The Volokh Conspiracy

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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.


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.