News reports that the United States seeks to sign “Safe Third Country” agreements with Mexico and Guatemala – possibly as soon as today – mark the latest phase in the Trump Administration’s efforts to keep Central American asylum seekers from reaching the country. Such agreements would bar asylum applications in the United States from thousands fleeing El Salvador and Honduras, as well as claimants from other world regions who transit Central America and Mexico to reach our border. And they would be contrary to both U.S. and international law on the protection of asylum seekers.
This initiative is part of a long retrenchment on commitments to refugee protection by countries that pressure neighboring states to become “buffer zones” against unwanted flows of asylum seekers. The international refugee protection regime began in earnest in the post-World War 2 period with the 1951 Convention on the Treatment of Refugees. At that time, the States Parties were shamed by their failure to help those fleeing the Holocaust and motivated by a Cold War-fueled impulse to offer shelter to those fleeing the new Communist governments in Eastern Europe. Despite their mixed motives, when the States Parties spoke of international cooperation, they meant cooperation to assist refugees to reach safety and security. Contemporary initiatives by the U.S., Australia, and European governments seek cooperation to block flows of asylum seekers, rather than to help them present their claims for protection.
“Safe Third Country” agreements are part of the arsenal nation-states use to prevent the arrival of asylum seekers into their territories, where national legal obligations and rights would adhere. That arsenal also includes high seas interdiction, offshore detention facilities, fortification of borders forcing migrants into dangerous terrain, payment of neighboring states to detain refugee flows, and the Trump Administration’s “Remain in Mexico” policy.
Whether international human rights law can effectively stop these measures to block asylum seekers is constantly tested. In 2012, the European Court of Human Rights penalized Italy (in Hirsi Jamaa and Others v. Italy [GC]) for intercepting asylum seekers in international waters in the Mediterranean and returning them to Libya where they faced torture, among other abuses. As the New York Times reported, Italy paid the damages mandated by the Court, and then switched its tactics from using its own navy to intercept the migrants to financing reinforcement of the Libyan Coast Guard to accomplish the same ends.
The Trump Administration Pressures its Neighbors
The push for Safe Third Country agreements with Mexico and Guatemala is part of the well-publicized U.S. policy to limit access to protection in the U.S. for adults and children fleeing Central America. For Mexico, the clock is running after Mexico agreed to sign a “Safe Third Country” agreement if they could not significantly reduce the number of Central Americans arriving at the U.S. border, with assessments in two intervals of 45 days, the first deadline on July 25, 2019.
For many decades, the United States has seen Mexico as an extension of its own border controls against non-Mexican migrants. In 1904, the U.S. government established the first patrols of the Mexican border to block Chinese nationals smuggled across, seeking to avoid U.S. “Chinese exclusion” laws applied at ports of entry. In the 1980s, the U.S. pressured Mexico to deter Salvadorans and Guatemalans fleeing U.S.-supported military regimes. Through the 1990s and early 2000s, the U.S. pushed Mexico to divert Central Americans and “extra-regional migrants” from the Middle East and Africa who entered Mexico bound for the United States.
Trump administration initiatives aim at discouraging Central American asylum seekers by changing legal standards for asylum, blocking access to U.S. asylum procedures, and discouraging emigration from the region. In June 2018, then-Attorney General Jeff Sessions issued an Opinion to reverse precedent in which the Board of Immigration Appeals and federal courts had recognized victims of domestic violence or threats or violence from criminal gangs (non-state actors) as eligible for political asylum, a move aimed at Central American asylum seekers.
The Administration’s cruelest measure to discourage Central American families from coming to the United States has been the child separation policy. Immigration agents would forcibly take crying infants and children from their parents when the families were apprehended or voluntarily surrendered. There was immediate outrage and protest from the U.S. public, in the media, and from members of Congress and U.N. officials. A court order (under appeal) stopped this appalling practice but its impact is not over; the government admits it cannot locate hundreds of children still missing.
More recently, the “Remain in Mexico” policy (formally, “Migrant Protection Protocols”) has forced thousands of Central Americans who apply for asylum at U.S. border stations, to wait for months in Mexico in dangerous and unhealthy conditions. Moving asylum seekers away from the jurisdiction of U.S. courts and the view of the U.S. media and public will only make human rights violations less visible.
U.S. Law Governing Safe Third Country Agreements
A Safe Third Country must provide safety, security, and due process for asylum seekers. The legitimacy of potential Safe Third Country Agreements between the U.S. and Mexico and Guatemala does not depend only on international human rights law, but on U.S. statutory standards. Complaints before the Inter-American Commission on Human Rights, pleas to the United Nations High Commissioner for Refugees, and other actions before international bodies can shine an important international light on the abuse of asylum seekers. But with an Administration apparently immune to international “naming and shaming,” advocates may be on firmer ground using the U.S. courts to test the legality of a Safe Third Country designation.
Congress created a system for receiving and deciding asylum claims following the 1967 ratification of the Protocol to the Refugee Convention. In 1980, Congress enacted the Refugee Act which establishes broad eligibility for foreigners (“aliens”) to apply for asylum:
“any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum…” (8 USC 1158 (a)(1))
However, the law also contains important exceptions for persons who might be fleeing persecution but who may not apply for asylum at all. One such category is comprised of those who may be removed to a “Safe Third Country” (8 USC 1158(a)(2)(A)):
Paragraph (1) [who may apply for asylum, quoted above] shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country… in which the alien’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 the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection…”
So, what is a “Safe Third Country”? According to the statute, the elements of an adequate Safe Third Country are that:
- A bilateral or multilateral agreement must exist. (Note: the statute does not require the formality of a treaty. An “agreement” is sufficient.)
- The alien’s life or freedom would not be threatened there, due to one of the listed categories. (Note: the statute tracks the language of a form of protection called “withholding of removal” (8 USC 1231(b)(3)(A)) which has a higher standard of objective proof (“life or freedom would be threatened”) than the more subjective standard for political asylum (“well-founded fear of persecution.” (8 USC 1101(a)(42)(A))
- The alien would have “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”
The Attorney General’s determination of the validity of the designation of a country as “safe” ought to be subject to review in the federal courts. However, limitation on judicial review provisions added to immigration law during the Clinton Administration effectively bar individual asylum applicants from litigating the issue, stating “No court shall have jurisdiction to review any determination by the Attorney General” under the safe third country exception.
However, the “jurisdiction-stripping” statute should not block federal court challenges to the initial designation of Mexico or Guatemala as a “safe third country.” Lawyers can begin to strategize about the statutory, constitutional, and Administrative Procedures Act arguments in anticipation of a possible agreement with Mexico or Guatemala. Congress, too, can conduct oversight of the Trump administration’s attempts to use Safe Third Country agreements to block asylum seekers.
Neither Mexico or Guatemala can Qualify as a Safe Third Country
The State Department has stated that Central American migrants are in actual danger in both Mexico and Guatemala, where they are victims to threats, extortion, and violence by both government officials and criminal gangs. Such threats are aimed at them because of their nationality and arguably because of their “membership in a particular social group.” They are regarded as vulnerable prey, by both corrupt government officials and criminals who operate with impunity and, in some cases, with the cooperation of government officials.
In late June, the Chairmen of three committees of the U.S. House of Representatives sent a letter to Secretary of State Mike Pompeo and Acting DHS Secretary Kevin McAleenan to oppose the negotiation of Safe Third Country agreements with Mexico and Guatemala. Representatives Eliot L. Engel (D-NY), Chairman of the House Committee on Foreign Affairs, Jerrold Nadler (D-NY), Chairman of the House Committee on the Judiciary, and Bennie Thompson (D-MS), Chairman of the House Committee on Homeland Security, cited the State Department’s own 2018 Human Rights Reports evidence that such agreements would be contrary to U.S. law since neither country has adequate asylum and protection processes in place.
Mexico cannot qualify as a Safe Third Country. Mexico cannot protect asylum seekers from persecution in its territory by government agents and criminal gangs. August 22, 2019 will mark the 9th anniversary of the discovery of 72 bodies of Central American migrants killed by a criminal gang in northern Mexico. The discovery of the mass slaughter caused a national outcry, as an extreme example of the every-day extortion by criminal gangs and officials of various law enforcement agencies. Despite public indignation, Mexican academics working with the network of migrant shelters across the country reported in 2018 that migrants still suffer high levels of robbery, extortion, kidnappings, and rape. Asylum seekers find their lives and freedom threatened in Mexico.
Nor is Mexico capable of providing a “full and fair” procedure for the adjudication of claims from asylum seekers. While Mexico has had an agency to receive and process asylum applications for several decades, the Comision para Ayuda a Refugiados (Commission for Aid to Migrants – COMAR) is under-resourced and inaccessible to the majority of asylum seekers, according to Mexican migrant rights organizations.
President Andres Manuel Lopez-Obrador took office in December 2018 promising to protect the human rights of Central American migrants. Lopez-Obrador’s government at first issued “humanitarian visas”to thousands of Central American migrants, even sending government officials to meet migrant caravans to process the visas at shelters. While Mexico still provides visas, migrants now must apply for them at migration offices. And Mexico’s priorities have changed from welcoming to the militarization of enforcement. Lopez-Obrador apparently wants to avoid a trade conflict with the U.S. at all costs, as he seeks to strengthen Mexico’s economy and is willing to comply with U.S. demands regarding migration.
As reported by the U.S.-based coalition Alianza Americas, Mexican civil society organizations are particularly critical of Lopez-Obrador’s deployment of thousands of National Guard troops to work with the Instituto Nacional de Migracion (National Migration Institute – INM) in enforcement against Central Americans. In December 2018, Lopez-Obrador appointed an academic, Tonatiuh Guillen, to reform the notoriously corrupt Instituto Nacional de Migracion; Guillen resigned in May 2019 because of the government’s reversal of its initial welcoming policy towards Central Americans. According to the Pew Research Center, Mexico has deported 64,000 migrants from Honduras, Guatemala, and El Salvador in the first seven months of FY 2019.
Guatemala cannot qualify as a Safe Third Country. Guatemala would not provide protection from persecution for asylum seekers, nor can it provide a “full and fair” procedure for determining asylum claims. As reported by Human Rights First, Guatemala is not capable of protecting its own citizens from persecution and could not do so for asylum seekers. According to the United Nations High Commissioner for Refugees (UNHCR), over 30,000 Guatemalans filed claims for asylum in the United States, due to persecution on account of their status as indigenous people, women threatened with domestic violence, and young people subject to gang recruitment.
The U.S.-based NGO Refugees International recently sent a letter to the Office of Legal Advisor of the State Department requesting that the Department stop negotiating a “Safe Third Country” agreement with Guatemala. The letter cited the Guatemalan government’s “absence of capacity of the government of Guatemala to provide even a modicum of services or security for returned asylum seekers who would likely be in highly vulnerable situations for extended periods.”
Guatemala also lacks an adequate system for adjudicating asylum applications. Its agency, the Instituto Guatemalteco de Migracion (IGM – Guatemalan Migration Institute), lacks capacity to process applications from the large number it would receive as a “Safe Third Country.” UNHCR reports that in 2018 its office in Guatemala provided information to approximately 24,000 persons in transit, principally Hondurans, a number which would completely swamp the IGM were Guatemala be compelled to adjudicate claims. The UNHCR reports that there are fewer than 400 refugees officially recognized in Guatemala, with under 300 who requested asylum in 2018. A vocational training program for refugees, established by UNHCR and the Guatemalan government, provided services to 8 refugees in 2018.
The Trump Administration’s pursuit of Safe Third Country agreements with Mexico and Guatemala is contrary to both U.S. and international law regarding the protection of asylum seekers. Members of Congress, advocacy organizations in Mexico, Guatemala, and the U.S. – as well as the asylum seekers themselves – know that neither country can provide the protection or due process to migrants required under law. Whether the rule of law or cruel disregard for human life will prevail in this situation is as yet unsettled.