Immigration

U.S. and Mexico Harassing Journalists, Lawyers, and Activists at the Border

How to ensure lack of transparency and prevent asylum seekers from accessing rights.

|The Volokh Conspiracy |

Thank you to Eugene for the warm welcome! I look forward to many contributions and conversations on the blog.

The Intercept writes about disconcerting developments at the U.S.-Mexico border. According to reporters, a number of photojournalists, lawyers, and others have been increasingly subjected to secondary screenings, holding, searching of their cell phones, and even withholding of food and water when attempting to enter Mexico. Some have been sent back to the United States without ever being able to enter at all. Much of this appears to be the result of requests by the United States to have these individuals prevented from documenting how asylum seekers are treated or helping them to navigate the immigration process. One example of the role of photojournalists has been to provide evidence that U.S. Border Patrol agents routinely turn away asylum-seekers who crossed the border, failing to process them first as the law demands.

Mexican government agents seem to have been rather vague in their explanations for why journalists and others have been receiving secondary screenings or have been turned away, but a number have blamed it on instructions from the United States. The Trump administration has been putting pressure for some months on asylum seekers to wait in Mexico and only enter the United States once/if they receive a positive adjudication the U.S. immigration process. The recent stories from the border, including that immigration lawyers were prevented from entering, strengthens the suspicions of many that the Trump government is actually seeking to hinder even that possibility.

Underlying all these activities at the border is a deep layer of secrecy that my coauthor Cassandra Robertson and I have criticized before in our Emory Law Journal article about the no-fly list. For the recent events at the border, many questions remain unanswered. What criteria did the U.S. government use to put particular journalists and lawyers on watchlists that it shared with the Mexican government? How can inclusion on those lists be challenged? Is the Mexican government cooperating willingly when scrutinizing or rejecting the individuals on the lists or has the Trump administration threatened any sanctions if Mexico does not comply?

Lack of transparency breeds lack of transparency, and the denial of basic rights at the border–both for asylum-seekers and those who wish to aid them–does not bode well for the rule of law and human decency in the days to come.

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  1. Who wrote the OP? (There is no byline. Yet??)

    1. You can consider it one of those editorials where they don’t list the author because it speaks for the entire paper. We all know they feel this way about drumpf anyway. Or at least Ilya does and he writes half the content here.

  2. Is this post being submitted Per Conspiratoriam?

  3. The post is heavy on *rights*. What *rights* does the US promise a Guatelmalan seeking asylum?

    1. Those established in the 1967 Protocol_Relating_to_the_Status_of_Refugees, to which the US is a signatory.

      Some interesting ones includes:
      > [16.]1. A refugee shall have free access to the courts of law on the territory of all
      Contracting States.
      > [22.]1. The Contracting States shall accord to refugees the same treatment as is
      accorded to nationals with respect to elementary education.
      > [31.]1. The Contracting States shall not impose penalties, on account of their
      illegal entry or presence, on refugees who, coming directly from a territory
      where their life or freedom was threatened in the sense of article 1, enter or
      are present in their territory without authorization, provided they present
      themselves without delay to the authorities and show good cause for their
      illegal entry or presence.
      > [33.]1. No Contracting State shall expel or return (“refouler”) a refugee in any
      manner whatsoever to the frontiers of territories where his life or freedom
      would be threatened on account of his race, religion, nationality, member-
      ship of a particular social group or political opinion.

      Now, there are a whole bunch of limitations as to *who* all this applies to, but there are definitely rights the US has said that they would guarantee.

      1. There are people whose lives or freedom are threatened in Mexico?

      2. Unless you have differing information, it looks like this treaty hasn’t reached 2/3rds majority in a ratification vote in the Senate. Vote taking place in 1968. So not sure why you think this is a binding treaty.

        1. Some people claim we’re bound to respect unratified treaties that have been signed by a President, per the Vienna Convention on Treaties.

          It’s not irrelevant that the Vienna Convention on Treaties was signed by a President, but never ratified.

          The Executive branch takes this position, but then, they would, wouldn’t they? The Senate understandably takes the opposing position, which is that if they haven’t ratified a treaty, it doesn’t mean anything.

          The difference, of course, is that the Senate has the Constitution on their side, and the Executive branch doesn’t.

          1. I just like pointing out that first, rights arent granted by a document. They are assumed. And second. If citing a document make sure it has a legal or constitutional backing. Wnoise failed both premises.

            1. Of course the point here doesn’t really have anything to do with treaties or rights, but with the fact that this administration is trying to cover up what it is doing at the border. Why would they do that if everything were legal and above board?

              1. What is being covered up exactly? There are a lot of inferences, very few specifics.

              2. Have you considered the possibility that the the ‘journalists’ are actually provocateurs? Helping to organize what they’re nominally just reporting on? This is not uncommon.

                The phrase, “photojournalists, lawyers, and others” is somewhat revealing; This isn’t aimed at journalists, specifically.

                And the events in question are illegal. So if the ‘journalists’ and others are assisting them in some way, they’re part of a criminal conspiracy.

                Just calling yourself a “journalist” doesn’t give you some sort of legal immunity for being part of a criminal activity.

  4. This all sounds very vague and iffy. I would find Ms. Manta’s comments more useful if they were grounded in fact. Now that I think about it, that’s true of most opinion pieces.

  5. To provide some perspective:

    (1) Mexico is under no obligation whatsoever to allow entry to non-Mexican journalists and activists. Under Mexican law, they can bar them for good reason, bad reason, or for shits and grins.

    (2) Mexico is a sovereign nation. Neither Donald Trump or ICE dictate Mexico’s policies or decisions, which ought to be abundantly obvious, given that Mexico still allows the caravans to enter and transit.

    1. Perhaps we should at least hold our own CBP to account.

      Actually, let’s start at the very least we can do: for folks in secondary screening for more than 2H, give them a water bottle, bag of chips and access to a toilet. Surely that’s the absolutely minimal level of decency we can afford a human being while they are temporarily detained.

      1. When the DMV gives us such amenities first, then we can expand where these amenities exist.

        1. OK, then let people leave the CBP secondary screening process whenever they feel like it.

          After all, no one is forced to remain at the DMV against their will.

  6. Lack of transparency? An interesting objection when the referenced sources fail for the most part to identify the ‘activists” or photojournalists” allegedly harassed (or the parties who employ or subsidize them), not to mention the lack of any credible facts to substantiate a claim that US border officials are acting in contravention of the law.

    1. The intercept is bigger on chicken little than on facts and figures, with the general exception of Glenn Greenwald’s pieces. I do wish he’d try and moderate the others contributors’ sturm und drang a bit, it’s his site after all.

      1. Oops, I see JesseAz beat me to it.

  7. Obviously, the laws pertaining to asylum need to be reformed. Hundreds of thousands of migrants are abusing the system. Heartbreakingly, they are using children to do it, because that’s the incentive that has been deliberately created as a way of ensuring continued illegal immigration.

    1. You are insane. A simple claim of Asylum should grant every global citizen a temporary 3 year visa! That is what our immigration laws state!

    2. Sure, but if so they should be reformed by Congress. Not by the Executive unilaterally refusing the duties imposed (e.g. by 8 USC ??1158).

      It’s as if we have an entire branch of government whose job (it seems) is to investigate whether the rules are functioning as intended and to amend or reform them as prudent.

      1. That kind of analysis only applies when the executive branch is acting in ways a conservative would disapprove of.

  8. Wow, The Intercept as the basis for an article. Didn’t think I’d see that here. The Intercept continually runs anti-semetic articles and is an SJW breeding ground for the ultra left who see themselves as reporters. It is ironic that Glenn Greenwald is the de facto leader of the site even as he writes articles calling out the left and their insanity in regards to trump, yet 90% of the other articles on his site are the very sort of articles he decries. The Deconstructed podcast is just a glaring example of rambling anti trump and anti israel crap.

    1. JesseAz: “who see themselves as reporters.”

      That would explain why there are a number of allegations with no information on who reported said incidents or information on who was affected (though The Intercept writer wrote as /though/ such information was available). There is /one/ link — to an LA Times article that is /also/ in the OP. So the Intercept piece is useless except as a source of anonymous allegations — including allegations that Mexico us merely a cat’s paw of the U.S.

      It appears (if the alleged incidents actually occurred) that Mexico is playing hardball with some U.S. journalists and immigrant rights attorneys–for reasons unknown to us.

  9. Why do liberals want to turn America into a mestizo nation?

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