Editor’s Note: We recommend reading this in conjunction with Safe Third Country Agreements with Mexico and Guatemala would be Unlawful by Susan Gzesh
On Monday, the Trump administration published a new asylum regulation in an attempted end run around the statutory requirements of an actual “Safe Third Country” agreement. As I wrote at Just Security here, the United States may seek to enter into such agreements with Mexico and Guatemala, designed to prevent Central American asylum-seekers from reaching the United States. With this new regulation, the administration is side-stepping diplomacy in favor of unilateral rule-making.
The new interim final rule, which will go into effect immediately with public comments only after the fact, mandates that immigration judges, as a “matter of discretion,” deny political asylum to any applicant who passed through a “third country” and did not apply for asylum there prior to arriving at the U.S. southern border. The regulation will surely face court challenges.
Interestingly, the administration acknowledges the existence of alternate potential claims by asylum seekers for “withholding of removal” or “deferral of removal” under the Convention Against Torture and states that the new regulation would not apply to bar those applications. The Convention Against Torture (ratified by the U.S.) is incorporated into U.S. immigration law and prohibits return to a country where one may be subject to torture. (See 8 CFR Sec. 1208.16, 1208.17, and 1208.18) Thus, asylum seekers who can demonstrate a likelihood of torture on their return may still apply to remain in the U.S., but without the security of a “path to citizenship” that comes with political asylum and without the possibility of including their dependent family members in their applications.
It’s too early to know whether the proposed regulation will ultimately go into effect or whether the Trump administration may still revert to its approach of pursuing “Safe Third Country” agreements. This follow-on article explains how these agreements work in practice, using the example of the only current U.S. Safe Third Country agreement with Canada, and explores how other countries deter asylum seekers, focusing on Europe.
What is the U.S.- Canada Safe Third Country Agreement?
The United States has one current Safe Third Country agreement, with Canada. Formally titled “Agreement Between the Government of the United States and the Government of Canada for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries,” the document was signed on December 5, 2002.
The U.S.-Canada agreement in its opening paragraphs cites the binding nature of the United Nations Convention Relating to the Status of Refugees (1951) and its 1967 Protocol as well as the Convention Against Torture, both of which prohibit the return of persons who may be persecuted or tortured in their home countries.
The United States and Canada also acknowledge that “the United States and Canada offer generous systems of refugee protection.” Canadian advocates have mounted a challenge in Canadian courts (still in the discovery phase) as to whether the Trump administration’s policies towards refugees and asylum seekers have rendered the United States no longer “safe” within the meaning of the agreement. However, in general both countries do have well-developed administrative systems for the consideration of claims for refugee status. And in both countries, the adequacy of due process in those systems is subject to judicial review.
The U.S.-Canada agreement requires each country to return an asylum seeker to the other country for her/his claim to be adjudicated if the person was “physically present [in the other country] immediately prior to making a refugee status claim.” Interestingly, the agreement only applies to claims made at a land border port of entry (Art. 4.1). In other words, claims made by persons who entered the other country by avoiding formal ports of entry are not subject to the Safe Third Country agreement. Canadian refugee advocates have noted that this important exemption forces asylum claimants who do not wish to apply for asylum in the U.S. to enter Canada clandestinely.
The U.S.-Canada agreement exempts persons who arrive at their land border with a valid visa. (Art. 4.2(d)(i). The agreement also embodies (at Art. 4.2 (a), (b), & (c)) important principles of child protection and family unity by its exceptions to its “return policy” for:
- unaccompanied minors;
- other persons who have at least one family member already granted refugee status or other legal immigration status (other than as a visitor); or
- any person who has a family member who is over 18 and has a claim for refugee status pending in the desired country of settlement.
Whether the proposed Mexico or Guatemala Safe Third Country agreements would track the Canadian agreement, with its limited application at border crossing points only and its broad exceptions, remains to be seen.
How does Europe Deter Asylum Seekers?
Europe has openly blockaded asylum seekers who attempt to reach Europe by crossing the Mediterranean. Hundreds have died in the last decade. Now, Italy and other Mediterranean countries are closing their ports even to humanitarian rescue missions. As I noted here:
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.
Free movement across international borders within the European Union (EU) has been the law under the Schengen Treaty since 1985. However, the relatively recent increase in asylum seekers from Africa and the Middle East has caused the EU to modify that openness under pressures from some members. Inspections of travelers’ documents at certain borders has been re-instituted during some periods of perceived crises. Since 2013, the European countries have subscribed to the Dublin III Regulation, an EU rule that requires that an asylum applicant apply in the first EU country she or he reaches.
The assumption underlying the Dublin Regulation is that all the EU member states have relatively equivalent adjudication systems for refugee claims. Even this presumed equivalence was tested and found wanting by the European Court for Human Rights in a case brought challenging the prior version of the Dublin Regulation. In its 2011 decision, the Court found that the transfer of an Afghan asylum seeker from Belgium (where he had applied for asylum) to Greece, his country of first entry into the EU, violated his rights under the European Convention due to deficiencies in the asylum adjudication system and the living conditions for asylum applicants in Greece.
The pressure that this rule has placed on the EU periphery countries of Greece, Italy, and Spain has been just one aspect of discussions and arguments within Europe on the appropriate allocation of “burden sharing” of asylum seekers among member States. The EU reached an agreement with Turkey in 2016 to keep asylum seekers from the Middle East (mostly Syria) from reaching the EU (i.e., Greece) for a payment of some 6 billion Euros. The agreement has been criticized by asylum advocates in Europe while apparently succeeding in limiting the movement of Syrian asylum seekers. Last year, Human Rights Watch documented dozens of deportations of Syrians from Turkey back to their war-torn homeland.
International Law on protection of asylum seekers was developed at a time when nations realized they had failed the victims of the Nazis and other tyrannies by turning away those seeking refuge. We do not yet know whether our time will be marked by legal maneuvers to block those fleeing violence and persecution or whether we will stand by our international and domestic legal obligations and humanitarian principles.
IMAGE: Photo by Ariana Drehsler/ Getty Images. A general view of the US border fence, covered in concertina wire, separating the US and Mexico, at the outskirts of Nogales, Arizona, on February 9, 2019.