Originally published by VOX
The Trump administration began to deport migrants seeking protection at the southern border back to Guatemala on Wednesday, the first migrants to be sent back under a series of agreements brokered earlier this year that make it all but impossible for Central Americans to seek asylum in the United States.
The agreements, which the US has signed with Guatemala, El Salvador, and Honduras, require migrants on their way to the US to apply for protections in those countries first.
If they fail to do so, US immigration authorities will send them back to those countries, collectively known as Central America’s Northern Triangle, where crime, violence, and lack of economic opportunity has driven hundreds of thousands to flee over the past year.
A new rule implementing the agreements was published this week. Only the agreement with Guatemala has gone into effect so far, as BuzzFeed first reported, and so far it has affected a relatively small number of single adult migrants, though the administration has not released an official count. But the agreements represent an unprecedented departure from the US’s tradition of protecting vulnerable populations, all in the service of President Donald Trump’s goal of driving down the number of migrants seeking refuge at the US southern border.
Experts warn that the agreements pose deadly consequences for migrants who are being sent back.
“We’re talking about forcing people to remain in these countries where the government is unable to protect them, locking them there and throwing away the key,” said Ursela Ojeda, a migrant rights and justice policy adviser at the Women’s Refugee Commission. “It is unprecedented in the sense that the idea that we would consider these countries safe is laughable. People will suffer and people will die.”
Most migrants seeking asylum in the US travel through Mexico on their way from the Northern Triangle. The deals resemble “safe third country agreements” — a rarely used diplomatic tool that requires migrants to seek asylum in the countries they pass through by deeming those countries capable of offering them protection — although the Trump administration has been reluctant to use that term, perhaps because the countries it’s dealing with cannot be considered safe.
Until recently, the US had this kind of agreement with just one country: Canada. The administration is continuing to pursue similar agreements with Mexico and Panama.
A separate Trump administration rule prevents migrants from being granted asylum if they passed through any country other than their own before arriving in the US, effectively meaning asylum seekers from any country but Mexico are ineligible for asylum. (Some migrants are still eligible for other protections that would allow them to stay in the US under that rule.)
Taken together, these policies achieve Trump’s objective of reducing overall legal immigration levels by putting asylum almost out of reach for migrants arriving at the southern border. They also mean returning migrants to countries that have high levels of crime and instability that are not used to dealing with an influx of people seeking refuge.
The US had just one safe third country agreement — until recently
Migrants can apply for asylum in the US if they face “credible fear” of persecution in their home countries on account of their race, religion, nationality, political opinions, or membership in a “particular social group,” such as the LGBTQ community. Asylees can obtain social services through refugee resettlement agencies and apply for a green card one year after they are granted asylum.
Safe third country agreements were created as a way for countries to share the responsibility of aiding asylum seekers, always with their welfare in mind. In 1991, the United Nations High Commissioner for Refugees invited such agreements where they would result in “clearer identification of those in need of protection” and “international cooperation in the provision of this protection and the realisation of lasting solutions.”
These agreements are usually signed by two countries. Migrants must apply for asylum in the first of those two countries that they pass through or else they could be sent back to the other country.
In the US, the Immigration and Nationality Act lays out two conditions for the agreements: they must be with countries where an immigrant’s “life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion” and where they would have “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”
Since safe third country agreements are not considered treaties, which must be ratified by Congress, the president can sign them unilaterally.
The US’s only existing safe third country agreement is with Canada. Drafted in cooperation with international human rights organizations and signed in 2002, the agreement acknowledges that the US and Canada both have robust processes under which asylum seekers can petition for protections and have strong traditions of welcoming asylum seekers.
But even that agreement has not been immune to critique. Canadian advocates filed a lawsuit in July 2017 challenging the agreement, arguing that Trump administration policies have made the US unsafe for asylum seekers. That ongoing suit claims that, in the US, asylum seekers are “unjustly detained” and are at risk of being forcibly returned to countries where they could be subject to persecution, torture, and death.
The European Union also reached a similar agreement with Turkey in March 2016 after migrants largely from the Middle East and Africa, including Syrians displaced by ongoing civil war, had arrived in record numbers — over 1 million in 2015, according to the International Organization for Migration. The agreement allowed Greece to deport migrants who had passed through Turkey unless they had already applied for asylum in Greece. (Few deportations, however, actually took place because migrants started applying for asylum as soon as they arrived in Greece.)
Trump, meanwhile, has sought to restrict asylum even more broadly, issuing a rule in July that strips asylum eligibility from anyone at the southern border who passed through another country en route to the US.There are limited exceptions to the rule, but, for the most part, it effectively closes the door on seeking asylum at the southern border.
Karen Musalo, founding director of the Center for Gender and Refugee Studies and one of the attorneys challenging the rule in federal court, said the rule has effectively allowed the Trump administration to unilaterally block Central American migrants from obtaining asylum.
But also signing safe third country agreements with each country individually gives the US another tool to deflect migrants. It could be the administration’s fallback option if a court strikes down its asylum rule in ongoing legal challenges. Alternatively, it could be used to send migrants to countries other than their own if their governments refuse to cooperate with the US in facilitating their deportation.
“Obviously, the purpose of this kind of an approach is to keep out asylum seekers,” Musalo said. “The safe third country agreement is one way to do it. But this regulation is very effective at doing that as long as it stands.”
Mexico and the Northern Triangle countries can’t offer migrants protection
Safe third country agreements were never meant to be a means of pushing the burden of absorbing asylum seekers onto other countries but that appears to be the way Trump is trying to use them. Even though the administration doesn’t refer to them as “safe third country agreements,” that’s essentially what they are.
More and more people are applying for asylum in recent years: about 208,000 over the past fiscal year as of October, compared to about 82,000 for all of fiscal year 2016. The number of migrants arrested while trying to cross the southern border is even higher, up to almost 978,000 over the past fiscal year through October from 553,000 in 2016. Most of them are families and unaccompanied children, whereas previously those arrested were primarily single adult men.
Trump has seen rising numbers of border arrests, generally considered a proxy for levels of unauthorized immigration, as a crisis worthy of declaring a national emergency in February. He has described safe third country agreements as one of many measures he is pursuing to drive down the numbers.
The agreements that the US is pursuing in Central America, however, are nothing like the one it has with Canada — not in intention and not in development, Ojeda said.
A rule published November 18 establishes a new screening process to determine whether the US or Guatemala will process migrants’ claims for protection. It applies both to immigrants who show up at US ports of entry on the southern border and those who try to enter the country without authorization between the ports.
The rule claims that asylum seekers will only be sent back to countries where they have “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” The administration has certified that Guatemala’s legal framework meets that standard, a former administration official told Vox, but has not evaluated whether Guatemala has the capacity to accept asylum seekers based on, for example, infrastructure or personnel needs.
Initially, the administration will only send relatively low numbers of single adults to Guatemala in order to test out the policy, they said. The United Nations refugee agency, meanwhile, will be working on the ground to bolster Guatemala’s capacity to receive more migrants.
Trump has described the agreements as a means of “sending a clear message to human smugglers and traffickers” and bringing to a close the “widespread abuse of the [asylum] system and the crippling crisis” on the southern border.
By Trump’s definition, however, ending the border crisis means reducing the number of migrants who are coming to the US. It doesn’t mean necessarily addressing the underlying problem: regional instability in Central America pushing people out of their homes.
When border arrests fell in August, Trump touted it as a victory for his immigration policies. Mexico, meanwhile, has been forced to accept more asylum seekers instead.
The Trump administration is sending migrants who line up at a port of entry or who are arrested when trying to cross the southern border back to Mexico to await decisions on their asylum claims. Under the policy, which is known as “Remain in Mexico,” the US has sent about 57,000 migrants back to Mexico, according to US Customs and Border Protection.
Morgan, CBP’s acting commissioner, has claimed that safe third country agreements with Central American countries are in the best interest of asylum seekers.
“If somebody is fleeing their country because they feel that they’re being persecuted for a list of legitimate reasons, it really is in their best interest to apply for asylum to the first country that they have entered outside of the country that they are being persecuted,” he said on September 9. “That’s our design. We believe it’s in their best interest as well.”
But the countries with which Trump has brokered or sought to broker safe third country agreements have a long history of instability and violence, and, in some cases, asylum seekers are in particular danger.
In Mexico and the Northern Triangle countries of El Salvador, Honduras, and Guatemala, migrants are commonly robbed, kidnapped for ransom, raped, tortured, and killed. The State Department, meanwhile, has issued travel warnings for US citizens in all four countries.
El Salvador has the highest homicide rate in the world, while Honduras ranks fifth, Guatemala 16th, and Mexico 19th, according to the United Nations Office on Drugs and Crime. They have rampant government corruption and high rates of violence against women and LGBTQ individuals.
Central America remains a hotspot of gang violence. MS-13 and M-18, which together have a presence of about 85,000 members in the area, are gangs that formed in Los Angeles and were transplanted to Central America after mass deportations of unauthorized immigrants with criminal histories in the 1990s. Gangs facilitate drug trafficking, extort local residents, and force teenage boys to join.
While advocates say the Northern Triangle countries lack anything resembling a legitimate asylum system, Mexico does have established procedures for processing asylum seekers. It does not, however, have the resources to process migrants in the numbers that are currently arriving, given that its refugee commission has only 48 staff members nationwide.
The state of El Salvador’s asylum agency is even more pitiful: The Salvadoran newspaper El Faro reported that it only has one asylum officer.
“None of them have anything that you could seriously call a ‘full and fair procedure’ for asylum seekers,” Musalo said.
Asylum grant rates in Mexico are relatively low. The Mexican Commission for Refugee Assistance, or COMAR, granted asylum to 264 of 3,533 applicants from El Salvador, 43 of the 791 from Guatemala and 279 of the 7,484 from Honduras in 2018. A concerning number of asylum seekers also abandon their claims, according to the United Nations High Commissioner for Refugees.
Mexico also lacks the capacity to offer humanitarian aid to masses of migrants. Asylum seekers waiting for decisions on their asylum applications in Mexico have recently faced overcrowded shelters, slim employment prospects, and difficulty finding lawyers, without which their asylum cases are almost surely doomed to fail.
Mexico and the Northern Triangle countries also produce high numbers of people seeking asylum themselves. In 2017, the most recent year for which asylum is available, the US granted asylum to 3,471 migrants from El Salvador, 2,954 from Guatemala, 2,048 from Honduras, and 1,048 from Mexico.
“It’s like saying, ‘Your house was just destroyed by an earthquake but there’s a house down the street that is on fire. Why don’t you seek refuge there?” Musalo said.
Central American countries are under pressure to sign safe third country agreements
In June, the administration threatened to impose tariffs on all Mexican goods if Mexico did not assist in curtailing the number of migrants showing up at the US southern border. But with border arrests on an apparent decline, Mexico seems to have fulfilled Trump’s wishes and may not feel obligated to take the extra step of signing a safe third country agreement. Despite initially being open to discussions of such an agreement, the Mexican foreign minister Marcelo Ebrard dismissed the prospect outright on September 10.
Trump announced in July that the US had reached a safe third country agreement with Guatemala, though it has yet to be ratified by the Guatemalan government. As part of the agreement, the US offered to expand and streamline the H-2A temporary agricultural visa program for Guatemalan citizens, promising to spur what Trump described as a “new era of investment and growth.”
The Guatemala Constitutional Court initially stopped the agreement from going into effect. After the ruling, Trump suggested he would retaliate by blocking all Guatemalan immigrants and introducing a new tax on their remittances. The agreement has since been implemented.
The agreement with El Salvador, which is similar to the one with Guatemala, says that the US “intends to cooperate with El Salvador in order to strengthen El Salvador’s institutional capacities.” As part of that, the US will invest in El Salvador and work on a way for about 200,000 Salvadorans who have lived in the US for about two decades with temporary legal immigration status to remain in the country permanently, McAleenan and Chancellor of the El Salvador Ministry of Foreign Affairs Alexandra Hill told reporters.
While the terms of the deal with Honduras has not been made public, the US government may have some leverage over its government, as Honduran President Juan Orlando Hernández faces prosecution in the US for allegedly accepting campaign contributions from drug traffickers.
It’s not clear what advantages other countries might derive from signing a safe third country agreement. Ojeda says that they may just be afraid of going against the wishes of a major economic power that has given them substantial, much-needed aid.
“What we have here is the United States being a bully,” she said.
Safe third country agreements with Central American countries raise legal concerns
Establishing safe third country agreements with Central American countries could run afoul of the US government’s legal obligations to asylum seekers in both federal law and international human rights standards.
If the US sends migrants back to countries where they are endangered, it may be falling short of its duties as a party to the 1951 Refugee Convention. That United Nations treaty says countries cannot “expel or return 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.”
But other nations are limited in their ability to hold the US accountable for brokering safe third country agreements that put asylum seekers at risk and propagating a rule that achieves the same effect.
International organizations might determine that the US is violating international human rights standards. But their findings are not legally enforceable in the same way that a US court decision might be — it would only matter to presidents who care about upholding international human rights standards.
“I think it would be fair to say that this administration has contempt for international human rights standards,” Musalo said.
Immigrant advocates are nevertheless asking international bodies to weigh in, recently requesting a hearing before the Organization of American States’ Inter-American Commission on Human Rights. Even if a country can’t be forced to comply with the commission’s findings, there is value in having an international body state for the record that the US is in violation of global standards.
The United Nations could also intervene, either through a statement by its refugee office or a resolution, but that is less likely because diplomatic bodies are reluctant to be critical of large powers like the US.
The US court system will therefore be the ultimate arbiter of whether the Trump administration’s attempts to broker safe third country agreements are lawful.
In the lawsuit challenging Trump’s asylum rule, the Department of Homeland Security has invoked its authority under the Immigration and Nationality Act to impose “additional limitations and conditions, consistent with [the asylum statute], under which an alien shall be ineligible for asylum.” It claims that barring asylum seekers who don’t “request protection at the first opportunity” is a legitimate use of that authority.
But immigrant advocates have countered that the rule violates longstanding principles in the Refugee Act of 1980, in which the US codified its international human rights obligations as a party to the Refugee Convention.
The Refugee Act says that any noncitizen in the US can apply for asylum “whether or not at a designated port of arrival” and “irrespective of [their immigration] status.” The only exceptions are for those who were “firmly resettled” in another country before they arrived in the US or if they passed through another country with which the US had a “Safe Third Country” agreement.
Opponents also argue that the Trump administration skirted rulemaking requirements by issuing the rule without giving the public notice and the opportunity to submit comments on it.
The Refugee Act would also likely be raised in any challenges to future safe third country agreements with Mexico or other countries.
“It’s a flagrant and shameful attempt to refuse to take on our obligations by putting barriers that make it impossible for people to apply here,” Musalo said.