Commentary: ‘Third Country Rule’ flies in face of American ideals

Asylum-seekers line up for a meal at El Barretal shelter in Tijuana, Mexico, December 2018. Photo by Daniel Dreifuss / United Nations Refugee Agency


By Barbara Franz

After a group run at Loantaka Reservation last week, we met for pizza and beer. Very quickly, a gripping discussion transpired about President Trump’s most recent plans to force refugees to apply for asylum in the “safe” countries they travel through on their way to the USA.

The argument sounds logical. Most asylum seekers come from Honduras, Guatemala, and El Salvador and travel through Mexico to get to the USA.

Considering the humanitarian disaster unfolding at the southern border, with 688,375 people apprehended in Fiscal Year 2019 alone, one of my friends felt it’s prudent to declare Mexico should be responsible for refugees seeking to enter the US because “our country is full.”

The administration has implemented so-called metering at the border crossings since May 2018.

Barbara Franz
Barbara Franz

Metering describes the practice of officials, stationed at official ports of entry, notifying arriving asylum-seekers that U.S. border crossings “are full” due to “limited processing capacity,” and they must wait in Mexico until space becomes available.

This policy was formalized with the Orwellian-sounding Migrant Protection Protocols (MPP), a program also known as “Remain in Mexico.”

This program has left approximately 19,000 people stranded in Mexico waiting to enter U.S. territory to seek asylum here.

On Wednesday, Judge Timothy J. Kelly of the Federal District Court in Washington declined to issue a temporary restraining to stop the government from banning asylum for most Central American asylum seekers.

Kelly said he did not see this refusal posing any “irreparable harm” to the advocacy organizations that brought the legal case.

However, a couple of hours later, Judge Jon S. Tigar of the United States District Court in San Francisco issued a preliminary injunction against the new rule. It means the Trump administration cannot use the rule to restrict access to asylum procedures for refugees.


A refugee seeking asylum in the U.S. is not the same as a migrant. To receive asylum in the U.S., the refugee must go through a rigid process showing a clear possibility of harm or torture.

American law stipulates that every person fleeing from or fearing persecution in his or her country of origin because of race, religion, nationality, membership in a particular group, or political opinion is eligible for asylum in the USA and is permitted to stay in this country.

Refugees seeking asylum must show they are not simply fleeing poverty and a dire economic situation. Therefore, refugees are not “economic migrants” seeking to exploit the generous American asylum system, but rather people who cannot return to their places of origin for fear of losing their lives.

That is a crucial difference that needs to be recognized.

On July 16, 2019, the departments of Homeland Security and Justice issued a new rule severely curtailing America’s asylum law.

Going forward, asylum seekers who do not come directly to the USA via plane or boat only will be considered for asylum if either (a) they applied for, and were denied, protection in a country of transition; (b) were victims of trafficking, or (c) transited through countries that are not parties to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

International law — specifically, the 1951 United Nations Refugee Convention– imposes no obligation for refugees to claim asylum in the first safe country they reach.

The new U.S. rule stipulates that section 208(b)(2)(C) of the Immigration and Nationality Act (INA) gives the administration the right to re-write law without going through Congress.

This “right” appears questionable, considering it takes both Houses of Congress and the Executive to pass legislation. Yet the INA states: “The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1).”

The key phrase, for me, is “consistent with this section.” Section 208(b)2 outlines reasons for denying asylum. According to the INA, a person shall be turned away if he has been involved in the persecution of others, has committed or is convicted of a crime, endangers the security of the US, is involved in terrorist activities, or is firmly resettled elsewhere.

All of these clauses describe the alien applying for asylum, not the situation at the border. It is clear that the new limitations and conditions are not “consistent with” the eligibility criteria for asylum.

Indeed they have nothing to do with these criteria and instead are a result of poor administrative handling of asylum seekers that created and exacerbated the crisis at the border.

The rule is entitled “Third Country Asylum Rule.” Its intent is clearly to shift the burden for the people gathering on the southern border to Mexico. The rule is part of a broader initiative to pressure neighboring states to become “buffer zones” against unwanted flows of asylum seekers.

This rule was issued after the U.S. was unsuccessful in signing a Safe Third Country agreement with Mexico or Guatemala. But the U.S. cannot declare a country as safe without having a formal agreement with the nation in question.

Whether countries like Mexico and Guatemala really are safe for refugees and migrants is questionable. Amnesty International states that the Mexican asylum system is “underfunded, absolutely beyond its capacity and inadequate in identifying even valued asylum claims.”

And the State Department has stated that Central American migrants are in danger in Mexico and Guatemala, where they are victims to threats, extortion, and violence by both government officials and criminal gangs.

Moreover, how can a third-country be considered safe when the country’s own nationals seek to flee? Guatemalans and Mexicans also are fleeing their respective homelands — albeit not on the large scale of other Central American countries.

The Trump Administration’s Third Country Rule is contrary to U.S. and international law regarding the protection of asylum seekers.

Members of Congress and regional and local advocacy organizations, such as Wind of the Spirit, know that Mexico and Guatemala cannot provide refugees with the protection or due process required under international law.

The Third Country Rule is just another move to dismantle America’s asylum law and rigidly vetted refugee program, which protect persecuted individuals and grant them the opportunity for a new life here.

To close these doors not only flies in the face of international law. It also further diminishes our humanitarian (Christian) responsibilities toward the less fortunate.

So, to sum up for my friends from last week’s run:

  • Our country is not “full.”
  • We cannot unilaterally declare another country to be responsible for refugees who want asylum in the USA.
  • Simply declaring another country to be “safe” does not mean it is safe for refugees, as noted by our own State Department and Amnesty International.
  • Only those who can demonstrate they are attempting to escape a situation in which they are at risk of harm or torture are admitted.
  • These are not people whose purpose is to steal jobs from Trump’s base, but people who legitimately fear for their their lives if they are not admitted as refugees.
  • To ignore the plights of people who cannot return home for fear of losing their lives ignores the international conventions and protocols to which we are signatories, and flies in the face of what our country stands for.

Barbara Franz, Ph.D., is a political science professor at Rider University, and a Morristown resident.


Editor’s note: The opinions expressed above are the author’s, and do not necessarily reflect those of this publication.

[interactive_copyright_notice float='left']
[icopyright_horizontal_toolbar float='right']


  1. Fascinating how many points there are in common with John Q. Public’s post and the El Paso murderer. The same “lay down in front of our neighbors”, the same “America First”… imagined shortages of resources where we point not at those that hoard them, but those who have the least.

    And most of the people I find who complain about the “new” immigrants – they can trace their family roots to a time when we had open borders, a time, in the words of Ken Burns, when “Europe was vomiting” and flooding the US with peasants fleeing economic hardship at home. And these same people turn around and have issues with people streaming in from countries that WE BROKE with our awful Central American foreign policies.

  2. Looks like the usual naysayers, John Q. Public, JT and Jeff, still afraid to use their names but can’t resist posting more comments that only reveal their lack of compassion and negative views about others.
    .At least Fern Wolkin shared a viewpoint, that while it may be true for some asylum seekers, is certainly not the case for the infants and young children or those who had sponsors here, waiting for their arrival. Many others feared for their lives or they would never have risked the dangers of escaping to our country, which is supposed to be safe and protect its citizens
    . How many of the horrible conditions in countries south of our border were a result of dictators supporters by Trump or policies he established there.

  3. One omitted fact: it is very easy to apply for refugee status at a Port of Entry; the 688K arrests are illegal border crossers, who may or may not be refugees, but many are attempting to enter because they are migrants who fear that Trump will close the border/build the wall. Still in all of 2018, only 92k claimed asylum suggesting Ms. Franz is wrong…From her pulpit, this diatribe sounds like Ms. Franz would prefer the United States lay down in front of our international neighbors (and trade counterparties) so the press can manipulate the public’s perception. We all deserve a fair deal for economic opportunity, be it at the Ports of Entry in CA/AZ/NM/TX (or at the Ports of Newark) They should come legally. Our government should negotiate a decent agreement is fair and doesnt take pity/favor Canada/Mexico (NAFTA) or Europe or China. Let’s take care of ourselves first. NJ has a direct parallel. Left wing politicians who pander to unions with pension benefits have almost bankrupt our state. What good have the democrats done in Camden, Newark or Trenton? Same goes for AOC and the Squad who would prefer to pad their parties base in an effort to fight Trump. To all of them, lets not be hard hearted, but lets take care of home before we take in more unless they walk in the front door, keep out.

  4. Thank you for putting the reality for refugees/asylum seekers in your column. Those who seek to pull up the draw bridge after their families have gotten into this country, many without any fear for their lives, but more economic hardships, do not even try to understand why these people are coming here. No one takes their children on an arduous journey thousands of miles because they want to take someones job in the US. Examine your reasons why you want to turn these people AWAY. Could it be the color of their skin?

  5. If refugees don’t want to wait their turn at legal ports of entry at the Southern Border, there are 9 US consulates in Mexico where they can file their asylum claims.