The Mexican government paid for the buses. The first time was just a few dozen people. The second, it was several hundred. Some of the migrants had indeed given up, sure that their asylum claims would never be processed, and had knowingly agreed to board the buses. But according to UNHCR officials who spoke with the migrants, it was unclear if migrants understood the consequences of boarding the bus or if it was even voluntary at all.
Then reports about the buses stopped. Immigration agencies and journalists had increased scrutiny of the program—which might be why it seems to have subsided, if not been completely scrapped.
The buses represent a larger issue with Mexico’s struggles to deal with Northern Triangle migration. Mexico’s government is desperately trying to prevent migrant asylum seekers from reaching the U.S.—and to some extent they are succeeding. But American policies and an influx of people seeking refuge have strained their systems, leading to measures that may violate international law.
Buses may have been one way for Mexico to alleviate pressure points, though several hundred migrants pale in comparison to the thousands waiting in Mexican border towns for their claims to be processed. But if migrants return to their home country after they’ve already applied for asylum, the case that they are unsafe in their country of origin is significantly weakened in court, explained Maureen Meyer of the Washington Office on Latin America (WOLA). “It’s another ill thought through attempt by the Mexican government to relieve pressure at the border without really thinking about the implications of that program for the asylum seekers,” Meyer says.
Several asylum law experts tell me that the busing program is very nearly “refoulement,” a term used to describe when countries deport asylum seekers back to the countries from which they had fled. Refoulement is addressed in Articles 32 and 33 of the 1951 Refugee Convention, and covers both formal and informal deportation. The latter is harder to define and consequently harder to enforce. But, as sociologist David FitzGerald explained in his new book Refuge Beyond Reach, informal refoulement is part of the larger strategy that wealthy countries use to keep migrants out.
Aaron Reichlin-Melnick, policy analyst at the American Immigration Council, explained that whether busing violates non-refoulement policies gets into murky legal territory. But if you take someone “99 percent of the way back” to the place they are fleeing—and boarding the bus seems semi-voluntary—it’s about as close to refoulement as you can get without actually violating that law, he said. Several other asylum experts told me something similar.
Adam Isacson, director for defense oversight at WOLA, tweeted about the buses while he was in Mexico, helping garner media attention. It’s refoulement in everything but name, he told me when he returned from the border.
Reichlin-Melnick feels more strongly. “It’s this principle of agreeing not to do certain behaviors because that’s bad,” he says.
THE STORY OF THE BUSED MIGRANTS and asylum seekers goes something like this, Voice of America’s Victoria Macchi and Ramon Taylor report: After a treacherous journey to reach the southern border of the U.S.—in temperatures well over 100 degrees—migrants were apprehended by Customs and Border Protection, held for several days, and then sent back across the border, under the Trump administration’s “Remain in Mexico” program. Formally known as Migrant Protection Protocols (MPP), the policy requires asylum seekers to wait in Mexican border towns like Nuevo Laredo, Tijuana, and Juárez until their claims are processed.
MPP has forced more than 40,000 people to wait in Mexico. The process of “metering,” where only a certain number of people can request asylum at a port of entry per day, compounds the problem. But the effect of the policies is not just a temporary hold on who is able to win asylum. Instead, it effectively bars people from asylum by deporting them to another country, Mexico—refoulement in spirit, if not by name.
Of the 1,155 MPP asylum cases that have already been decided, just over 1 percent of asylum seekers had an attorney. This bodes a dismal success rate. According to one journalist’s count, just two people sent to Mexico under MPP have actually won asylum.
The interview process for MPP has also resulted in family separation, as American officials arbitrarily decide who waits in the U.S. and who waits in Mexico for their hearing. “MPP interviews are a joke. They are a due process facade,” says Reichlin-Melnick.
While migrants and would-be asylum seekers wait in Mexico, they are essentially homeless with few ways to support themselves. Migrants in border towns find that the cities’ shelters are full. The Mexican government is not monitoring them, so there’s no way to track migrants either. And it’s not just Central American migrants; the new policies have also delayed migrants from Haiti and African countries such as Eritrea and Cameroon.
“Undoubtedly, [MPP] leads to people being returned to places where they might be in danger,” says Reichlin-Melnick. “For one of the 35,000 who have already been sent back under MPP, whether or not this is a violation of international law is largely irrelevant. They are already facing the homelessness, and the danger, the uncertainty of being placed in this program.”
MPP places migrants in cities the U.S. State Department advises U.S. travelers not to visit, and State even advises its own employees about which areas of those cities to avoid. Immigrant rights groups argue that these cities place migrants—already particularly vulnerable populations—at risk of kidnapping, extortion, rape, and murder. “To those already sent back, the question of whether this violated human rights law is kind of a cold comfort,” Reichlin-Melnick said.
“The whole ‘Remain in Mexico’ violates [non-]refoulement, let alone if Mexico is dropping them at the Guatemalan border with no arrangements,” said Deborah Anker, a professor who specializes in asylum law at Harvard.
THIS NEAR-REFOULEMENT has enabled President Trump to claim victory on immigration policy. His efforts to outsource migrants to Mexico, and to some extent to Guatemala, have had some success. His tariff threat intimidated Mexico into largely accepting growing numbers of migrants within its borders, thereby decreasing the number of people crossing into the U.S. Recently, the Mexican government deployed new border patrol officers, though Maureen Meyer of WOLA told me they are barely trained and are largely former military personnel.
Mexico insists that it is “doing well” in addressing President Trump’s immigration demands by reducing the number of migrant apprehensions, as Mexican President Andrés Manuel López Obrador said this week. But Trump has not yet said if it has been enough—and consequently if he will drop the tariff threat. Although fewer people cross in the summer, the recent dip is proportionally higher than a typical seasonal decline. August’s numbers were still higher than last year, but Mexico’s cooperation is integral to Trump’s success. Trump officials touted the pact just as Mexican officials made a trip to Washington last week to discuss the details of the June agreement.
Even before “Remain in Mexico” forced nearly 40,000 people to wait in Mexico’s border towns, Mexico was not known for exemplary migrant protections. In January 2018, Amnesty International released a report based on a 500-person survey of migrants from Guatemala, El Salvador, and Honduras that indicated asylum seekers were being denied protection and deported, even to their death. Despite testimonies that showed asylum seekers’ fears of persecution or violence in their country of origin, Mexico’s National Institute of Migration (INM) was deporting many claimants. The survey found that three-quarters of people detained by INM were not told of their right to seek asylum in Mexico.
Mexico claims that its more recent busing was voluntary, and more closely resembled the voluntary deportation usually conducted by the International Organization for Migration (IOM), which is largely American-funded. IOM has more extensive protocols for “voluntary deportation” than Mexico, but immigrant rights advocates still object that the standards are not high enough. Joel Millman, press officer for the IOM, confirmed to me that this busing incident was not IOM, but that the agency does have a program for Mexico. “[Voluntary deportation] is the kind of work we get asked to do everywhere in the world every day,” Millman says. In fact, as the Los Angeles Times’ Molly Hennessy-Fiske reported, more than 2,200 migrants have been transported back to Central America from Juárez and Tijuana.
“There has to be a point at which this becomes such a problem for Mexican cities on that side of the border where they can’t deal with it anymore, which is why you saw the buses happening and taking people to another [city],” added Reichlin-Melnick.
THIS IS NOT THE FIRST TIME the U.S. has been involved in “refoulement.” In January 2003, just before the U.S. and Canada reached a “safe third country” agreement, Canada employed a policy known as “direct-backs.” Much like “Remain in Mexico,” under direct-backs the Canadian government stated that refugee claimants at the U.S.-Canada border who cannot be immediately processed upon arrival were to be sent back to the U.S. until their appointment time in Canada. The instructions specified that this was the policy even if the claimant would be detained by the U.S. government, and therefore unable to return to Canada. This policy—albeit short-lived—meant that the U.S. did in fact deport six claimants who were waiting for their appointment in Canada. By doing so, the U.S. engaged in what is known as “chain refoulement,” where both Canada and the U.S. are responsible.
Shortly after these episodes, Canada and the U.S. reached a safe third country agreement, under which asylum seekers are required to file for asylum in whichever of the two countries they reach first. Despite concerns about fair hearings, asylum seekers traveling north were forced to file in the U.S. If asylum seekers are rejected, then they may apply elsewhere.
Safe third country agreements have also been floated to deal with asylum seekers at the border. The Trump administration tried unsuccessfully to force just such an agreement on Guatemala—a country with steep levels of violence and widespread poverty. Guatemalans are heavily against the agreement, and it’s unclear if the idea will make it past the country’s highest court.
FitzGerald told me that these bilateral talks have been unusual. It’s a lot of “might makes right,” he says. “That’s not usually how this kind of pressure happens in cases of externalization. Usually the stronger country is giving out more carrots, and then if they are applying more sticks they do it quietly.” Instead, the Trump administration has applied tariff pressure to Mexico, and cut aid to countries including Guatemala.
But without a bilateral agreement, deporting asylum seekers—or busing them to another border—comes much closer to refoulement. MPP itself is operating as a kind of refoulement, and if Mexico buses asylum seekers back to Guatemala’s border, it’s nearly the chain refoulement that embroiled Canada and the U.S. nearly two decades ago. MPP has yet to be heard on the merits in court, but in the meantime, its operation could already be violating international law.
If it’s true that Mexico is running a quasi-deportation program to mitigate pressure on their own system by offloading it to Guatemala, the U.S., Mexico, and Guatemala could potentially be in violation of international law. But perhaps more importantly, American policy is forcing migrants into a false choice: minimal safety in Mexico or returning to the very dangers from which they had fled.
“You don’t need to know it’s illegal to know that it’s immoral,” Reichlin-Melnick says.