Illicit drug and human trafficking has consistently been one of the most challenging phenomenon knocking at America’s back door for decades. In recent years, immigration numbers and violence have exploded on the border, resulting in a surge of anti-immigration sentiment and increasingly repressive enforcement measures in both the US and Mexico. Most scholars, media and public attention has been primarily paid to the legal quagmire that US officials have had to deal within the southern states of Texas, New Mexico, Arizona and California. However, the recent surges of irregular immigration and illegal activities have been traced from a new source farther south at the boundary between North and Central America. At the strong urge of American politicians, the Mexican government adopted a new immigration policy known as “Programa Frontera Sur” or Southern Border Program (SBP) in July 2014. The aim of the program is primary twofold – to ensure greater protection of migrants entering the country and to increase security and promote prosperity in the region. (Wilson & Valenzuela, 2014.) However genuine the efforts at protecting irregular migrants may be however, there are considerable weaknesses and legal ramifications of the controversial program which should be scrutinized and considered. Furthermore, in an attempt to ‘patch the migrant paths’ so to speak, there has been a proliferation of illegal human trafficking accompanied by greater cartel presence and surges in violent incidents. Finally, confirmed reports of unaccompanied migrant children who were denied asylum and in some cases refouled to their home states have been published raising further legal and moral consequences.
With the rise of hardline conservatism in the United States, considerable attention began to be focused on the issue of irregular immigration. While the United States accepts a considerable number of refugees and is home to large irregular immigrant communities, recent attitudes and political rhetoric have began to favor stronger borders and tighter regulation of irregular immigration. However even before this political attitude shift, the Obama administration made considerable efforts to address irregular immigration issues and was the catalyst for the SBP. The secondary reasoning for encouraging Mexico to implement the plan was based on so-called humanitarian grounds, namely the abuse and danger unaccompanied children were facing at the southern border. In recent years, the number of Mexican immigrants actually began to reverse and the newest source of irregular migrants were primarily from Central America. (Donnelly, 2014.) Countries such as Guatemala, Nicaragua, El Salvador and Honduras (henceforth to be referred to as the Northern Triangle of Central America) boast some of the highest homicide rates in the world while cartels continue to battle for dominance of lucrative drug routes. Coupled with government corruption and stunted development, it is not surprising a large portion of Central Americans have begun to emigrate in search of greater opportunities in the US. While a large portion of Central American immigrants are fleeing violence, persecution and alarmingly deteriorated humanitarian conditions, other immigrants flee for socio-economic purposes. This distinction will be important later on in this study.
Many stories have begun to emerge of mass deportations orchestrated by the Mexican government under the auspices of security and tighter border controls. Thousands of asylum seekers have consistently been denied asylum in Mexico or discouraged from applying in the first place. Logistically, the Mexican government faces many challenges such as lack of resources, embezzlement risk, and bureaucratic inefficiency. This has a devastating effect on the asylum granting process whereby one individual can expect to wait up to 6 months for a response all the while being held in deteriorated and inadequate detention centers. (Human Rights Watch, 2016.) Indeed, as Castillo (2016) observes, SBP-related generated data over a 2-year period indicated that the Mexican government indeed prioritized detention and migrant deportation rather than investing in asylum granting processes and higher safety standards. In a July 2014 Senate hearing, Ambassador Thomas Shannon stated that a fundamental part in US irregular migrant curbing strategies was to: “[support] the ability of Mexico and Guatemala to interdict migrants before they cross into Mexico.” (Shannon, 2014.) Between October 1, 2015 and January 31, 2016 Mexico deported over 150,000 central Americans, a 44% increase from the previous year. (Castillo, 2016.) What makes the situation even more complex is whether or not Mexico is legally obligated to accommodate the immigrants, and whether those applying for refugee status and subsequently deported against their will constitutes as refoulement. Furthermore, there is a substantial divide within immigrant groups – namely those who are fleeing legitimate dangers (gang-related more often than not) and so-called socio-economic immigrants that migrate for financial reasons. Those who make up the former, from an international law perspective, should be granted protection from further abuses, and paramount to all – should not be subject to refoulement. The problem herein lies both on the wording of the 1951 refugee convention and on Mexican adherence to the convention itself. Indeed, in formal terms, Mexico is party to both the 1951 and 1967 Convention and Protocol relating to the status of Refugees as of the year 2000. The term “well founded fear” and the 4 fundamental categories which define a refugee (those being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion) are definitions difficult to apply in the context of Central American migrants however. In many cases, individuals are forcibly recruited into gangs and fear criminal prosecution upon return to their home state. Others are caught in the crossfire of gang conflicts but do not fit easily into any of these refugee categories.
US financial assistance is one of the pillars to the SBP and without it, Mexico would struggle immensely more. However, allocation of resources and funds remains a huge issue and there is significant discrepancy between the application of these resources and the rhetoric utilized by both President Enrique Pena Nieto (Mexico) and SBP “principles” (Castillo, 2016.) Between 2013 and 2016 the number of Asylum applicants exploded by 169%, however, the funds allocated to Comision Mexicana de Ayuda a Refugiados (Mexican Commission for Refugee Aid) stagnated at approximately $2 million USD. While the crisis mounted, more emphasis and resources were placed on detention, deportation and border security as demonstrated by the $86 million USD allocated to the Instituto Nacional de Migracion (National Institute of Immigration) which is in charge of these functions (Castillo, 2016.) Clearly this was not a mistake but rather an intentional misallocation of resources in order to rid the migrant problem quickly instead of focusing on longer term, sustainable, human-rights oriented solutions. On the US side, the majority of funding was allocated in a similar fashion. Border patrols were supplemented, and new detainment centers were constructed (Lee & Musalo 2017.) This was conducive to the approach both the US and Mexico were adopting alongside one another; both nations were focusing on the pull factors rather than on the push conditions. The UNHCR has addressed the issue of refoulement with the Mexican government on numerous occasions however the commission lacks strong enforcement capabilities. In 2017, according to the NTCA (Northern Triangle of Central America) situation report, the UNCHR aims to discourage and reduce refoulement cases through: “mass information campaigns, an intensification of detention monitoring and engagement with faith-based shelters.” By engaging grassroots initiatives, the UNHCR aims to reduce the risk of refoulement by informing and spreading asylum procedures. However, as previously stated, the largest propagator of refoulement is the Mexican state itself which needs to be criticized and held accountable in a transparent fashion. Information campaigns only make up one variable in a complex solution. Furthermore, the crackdown and proliferation of apprehension umbers does not necessarily measure success. A by-product of the crackdown was simply a measured increase in human smuggling cases. A 2017 Washington Office on Latin America reported that migrants and smugglers simply:
…adjusted to new security patterns, either by changing routes or by bribing police and migration officials to look the other way. Migrants’ and smugglers’ ability to adapt to hard-line enforcement policies prove that investing in strategies that address the root causes of migration are a better use of resources. (WOLA, 2017) (p. 8.)
Responsibility sharing in the context of the Northern Triangle migration crisis is an integral but largely ignored aspect of the laid-out solution policies. For the US there is little incentive to grant asylum to refugees who do manage to arrive at the southern border. Furthermore, as far as practice and aid allocation goes, the US has made every conceded effort to curb migrant numbers rather than offer settlement options or pressure other nations to accept Central American refugees. Mentioned previously, US and Mexican state focus remains concentrated on the pull rather than the push factors; putting national interests first versus identifying and resolving the quandary(s) in the sending state(s). As both Lee and Musalo (2017) note:
The crisis we face is accordingly humanitarian in nature and regional in scope – and the migrant “surge” is undoubtedly a refugee flow. By refusing to acknowledge and address the reality of the violence and persecution in the [Northern Triangle states], the US government has failed to lessen the refugee crisis in its own region. (p. 139.)
International cooperation on the refugee crisis should also seek to go beyond the US. Canada, should take a much more prominent stand on the migration issue and continue to set a high asylum granting standard. As of this year, the Canadian government continues to view the Northern Triangle migration refugees as financial migrants rather than individuals fleeing death and persecution. The problem from the Canadian perspective is two-fold. For one, geographically Canada is an almost impossible destination to reach physically for refugees. Not only would they have to navigate treacherous and overly militarized Mexican migrant routes, but would also need to illegally cross into the US (which these days is an almost insurmountable task) and then cross into Canada and apply for asylum. Secondly, from a Canadian viewpoint, the central American migrant crisis is largely unreported and has frankly been overshadowed by the Syrian refugee plight. While Syrian refugee numbers dwarf those of the Northern Triangle States, this does not diminish the gravity and necessary attention the crisis deserves. Canada has created an image for itself as an accepting and progressive asylum granting state in the international community. If it wishes to continue projecting and setting this standard then it should take a lead in addressing and proactively accepting Central American refugees. Not only this, but Canada also has the imperative to press the international community to re-define the Central American migrant crisis for what it is: a humanitarian and refugee issue. Only in doing so can the dialogue shift from a preventive tone to a solution driven, holistic approach.
The Central American migrant crisis is an especially dangerous and increasingly bleak prospect for vulnerable groups within the migrant flows, namely women and children. Women have become particularly targeted and victims of sexual assault or kidnapping on the migrant paths in Mexico with little-to-no criminal investigation following. In the Northern Triangle states, domestic abuse cases are astronomically high and many women flee seeking an escape from the cyclical and inescapable violence. According to 2015 UNHCR study, Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico, both Women and children fleeing from the Northern Triangle states “present a clear need for international protection.” (UNHCR, 2015.) For children the allure and pressures to join criminal organizations in the Northern Triangle states are enormous. Many are faced with an ultimatum, joining a local gang or face violent repercussions or death. Many vulnerable and poverty-stricken youth have no choice but to become involved with cartels and gangs. They are then targeted by local law enforcement and find themselves either incarcerated or fleeing from the law. If they choose the latter, they are unable to return lest they face violent responses from their former gang members or the police. One can see the incredible fragility, vulnerability and precarious situation in which the youth and children find themselves in. The youth homicide rates in the Northern Triangle states are some of the highest in the world, where those that fall in the age range of 15-19 are at highest risk of death. (Lee & Musalo 2017.) The problem herein then lies within the category in which they fit. According to article 1 of the Refugee Convention, the individual(s) fleeing must fall into one of the following 4 categories: a) race b) religion c) nationality or d) membership of a particular social group or political opinion. However, many of the fleeing children and women do not fall so easily into one of these definitions. The violence in the Northern Triangle states is indiscriminate and permeates all levels and sectors of society. The refugee definition found within the convention and protocol alone in this context does not adequately safeguard nor define those fleeing from gang violence or extortion.
Looking forward, the task of re-orienting the southern border program from a pull-factor perspective is daunting but not unattainable. First, the short-term values of high apprehension numbers and fewer migrant arrivals at the US-Mexico border should not be considered as a measurement of success. Rather, there should be a significant focus shifted to addressing push factors in the Northern Triangle States. Job creation, corruption reduction initiatives, welfare services, education programs should be focused on first. Indeed, it is in these areas where foreign funding should be concentrated, rather than on enforcement and policing. In 2016, the governments of the Northern Triangle States along with Canada and the US (Organisation of American States), in a high-level round table meeting, met to discuss and set more long-term objectives in response to the migrant crisis. While not a legally binding, hard law convention, the meeting was a step in the right direction. All states unilaterally accepted and acknowledged the gravity of the push factors and the need to address them. Among the various discussion topics, responsibility sharing was the core focus of the discussion. In the area of regional cooperation all states endeavored to: “Enhance regional responsibility-sharing mechanisms to address the situation, including through complementary legal pathways to admission, such as resettlement, humanitarian visas, family reunification, and other legal modalities for regular, safe and orderly migration;” (OAS, 2017) (p. 3.) While these talks were not legally binding, they set an important precedence and moved the focus away from preventive and enforcement laws. In particular, all states agreed that significant improvement in the areas of alternatives to detention, reception conditions for asylum seekers and provision of reasonable access to legal aid was paramount.
For the past 3 years the Northern Triangle migrant crisis has become more violent and desperate in nature. Asylum seekers continue to be disregarded and deportation has been consistently favored over resettlement. Fearing capture and refoulement, migrants have been forced to find alternative routes through treacherous and dangerous territory in Mexico, risking their lives greatly. At the request and finance of the US, there has been a significant emphasis placed on enforcement and militarization of the southern Mexican border, resulting in high apprehension numbers and deteriorating detention centers. While the short-term effects were deemed to be a successful measurement for US policy makers, the long-term migrant problem will only worsen if the push-factors in the Northern Triangle states are not properly addressed and given the funding they need. Many migrants find themselves in a legal limbo, where they are denied asylum based on lack of evidence in fearing for their lives. However, statistics and data show that the violence in the Northern Triangle states is worsening and gang violence is rampant. It is clear that the refugee definition laid out by the UNHCR in the 1951-1967 convention and protocol do not adequately include the migrants in this particular situation. Compounded by the criminality surrounding gangs and cartels, leaves the migrants little option but to simply run for their lives to the US. The 2017 San Jose Action Statement is one initiative which re-focuses the source of the problem in the sender states. It is there that the issues should be addressed and where funding should begin to be allocated to.
Castillo, Alejandra. (October, 2016.) The Mexican Government’s Frontera Sur Program: An Inconsistent Immigration Policy. Council on Hemispheric Affairs. Retrieved from http://www.coha.org/wp-content/uploads/2016/10/The-Mexican-Government%E2%80%99s-Frontera-Sur-Program-An-Inconsistent-Immigration-Policy.pdf
Donnelly, Robert. (December, 2014.) Transit Migration in Mexico: Domestic and International Policy Implications. James A. Baker III Institute for Public Policy: Rice University.
Human Rights Watch, Closed Doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children, 31 March 2016, available at: http://www.refworld.org/docid/56fce1b64.html [accessed 9 December 2017]
Isacson, A., Meyer, M., & Smith, H. (June, 2017.) MEXICO’S SOUTHERN BORDER: Security, Central American Migration, and U.S. Policy. WOLA (Washington Office on Latin America.) Retrieved from https://www.wola.org/analysis/wola-report-mexicos-southern-border-security-central-american-migration-u-s-policy/
Musalo, K., & Lee, E. (2017.) Seeking a Rational Approach to a Regional Refugee Crisis: Lessons from the Summer 2014 “Surge” of Central American Women and Children at the US-Mexico Border. Journal on Migration and Human Security 5, 137-179.
Shannon, Thomas A. (2014.) “Counselor of the Department of State, Ambassador Thomas A. Shannon Testimony to Senate Foreign Relations Committee.” http://www.foreign.senate.gov/imo/media /doc/Shannon_Testimony.pdf
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html [accessed 9 December 2017]
UN General Assembly, Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, available at: http://www.refworld.org/docid/479dee062.html [accessed 9 December 2017]
UN High Commissioner for Refugees (UNHCR.) (July, 2016.) San Jose Action Statement. Retrieved from http://www.refworld.org/docid/57a8a4854.html [accessed 9 December 2017]
UN High Commissioner for Refugees (UNHCR.) (February, 2017.) Northern Triangle of Central America Situation.
Wilson, Christopher & Valenzuela Pedro. (July, 2014.) Mexico’s Southern Border Strategy: Programa Frontera Sur. Wilson Center: Mexico Institute. Retrieved from https://www.wilsoncenter.org/publication/reflections-mexicos-southern-border
 According to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees Article 33 – “No contracting state (of which Mexico is party) 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, membership of a particular social group or political opinion.”
 See UNHCR Northern Triangle of Central America Situation Update (February 2017) P.7 for more detailed priorities and policy recommendations.