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The Implications of the Biden Asylum Rule in Mexico, Costa Rica, Colombia, and the Northern Triangle Nations

On May 11, 2023, the Biden administration started implementing a rule that creates a presumption of asylum ineligibility — with limited exceptions — for migrants who travel through a third country unless they apply for and are denied asylum before reaching the United States. The rule, dubbed “Circumvention of Lawful Pathways,” puts additional pressure on the already overstretched and underfunded asylum systems of regional partners across the Western Hemisphere.

In this paper, we explore the asylum systems of the following countries that are already playing critical roles in resettling and protecting migrants in the region and which are likely to face an uptick in asylum applications due to the new rule:

  • Mexico — The world’s third-largest recipient of asylum applications.
  • The Northern Triangle Nations A region composed of El Salvador, Honduras, and Guatemala facing a growing number of asylum seekers in transit to the United States.
  • Costa Rica — The largest recipient of Nicaraguan refugees.
  • Colombia — The largest recipient of Venezuelan refugees.

We use this analysis to determine whether these countries represent efficient, functional, and viable alternatives for migrants to seek asylum. While the legal frameworks and administrative approaches to asylum vary in these countries, they all share a commonality: Their asylum systems are facing unprecedented increases in asylum applications that have generated funding and infrastructure challenges hindering their optimal performance. Worryingly, the Biden administration’s rule will only exacerbate these problems, jeopardizing the well-being of would-be asylum seekers throughout the hemisphere.

Mexico’s Asylum System

Mexico is the third-largest recipient of asylum applications in the world. Historically, the country had been almost exclusively a country of origin and transit for asylum seekers fleeing to the United States. In recent years, however, a shift in hemispheric migration patterns has catapulted Mexico into one of the world’s most sought-after countries of destination.

Between 2014 and 2022, Mexico registered a 9,000% increase in the number of asylum applications — from 1,296 to 118,478. The new and unexpected situation has forced Mexican authorities to improve the country’s legal framework and expand the capacity of its refugee agency. As a consequence, Mexico’s asylum legal framework is, in theory, among the world’s most inclusive and protective of asylum seekers. However, despite the improvements, the administrative authorities reviewing asylum applications are significantly underfunded and overstretched. In addition, Mexico’s economic and demographic circumstances are not ideally positioned to absorb large numbers of refugees. Finally, Mexico has systemic problems with gang and gender-based violence, undermining it as a destination country for asylum seekers fleeing gang and gender-based violence.

How to apply for asylum in Mexico?

Asylum seekers looking for protection in Mexico have, in theory, a simple three-step path to being recognized as refugees:

  • Travel to Mexico;
  • Apply for asylum before the Mexican Commission for Refugee Help (COMAR); and
  • Wait 45 business days for COMAR to resolve their cases.

Once in Mexico, all migrants can apply for asylum within 30 days of their arrival before COMAR. To apply for asylum in Mexico, applicants must demonstrate a reasonable fear of being persecuted, imprisoned, or tortured due to their race, religion, nationality, gender, membership of a particular social group, or political opinion. In addition, asylum seekers are eligible for refuge in Mexico if they demonstrate that their liberty or life could be placed in danger by armed conflicts, systemic violence, or substantial human rights violations in their countries of origin. The latter criterion makes Mexico’s definition of “refugee” one of the most inclusive in the world.

Once migrants apply for asylum, the Mexican government allows applicants to work and access all public services, including healthcare and education. As a general rule, COMAR must complete the asylum process and notify the applicant within 45 business days from the date the process started. However, due to backlogs related to the increasing number of asylum applications, some COMAR resolutions are taking up to 100 days. If COMAR denies asylum, applicants have 15 business days to appeal the decision.

Asylum Systems in the Northern Triangle Countries

For decades, Central America’s “Northern Triangle” – Guatemala, El Salvador, and Honduras – has sent migrants and asylum seekers to the U.S. However, these countries have received a growing number of people seeking protection in recent years. Due to ongoing instability in the region and elsewhere, Northern Triangle countries have increasingly become destinations for those fleeing danger in Central America (including within the Northern Triangle itself). In addition, these countries are dealing with an increasing number of migrants from Africa, the Caribbean, and elsewhere traveling northward through the Americas to seek protection at the U.S.-Mexico border. As a consequence, the Guatemalan, Salvadoran, and Honduran governments have found themselves scrambling to offer shelter, health, and other services to asylum seekers, even as they struggle with their own precarious economies and gang-related violence.

In addition, the constant changes in U.S. immigration policies are also impacting the region. From Asylum Cooperative Agreements during the Trump administration to the most recent announcement of regional processing centers, shifting U.S. immigration policies – some constructive, some less so, have placed changing demands and challenges on the asylum systems in Central America, especially in Guatemala, El Salvador, and Honduras.

The three countries recognize the right to seek asylum as a constitutional right. In addition, their respective immigration laws assign government institutions some responsibilities for immigration management. But in the case of asylum seekers, the three countries lack a robust infrastructure to offer support during the asylum petition process and help with resettlement once an applicant’s petition is approved.

Recent assessments by the International Organization for Migration (IOM) show that the countries’ asylum infrastructures and legal frameworks are insufficient to guarantee the protection of asylum seekers in the Northern Triangle. Accordingly, their governments are reliant on international organizations like UNHCR and local organizations to support asylum seekers and migrants. In short, the three countries possess basic legal frameworks to respond to regional asylum claims but lack infrastructure and detailed legislation to offer comprehensive protections to those who have fled danger.

For now, El Salvador, Guatemala, and Honduras mostly remain transit countries for asylum seekers from other countries. In general terms, the migrant population is still low in the region – under 1% of each country’s total population is comprised of migrants (0.4% in Honduras, 0.7% in El Salvador, and 0.5% in Guatemala).

This situation could change following the Biden administration’s recent announcement that it would be opening a regional processing center in Guatemala (and possibly more throughout the region) which could allow vulnerable migrants to apply for asylum in the United States, Canada, or Spain. Even if asylum seekers are not initially applying to be resettled in one of the Northern Triangle countries, the region may see a spike in arrivals from the Caribbean, Africa, Asia, and South America.

How to apply for asylum in the Northern Triangle countries?

Guatemala — Asylum applicants must present a request for asylum at any port of entry or the offices of the Department for the Recognition of Refugee Status (DRER) in Guatemala City. Two weeks after applicants file their petitions, asylum seekers are called for an interview. Within 30 days after the interview, the Guatemalan government has an obligation to issue a resolution. If the resolution is not positive, the applicant has ten days to appeal the decision.

El Salvador — Asylum seekers must present their asylum application within five days after arriving in the country at any port of entry or immigration office. Immigration personnel will submit the case to the Commission for the Determination of the Status of Refugee (CODER), which receives 30 days to make a determination on the asylum claim. If the request is denied, the applicant has three days to appeal.

Honduras — Applicants must fill out the asylum application form at any port of entry or a police station if there is no port of entry in the area. Once the application is submitted, the Honduran government issues a provisional permit that allows applicants to remain in the country without fear of deportation while their application is in process. The Honduran Refuge Commission analyzes the petitions and can request information from the applicant’s home country through the local embassy.

Costa Rica’s Asylum System

Costa Rica is one of the world’s largest recipients of refugees and asylum seekers per capita. With 5.2 million inhabitants, Costa Rica hosts over 233,000 asylum seekers and refugees, representing 4.5% of its population. Notably, the number of refugees and asylum seekers has increased by almost 3,000% since 2016, mainly due to an increase of Nicaraguans, who represent around 90% of the total. This substantial uptick – which positioned Costa Rica among the top four countries with the most asylum applications per capita worldwide – has severely strained Costa Rica’s already-stretched and underfunded asylum system.

Worryingly, according to the Costa Rican government, the country’s asylum system is so backlogged that it takes, on average, between two and seven months to get an appointment to apply for asylum and more than a decade to resolve an asylum claim. In addition, according to UNHCR, Costa Rica’s asylum system is severely underfunded.

How to apply for asylum in Costa Rica?

Asylum seekers looking for refuge in Costa Rica must follow three steps:

  • Travel to Costa Rica;
  • Apply for asylum at ports of entry or before Costa Rica’s Restricted Visas and Refugee Commission within 30 days of entering the country; and
  • Wait for a resolution of the claim for asylum, an average of more than a decade.

To apply for asylum in Costa Rica, applicants must be physically present in the country and demonstrate a reasonable fear of being persecuted in their countries of origin due to their race, religion, nationality, gender, membership to a particular social group, or political opinion. Costa Rica’s government estimates that between 80% and 90% of asylum applicants do not qualify for protected status under international and domestic law because they are considered economic migrants. Under Costa Rican law, however, if the government denies someone refugee status, the petitioner has the right to appeal the decision within three days of that notification.

Notably, while an asylum application is still under consideration, Costa Rican authorities cannot expel asylum applicants from the country. In light of its growing backlogs leading to multi-year stays by asylum seekers as their cases are pending, the Costa Rican government recently has begun permitting asylum seekers to obtain employment authorization documents three months after filing asylum applications.

Colombia’s Asylum System

As Venezuela’s neighbor, Colombia has shouldered much of the regional humanitarian response to a massive forced displacement crisis there — the largest ever recorded in Latin America. As of early last year, Colombia had absorbed nearly 2.5 million Venezuelan migrants and refugees, according to the United Nations High Commissioner for Refugees (UNHCR). The Colombian government has been relatively welcoming to these newcomers and has established a form of temporary protection — apart from asylum — for displaced Venezuelans to live, work, and receive state services.

But at the same time, Colombians themselves are continually being forced to flee amid instability and violence between nonstate factions and the country’s security forces. Subject to decades of conflict, around 6.7 million Colombians are internally displaced within their homeland. Others have made their way to the U.S.

Amid this complex situation, Colombia’s government faces serious obstacles to providing safety and security for its own citizens, not to mention for more vulnerable migrants and asylum seekers from abroad. Venezuelans in Colombia generally lack financial resources, and their circumstances make them targets for exploitation and violence during transit and beyond. In the first half of 2021, Venezuelans in Colombia were victims of over 1,000 assaults and more than 360 homicides, according to a report from the Center for Gender and Refugee Studies. Migrant and refugee women and girls face a high risk of gender-based violence and human trafficking in Colombia, while LGBTQ+ refugees and migrants also endure discrimination.

Besides these extreme physical harms, Venezuelan migrants and refugees confront an unemployment rate nearly double that of Colombian nationals and are often pushed into less regulated, informal sectors. Underfunded and under-resourced public infrastructure like hospitals and schools face strains and have trouble providing necessary services to Venezuelans.

In addition, the Colombian asylum system itself is struggling to keep up. Colombia granted asylum in just over 1,300 cases between 2017 and 2022, a drop in the bucket compared to the tens of thousands of pending petitions in a backlog made worse by the limited asylum infrastructure in the country.

In light of these challenges, Colombia’s former President Juan Manuel Santos, recently cautioned the Biden administration against pursuing a “burden dumping approach” to migration. Santos warned that imposing additional asylum restrictions in the U.S. “would put unsustainable pressure on countries that have led by example, like Colombia.”

How to apply for asylum in Colombia?

Asylum seekers looking for refuge in Colombia must follow a three-step process:

  • Travel to Colombia;
  • Submit an application; and
  • Attend an interview.

Colombia is party to many international human rights agreements that together would theoretically extend asylum eligibility to a relatively broad class of displaced peoples. However, existing operational and situational barriers limit the availability of asylum protections for many fleeing harm.

Asylum seekers can apply for protection after entering by land, at ports, or through airports. They can also apply from within Colombia. While their cases are being adjudicated, they can temporarily remain in Colombia legally and get some of their basic needs met around public health and education. But only after their applications are approved will they receive permission to work, alongside the right to remain in Colombia, get an education, and access health services. Denied requests can be appealed.

Conclusion

The asylum systems of Mexico, Costa Rica, Colombia, and the Northern Triangle countries have all been managing growing caseloads in recent years, with varying amounts of success. However, all these countries face major challenges. Their asylum systems are backlogged and significantly underfunded. Those which offer expansive protections on paper often lack the ability to meet those commitments on the ground.

The Biden administration’s Circumvention of Lawful Pathways Rule will only increase the pressure on these countries. Already facing suboptimal conditions due to insufficient budget and limited capacity, the asylum systems of Mexico, Costa Rica, Colombia, and the Northern Triangle countries, will face additional stresses under the new rule.

 

Author: Arturo Castellanos-Canales, Clara Villatoro, and Alexandra Villarreal

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