Excerpted From: Claire R. Thomas, The So-called Stateless: Firm Resettlement, African Migrants, and Human Rights Violations in Mexico, 32 Boston University Public Interest Law Journal 43 (Winter, 2023) (365 Footnotes) (Full Document)


ClaireRThomasFor decades, Mexico has cooperated with, or been complicit in, U.S. demands to prevent asylum-seekers and migrants from reaching the U.S. border. According to Todd Miller in his work entitled Empire of Borders, “Mexico had in a serious way been ‘hired’ by the United States to ‘protect’ the U.S. border from 1,000 miles away.” Notwithstanding Mexico's role in doing the “dirty work” of the United States, people continue to travel through Mexico. Preliminary data and anecdotal interviews suggest an increasingly diverse group of migrants and asylum-seekers are transiting through Mexico en route to the United States. The numbers of extracontinental migrants and asylum-seekers, particularly those from Africa, have risen sharply in the past five years. In fact, the number of African nationals found by migration authorities in Mexico almost quadrupled to nearly 3,000 people between 2014 and 2018. Subsequently, in 2019, Mexico detained 7,065 African nationals. The same year, “more than 1,600 African nationals from thirty-six countries” were apprehended in a single U.S./Mexico border sector.

Despite their small numbers when compared to Central Americans in migration, the increasing numbers of extracontinental migrants and asylum-seekers transiting through Mexico garnered more attention and scrutiny under the Trump Administration. Previously, extracontinental migrants were able to obtain a transit or exit visa (an oficio de salida or a salvoconducto) allowing unrestricted passage through Mexico for a period of twenty days. In May 2019, the United States threatened to impose tariffs on Mexico unless it curbed migration to the U.S./Mexico border; in response, Mexico enacted more barriers for asylum-seekers traveling through the country. Mexico's response included the deployment of the Mexican National Guard along Mexico's northern and southern borders, as well as militarized checkpoints throughout the country. In addition, the United States adopted systems of “metering” at ports of entry along its southern border with Mexico to restrict the numbers of individuals who could seek asylum on any given day, creating long wait times of many months in border cities. The Migrant Protection Protocols (MPP), a program created under the Trump Administration in which asylum-seekers were returned to Mexico to wait for their immigration court hearings in the United States, significantly increased the number of asylum-seekers in Mexico. The COVID-19 pandemic caused further chaos and uncertainty for those trapped in Mexico as the border between countries has been closed to asylum-seekers since March 2020. As a result of actions by both the United States and Mexico, tens of thousands of asylum-seekers are now in Mexico, which has transitioned from a country of transit to now a country of perpetual waiting. Interestingly, the number of migrants applying for asylum in Mexico is also increasing, with claims almost doubling between 2019 and 2021. Over 130,000 persons applied for refugee and asylum protection in Mexico in 2021 alone, surpassing all previous records for applications.

In recent years, Mexico began to label certain irregular African migrants and asylum-seekers as “stateless,” allowing them to have legal documentation to travel from the southern Mexican border to the U.S. border. Under the operation of Mexico's migration laws, these so-called stateless individuals are then awarded permanent residence status in Mexico--without ever applying for or consenting to it--which allows them to live and work in Mexico indefinitely. While at a glance, this might seem to be a benign attempt by the Mexican government to provide solutions for those caught in liminality, the award of permanent residency in a third country has severe repercussions for future asylum claims in the United States: namely, triggering the “firm resettlement” statutory bar to being granted asylum. In short, an applicant may be denied asylum protection in the United States if they receive an offer of permanent resettlement in another country before they reach the United States. U.S. regulations do not require that the applicant actually accept the offer in order for the firm resettlement bar to apply.

This paper will explore Mexico's reactionary migration policies, especially concerning the labeling of African migrants and asylum-seekers as “stateless” and the subsequent unsolicited permanent residence status it offers, and address the numerous international and domestic legal violations contained within. Part I of this Article presents the lived experiences of African asylum-seekers traveling through Mexico in 2015 and 2019 to demonstrate the direct impact of Mexican migratory policy changes. Many Black migrants and asylum-seekers, as well as Afro-Mexicans, have raised awareness of anti-Blackness in Mexico and of how racism is pervasive. Part II of this Article explains Trump-era changes to U.S. immigration policies, many of which continue under the Biden Administration. This Part first addresses those policies directly promulgated by the United States, and subsequently focuses on Mexican immigration policies affecting migrants in transit. Part III of this Article explores the concept of statelessness, including the internationally recognized legal definition, legal norms, and regional instruments. This Part discusses Mexico's interpretation of statelessness and how it disproportionately, if not entirely, impacts Black migrants. Part IV of this Article explains the harm to U.S. asylum claims caused by the offer of permanent residence in a third country such as Mexico, namely the firm resettlement bar. Part V addresses possible solutions moving forward, in both U.S. immigration law and in Mexican law, on domestic, regional, and international levels. Such proposed solutions aim to prevent more persons in migration from being issued a legal status which they did not understand, want, or consent to, and which has severe adverse impacts for their future migration goals.

[. . .]

In both its Migration and Refugee Laws, a decade old and aligned with international standards, Mexico holds the promise of protection for those in need. In practice, however, Mexico seldom delivers on this promise of protection. Black migrants are particularly impacted by the interconnected barriers posed by racism and xenophobia in every encounter with governmental authorities in Mexico. According to researchers:

In the context of Mexico, the lack of involvement of the state, the migrants' lack of financial resources to access market-provided services, the small size of the African community, and the mistrust of other migrant groups (partly induced by the government), leave individual migrants dependent almost solely on the [civil society] and their transnational social networks.

While Mexico might argue that any migrant entering Mexico irregularly without an embassy or consular representation might be labeled “stateless” and granted permanent residency, the practical result is that for a time in 2019 and 2020, only Black migrants were labeled as such. The result is an example of indirect discrimination, in that a policy or procedure is written to be applied equally to all persons but, in practice, it puts persons in a particular protected group at a disadvantage when compared to other groups. Here, the law makes no mention of race, yet it disproportionately, if not entirely, impacts Black migrants.

What is not clear, and will perhaps never be fully illuminated, is whether the Mexican government knew the impact that an offer of permanent residence for the so-called stateless would have on future U.S. asylum claims: namely, triggering the firm resettlement bar. Were Mexico's actions negligent, reckless, or both? What is clear, however, is that Mexico labeled predominately--if not exclusively--Black African migrants as “stateless,” based not on the internationally recognized legal definition, but on an outdated concept of “no effective nationality” for those who did not have an embassy or consular representation in Mexico.

Interestingly, while U.S. regulations are clear that a person could be found to have been “firmly resettled” even if they do not accept the permanent residency offered, there is an absence of case law on whether a person can be considered to have been firmly resettled if they did not consent to it, received no translation or interpretation in interactions with the granting country's migration authorities, and did not actually know or understand the legal immigration status they were receiving. Advocates should argue that forced permanent residency or legal status in a county of transit does not equate to firm resettlement, but is instead the consequence of the externalization of borders for people in migration.

The closure and increased danger of traditional routes to Europe has increased extracontinental migration to Latin America. The solution to the so-called “crisis” is a regional solution based on the premise that migration in and of itself is not a crisis, but that the crisis is the border as “a central modality for state formation, hierarchical social ordering, and population control through exclusions and expulsions.” From denial of language access, to lack of information, to perpetual liminality, the treatment of people in migration in Mexico presents numerous human rights violations. As the United States dithers and delays in adopting migration policies which respect human rights and are in accordance with international norms and treaties, people are victimized and some die on the other side of the border. The United States has outsourced its border control to Mexico, and in turn, Mexico, with its militarization, checkpoints, and controls over people in migration, has itself has become the border wall.

Claire R. Thomas is an Assistant Professor of Law and the Director of the Asylum Clinic at New York Law School.