaragua, and Venezuela to enter the country without crossing a land border. These actions have been criticised by organisations such as the International Rescue Committee (IRC) for curbing the legal right to seek asylum and putting vulnerable people at risk.

In response to the high number of encounters straining the immigration system, President Biden signed a proclamation in June 2024 to temporarily suspend and limit the entry of certain noncitizens at the southern border. This proclamation was amended in September 2024 to include updated threshold calculations. The suspension and limitation on entry apply to noncitizens who cross the border unlawfully or without authorisation and do not qualify for an exception.

The US has also implemented policies such as "Remain in Mexico," which requires non-Mexican asylum seekers to wait in Mexico until their US immigration court hearing dates. This policy has been criticised for forcing asylum seekers to wait in unsafe and unsanitary conditions, often without access to legal counsel.

On the other hand, Mexico has also taken measures to curb illegal immigration and support US efforts to secure its southern border. The Mexican government has set up immigration checkpoints with the knowledge and support of the US State Department to stop illegal Central American immigrants from reaching the US border. Mexico also supports the US "Remain in Mexico" policy and is working to curb illegal immigration into its borders.

The legality of these cooperative efforts is questionable, as they may violate international law and human rights. The right to seek asylum is protected under international law, and policies that restrict access to asylum or force asylum seekers to wait in unsafe conditions may be illegal. Additionally, the conditions in which migrants are detained, both in the US and Mexico, have been criticised for lacking proper sanitation, food, and clean water, which may violate human rights.

While the US and Mexico have a shared interest in securing their borders and addressing illegal immigration, their cooperative efforts must comply with international law and respect the human rights of migrants and asylum seekers.

The legality of US domestic deployment at the border

The legality of US domestic deployment at the Mexican border is a complex issue that has received much attention from legal commentators and policymakers. The Posse Comitatus Act (PCA) is a crucial piece of legislation in this context, restricting the military from engaging in law enforcement activities on American soil. This means that active-duty military personnel are prevented from directly assisting law enforcement agencies and performing activities such as searches, seizures, arrests, evidence collection, or establishing checkpoints. However, indirect support activities are permitted under the PCA, such as providing military equipment, sharing information, aerial reconnaissance, and detecting and monitoring border areas.

The Trump administration's decision to deploy nearly 5,000 troops to the southern border, including 3,000 active-duty servicemen, has raised legal questions. While the troops' role is largely limited to supporting law enforcement, there are concerns about potential direct military intervention in Mexico, which would require further legal analysis. The use of force by military personnel involved in border control activities is also a point of contention, with President Trump's comments suggesting that troops could shoot migrants who throw rocks at them. However, legal experts caution that troops must follow specific rules of engagement and that the right to self-defence does not justify lethal force in response to rock-throwing.

The legality of the US military's deployment for domestic use is a matter of debate. While legal commentators and policymakers generally recognise the need for caution in assigning a domestic role to the military, there are exceptions and loopholes that can be exploited. For example, the 1807 Insurrection Act could potentially be invoked to authorise the military to engage in the direct deportation of irregular immigrants or loosen rules restricting their interaction with civilians. However, this would require "unlawful obstructions or rebellion against the authority of the United States," which does not currently seem to be the case.

In conclusion, the legality of US domestic deployment at the Mexican border is a complex and evolving issue that requires careful consideration of various legal frameworks, including the Posse Comitatus Act, international law, and rules of engagement. While indirect support activities are permitted, the potential for direct military intervention and the use of force raise legal questions that need to be addressed to ensure compliance with domestic and international law.

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