Less than two weeks after Guatemalan President Jimmy Morales abruptly cancelled a White House visit, President Donald Trump bullied his way to securing what the Trump administration is calling a “Safe Third Country” agreement with Guatemala. It is unclear, however, what the agreement signed on July 26 actually contains – and whether, if ever, it will take effect.
On July 14, Morales had announced the postponement of his trip to Washington after the Guatemalan Constitutional Court ruled that he needed legislative approval for any “Safe Third Country” agreement. Upset at the slight, Trump took an aggressive tone, threatening a ban on Guatemalans coming to the U.S. even with lawful visas and a tax on remittances sent home by Guatemalans. These blows would have crippled the Guatemalan economy, which is heavily dependent on earnings by Guatemalans living in the U.S. and also relies on the export of manufactured goods and agricultural products to the U.S. And so, Guatemala’s business class sounded the alarm. Morales, whose term will expire in January, with his successor scheduled to be elected on August 11, decided to ignore the court order and sent his interior minister to Washington.
On July 26, in a previously unannounced Oval Office ceremony overseen by Trump, acting Secretary of the Department of Homeland Security (DHS) Kevin McAleenan and Guatemalan Interior Minister Enrique Degenhart Asturias signed an agreement to cooperate with respect to the adjudication of petitions by asylum seekers. It is likely that Guatemala secured some guarantees from the U.S., but little about the actual impact of the agreement on Guatemala is clear. The U.S. government never released the text of the agreement, an unusual move for an international agreement like this. A few details emerged from the signing. For example, Trump announced an expansion and streamlining of H2A visas for Guatemala, which had been agreed to between the two countries just a few days previously.
What exactly did the U.S. and Guatemalan officials sign? Will it ever take effect – or is this just one more show of bluster and bullying resulting in a “victory” to satisfy Trump’s political base on the way to the 2020 U.S. presidential election? The Guatemalan newspaper, La Prensa, published a Spanish-language copy of the agreement online, but the Guatemalan government has not issued an official copy of the agreement either. A U.S. academic obtained a copy of the English language version and posted it to a list-serve – but neither the White House nor DHS has released a copy on their websites as of the morning of July 30. The “unofficial” English language text I saw does agree with the Spanish language text released by the Guatemalan newspaper Prensa Libre.
What was agreed to by the U.S. and Guatemala?
The document itself is not a “safe third country” agreement, despite White House (and the New York Times) characterization of it as such. Many provisions of the U.S.-Canada agreement, previously analyzed in this space, are absent here.
The document speaks of “transfers” from one country to the other of persons who have petitioned for protection – and that upon transfer, the receiving country will adjudicate the request for protection. The document does NOT say (as does the U.S.-Canada Safe Third Country agreement) that the transferred (a euphemism for “deported”) person must have previously been present in the country to which she or he is being transferred. On its face, the document seems more like the arrangements made by Australia to transfer asylum seekers to the impoverished island nation of Nauru, than it does sound anything like the relatively equal relationship between Safe Third Country partners, like the U.S. and Canada. The history of U.S.-Guatemala relations has never included negotiations between parties with any semblance of equal power, given direct and indirect U.S. interventions in Guatemalan internal politics since the mid-20th Century.
The document that is available appears vague and incomplete. After prefatory clauses declaring the adherence of both countries to international law regarding refugees and asylum and non-refoulment of likely torture victims, the agreement defines its terms and then describes the parties’ responsibilities.
The agreement does not require that – to be transferred from the U.S. to Guatemala – an “applicant for protection” must have previously been present in Guatemala, unlike the U.S.-Canada agreement, which is restricted to persons who have passed through the other country.
It also appears to allow the U.S. to transfer to Guatemala a person “of any nationality” who has made a “request for protection” in U.S. territory and arrived in the United States, “at a port of entry or between ports of entry.” The agreement exempts from the possibility of transfer a person who entered the U.S. “with a validly-issued visa or other valid admission document,” and also exempts unaccompanied minors.
While Guatemala has stated that the agreement will be applied only to Hondurans and Salvadorans, there is no such language in the document we reviewed – with the exception of saying it does not apply to Guatemalans in the U.S. A tweet posted by the government of Guatemala on the day of the signing does declare that the agreement will be applied to Salvadorans and Hondurans, but is a tweet an official statement of policy? One might conclude that this means that the intent is to allow the U.S. to “transfer” to Guatemala ANY “protection applicant” who has applied for protection in the U.S. For example, a Congolese asylum seeker who applies for asylum at a U.S. port of entry on the Mexican border, having entered Mexico on an international flight, might be sent to Guatemala for consideration of his application, despite his never having been there. We will not know if such a broad application is contemplated until DHS responds to inquiries from the press and members of Congress, but the agreement does not support – nor would it exclude – Guatemala’s interpretation of its limited scope.
Many experts have noted previously that Guatemala has almost no capacity to adjudicate applications for protection, nor is it safe territory for protection applicants to stay, the two basic requirements for a “Safe Third Country” agreement under U.S. law. This new agreement is certain to be challenged in U.S. courts. The Guatemalan courts have already declared that the agreement would not be valid under Guatemalan law without legislative approval. In addition to contemplating no limitation on the nationalities the U.S. might “transfer” to Guatemala under this agreement, it is also true that Guatemala has little, if any capacity, to deport persons who might be rejected from protection.
Whether this agreement embodies an intent to make Guatemala an American Nauru – a terrible jail for thousands who would seek asylum in the U.S. — is still unknown. Until the U.S. and Guatemala release official texts of the agreement and any side agreements, there are many more questions than answers. Members of the public in both countries, legislators, advocates for asylum applicants, and migrants seeking protection all deserve to know what the U.S. and Guatemala have planned.