The government of Australia recently entered into an agreement with Malaysia whereby the next 800 asylum seekers who arrive illegally by boat in Australia will be sent to Malaysia where their asylum cases will be processed. The deal still needs to have some kinks ironed out, but it seems that if an asylum case is approved, the asylee would join the (long) queue of registered refugees waiting for resettlement to Australia or elsewhere. While the asylum seekers’ cases are pending, they will have permission to work or study in Malaysia, and they will have access to healthcare (at least theoretically: the Malaysian government does not have a great reputation for its treatment of refugees). In exchange for taking the asylum seekers, Australia will accept 4,000 refugees–i.e., people who have already been determined to qualify for refugee status–from Malaysia, and Australia will pay for the plan. The hope is that by sending asylum seekers to Malaysia and putting them at the back of the resettlement line, the new plan will eliminate the incentive for people to come illegally to Australia.
Malaysian Tourism Minister laments the new plan: "Not even refugees want to come here!"
The United Nations Commissioner for Human Rights has questioned the legality of this arrangement. But Australia is pressing ahead with the plan, and has already identified the first boatload of asylum seekers who will be sent to Malaysia. The Australian Prime Minister sees this plan as a way to reduce the lucrative alien smuggling business and protect refugees:
“I made it very clear that what I wanted to do was to break the back of the people smuggling model, to take away from them the very product that they sell, to stop people risking their lives at sea and to stop people profiting from human misery,” Australian Prime Minister Julia Gillard said at a news conference. “I wanted to see us do something to end the profitability of people smuggling.”
My question is, could the U.S. adopt such a model to discourage asylum seekers who enter the U.S. at our Southern border? Such people often make a long and dangerous journey from their country to ours. They pass through many countries before entering the United States illegally and applying for asylum. Thus, it seems these asylum seekers are subject to a “push” (a reason to leave their home countries) and a “pull” (a reason to come to the U.S. rather than another country). What if we eliminated the “pull” by sending such people to a third country to process their cases? Some thoughts:
For a start, we would need a country willing to accept our asylum seekers. The most obvious choice is Mexico. Mexico is trying to comply with international refugee law, and most asylum seekers entering the U.S. illegally have to pass through Mexico to get here. The asylum seekers from China and Africa who pay thousands of dollars to smugglers, are paying to come to the U.S., not to Mexico. And–no offense to Mexico–I don’t think asylum seekers would pay these exorbitant sums if their journeys ended in Mexico. So if we sent our asylum seekers to Mexico, it would reduce the “pull” factor and might discourage large numbers of people from trying to come here illegally (and risking their lives in the process).
On the hand, there are good reasons why we should not adopt Australia’s model. A letter from Human Rights Watch to the Prime Minister of Australia makes some convincing arguments against “outsourcing” asylum seekers. First, there are real questions about whether the receiving country will treat asylum seekers in accordance with Australia’s (or our) human rights obligations. Second, forcibly transferring asylum seekers may violate treaty commitments. The HRW letter continues:
We are also concerned that this deal is premised on the dangerous notion that obligations of states party to the Refugee Convention can be transferred to states with no such convention obligations. Finally, we also fear that this deal tries to subvert the principles underlying refugee resettlement by transforming resettlement from a tool of international protection into a mechanism of migration-control.
To these reasons, I would add that transferring asylum seekers sets a bad precedent for how other countries will treat asylum seekers. The United States sets the standard for many areas of international law and policy. If we shirk our commitment to asylum seekers, other countries will follow suit. Finally, we often forget how much asylum seekers contribute to our country. Check out this list of famous refugees for some well-known examples of refugees who have contributed greatly to their host countries.
We will see how the Australian experiment proceeds. It will be relatively easy to determine whether the plan reduces the number of illegal migrants, but it will be difficult to measure how the plan impacts human rights. We need to look at both sides of the equation before we consider such an approach for our country.
Originally posted on the Asylumist: www.Asylumist.com.
Jason Dzubow's practice focuses on immigration law, asylum, and appellate litigation. Mr. Dzubow is admitted to practice law in the federal and state courts of Washington, DC and Maryland, the United States Courts of Appeals for the Third, Fourth, Eleventh, and DC Circuits, all Immigration Courts in the United States, and the Board of Immigration Appeals. He is a member of the American Immigration Lawyers Association (AILA) and the Capital Area Immigrant Rights (CAIR) Coalition. In June 2009, CAIR Coalition honored Mr. Dzubow for his Outstanding Commitment to Defending the Rights and Dignity of Detained Immigrants.