Oliverde Ros/AP Photo
Two U.S. asylum seekers, one from El Salvador and one from Honduras, wait inside a migrant house after being sent to Guatemala from the United States, in Guatemala City, December 3, 2019.
On Tuesday night, President Trump spent the better part of ten minutes making it seem as though undocumented immigrants commit far more crimes than anyone else. They don’t. Immigrants have lower crime rates than native-born Americans. But you wouldn’t know that from his State of the Union speech.
He also touted policies his administration has advanced to keep immigrants out, such as the “asylum cooperative agreements” with Guatemala, El Salvador, and Honduras. These were portrayed as “safe third country agreements” when first announced, but they bend international refugee law so completely as to bear no resemblance to such agreements.
On Thursday, more than 20 Democratic senators signed a letter to the administration arguing that these agreements are “inhumane and potentially illegal,” as the Prospect has already documented. Because these three countries have virtually nonexistent asylum systems, they run a high risk of failing to protect asylum seekers and “inadvertently or willfully” sending asylum seekers back to the countries they are fleeing, a process known as refoulement, the letter argues. This is a fundamental violation of refugee law.
According to experts I have interviewed, safe third country agreements, which the Trump administration’s policies mimic, are in themselves a loophole of refugee law, allowing countries to deport asylum seekers as long as they don’t deport them back to their country of origin. Typical agreements require asylum seekers to have transited through the countries to which they are being deported, but Trump’s ACAs do not have transit requirements—a fact the administration obscured when they were first announced. In November, the administration deported the first Honduran man to Guatemala under the ACA agreements. Since the administration began implementing the agreement, nearly 400 asylum seekers from Honduras and El Salvador have been sent to Guatemala. Most have been women and children. So far, no asylum seekers have been sent to El Salvador or Honduras.
It’s worth noting that some experts think that even typical safe third country agreements are really just loopholes in international law. “The [Refugee] Convention [of 1951] says that you can’t send people back to their country of origin,” explains University of Toronto professor Audrey Macklin. “It doesn’t say you can’t send them to a third country.” To Macklin, safe third country agreements are exploiting a loophole.
In their letter, the senators note that Guatemala, Honduras, and El Salvador are largely unable to provide protection for asylum seekers and that their governments have “weak or practically non-existent asylum capacities.” Indeed, there are no dedicated asylum offices in Guatemala, and the four officials assigned to the system did not resolve one case in the first seven months of 2019. Honduras and El Salvador do not have any full-time asylum officers.
On Wednesday, El Salvador even admitted it: Foreign Minister Alexandra Hill Tinoco said that El Salvador isn’t ready to offer the protections and safety asylum seekers need, and the country will refuse to accept asylum seekers until it can. As the senators put it, the notion that these countries can offer comparable asylum systems and protections “strains credulity.” At best, their systems are “deeply flawed and under-resourced, and at worst, practically non-existent.”
The glaring lack of capacity to provide for asylum seekers led the senators to question the agreements’ legality not only under international law, but also under domestic law, specifically under the Immigration and Nationality Act, which prohibits the return of asylum seekers to their country of persecution. The senators further note that the agreements may also constitute violations of the 1967 Protocol Relating to the Status of Refugees, to which the U.S. is party. The senator added that the agreements “may also violate U.S. obligations as a party to the 1984 Convention against Torture.”
Typical agreements require asylum seekers to have transited through the countries to which they are being deported, but Trump’s ACAs do not have transit requirements—a fact the administration obscured when they were first announced.
Primarily initiated by Senators Elizabeth Warren and Robert Menendez, the letter outlines concerns beyond migrants’ well-being. (Presidential candidates Bernie Sanders and Amy Klobuchar also signed, as well as former presidential candidates Kirsten Gillibrand, Kamala Harris, and Cory Booker.) Sending so many asylum seekers to these nations could overwhelm their asylum systems (if they have any) and further destabilize these countries, they argue. “These agreements could have serious and detrimental implications for U.S. national security,” the letter states. The agreements have several typos, indicating a hasty rollout, and they were signed only after the administration withheld aid to the region, indicating, the senators noted, that these countries “may have accepted the terms under duress.”
The letter comes on the heels of several other administration anti-immigrant announcements in recent weeks. The Trump administration extended its controversial travel ban to six more countries, including Myanmar, Eritrea, Sudan, Tanzania, and Kyrgyzstan, and to Africa’s largest economy and the world’s seventh-most-populous country, Nigeria. The extended travel ban will go into effect February 22.
And in a slap in the face to immigrant and anti-poverty activists, the Supreme Court announced in a 5-to-4 decision that it would allow the so-called “public charge” rule to take effect at the end of February. The administration asked the Supreme Court to overturn a lower-court injunction, a tactic it has repeatedly employed to gain relief from lower-court decisions it disliked. The rule allows the government to assess whether someone might use public benefits when they are applying for a green card, potentially reshaping legal immigration and making it more difficult for low-income immigrants to come to the U.S. or to stay in the U.S.
The Democrats’ letter concluded with a request for information and documentation about the agreements from the administration. The senators inquired about any assessments made with regard to these Central American countries’ asylum capabilities and the operating procedure for the agreements. The senators also wanted to know if Guatemala, in preparing to meet the requirements of a so-called safe third country agreement, had made any improvements to its asylum system. In short, the senators want to know if these agreements meet the bare legal minimums established under refugee law—and they want a paper trail to prove it.
It’s unlikely the Democrats’ letter will have much of an effect on its recipients: Secretary of State Michael Pompeo, Attorney General William Barr, and Acting Secretary of Homeland Security Chad Wolf. But the letter’s contents help make the case that these agreements rest on thin legal footing.
