Trump Seeking to Effectively Outsource Asylum Seekers to Guatemala

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Moises Castillo/AP Photo

Migrants stand above the Suchiate River, on the border bridge between Mexico and Guatemala.

The Trump administration is on the verge of signing a “safe third country” agreement with Guatemala, sources have confirmed to the Prospect. Asylum seekers attempting to enter the United States would be forced to file in Guatemala instead, on the grounds that it would be the first “safe” country they arrived in. Because most asylum seekers are coming from the south, this would allow the U.S. to send thousands of asylum seekers at the southern border back to Guatemala, and render them ineligible to apply for refugee status in the U.S.

Guatemalan President Jimmy Morales is scheduled to be in Washington on Monday, and an announcement of the agreement could be made then. Spokespeople for Morales have denied that the agreement is the purpose of the visit, but said that there is hope that there can be a signing ceremony.

Immigrant rights and refugee activists, as well as lawmakers, have expressed alarm that Guatemala, itself a country wracked with bouts of violence and its own population of asylum seekers, would be considered a “safe” country for migrants in search of refuge. Civil and human rights groups have suggested they would sue to block the agreement, saying it would violate international law. Three former foreign ministers have asked Guatemala's Constitutional Court to prevent Morales from signing an agreement, arguing that it would be illegal under Guatemalan law.

“The whole idea [is] that we can take people from Honduras and El Salvador and fly them to Guatemala, where they're absolutely in worse shape, they don't have friends or family or funds, so they're much more vulnerable, so they're going from desperation to desperation,” said Senator Jeff Merkley (D-OR), who has been a leader on border issues in the Senate.

The administration's desire to sign a safe third country agreement with Guatemala has been known for some time. On June 17, Trump tweeted that Guatemala “is getting ready to sign a Safe-Third [sic] Country Agreement.” Guatemala’s interior minister, Enrique Degenhart, denied that the two countries had reached a deal, though negotiations are ongoing. Then, again this month, Trump said that Guatemala would be signing a safe third country agreement.

It's just not credible to call Guatemala “safe,” says Todd Schulte, president of FWD.us, an immigration and criminal justice advocacy organization.

“This requires suspending objective truth,” Schulte says. “I think people are pretty unprepared for the U.S. declaring one of the most dangerous countries in the world … that's driving the refugee crisis, if we just say it's totally safe and lie about it for our benefit, that would be unbelievably tragic.”

Guatemala's asylum system is relatively new. So far this year, Guatemala has received just 172 asylum requests and just 1,300 since 2002. With thousands fleeing the Northern Triangle countries of Guatemala, El Salvador, and Honduras every year, it seems implausible that Guatemala could develop a system to handle large numbers of asylum seekers.

Eric Schwartz, president of Refugees International, explained that the agreement is a violation of U.S. law in two respects: First because the law requires that the U.S. sign this agreement only with countries that have full and functioning asylum systems, and second that the U.S. cannot return people to a place where their lives are at risk. When the negotiations were initially announced, Schwartz penned a letter to the State Department asking officials not to go through with the agreement and calling it “unconscionable.”

“It's just a distortion of the concept [of a safe third country],” Schwartz says. “This agreement uses an arrangement designed to provide protection for people in the most cynical and grotesque way.”

Maureen Meyer, director for Mexico and migrant rights for the Washington Office on Latin America, added, “It's sort of laughable that Guatemala, which is a country of more people leaving, is actually offering to be the one to absorb citizens from El Salvador and Honduras when they can't even feed and protect their own population.”

It's a geographic reality that asylum seekers from El Salvador and Honduras must pass through Guatemala first, so potentially every asylum seeker from those countries would have to go back to Guatemala for processing.

Violence and poverty are major drivers of migration, but more recently, a rapidly changing climate has drastically hurt Guatemalan farmers’ output and forced them to seek opportunity elsewhere. So new asylum seekers would have little chance in a collapsing economy to subsist in the months, if not years, it would take to process claims.

Reports on the negotiations suggest that Guatemala is asking for financial and other resources to bolster their ability to process asylum claims. Direct financial aid to Mexico or Guatemala in support of their asylum systems would play into the narrative that the U.S. is outsourcing its own system.

Part of the Trump administration's negotiating strategy with Guatemala on the agreement has been turning a blind eye to graft. “We're seeing right now one of [Guatemala's] most corrupt presidents, Jimmy Morales, that we've seen in a long time and the Trump administration has actively supported him, kicking out anti-corruption efforts,” says Daniella Burgi-Palomino, a senior associate with the Latin America Working Group. Although Guatemala just had elections, Morales will remain in power until January 2020, long enough to oversee an immigration deal brokered with Trump.

After the Guatemalan civil war of more than 30 years, the U.N. stepped in to help purge Guatemala's government of corruption. The U.N. International Commission against Impunity in Guatemala, known as CICIG, worked as an independent body—heavily supported by the United States—to investigate government corruption. But, backed by Trump, Morales has overseen a decline in CICIG's authority and backed those politicians CICIG accused. Although Morales campaigned on reform, he switched sides once he and his family were accused.

As Morales has worked to undermine CICIG's power, the Trump administration has looked the other way. Burgi-Palomino explained that the Trump administration is hoping that by overlooking corruption in the country, Guatemala will make good faith efforts to stop migration north.

Recently, the U.S. also announced aid cuts to the Northern Triangle countries. While this move could be seen as an effort to pressure Guatemala’s government into conceding to Trump, cutting aid is unlikely to be a successful mechanism to stymie migration.

The Guatemalan government seems to have also signaled its cooperation in other ways. After the U.S. moved its embassy to Jerusalem, Guatemala followed suit almost immediately, indicating its willingness to cooperate with the Trump administration.

The agreement signals the U.S. government's increasing hands-on involvement in policing borders in Latin America. The Northern Triangle countries have an agreement where their citizens can freely cross borders between the countries. Now there are Department of Homeland Security (DHS) agents at their borders. In Guatemala, they are engaged in extensive anti-smuggling operations.

“Previously, these efforts went through the State Department. Here you see DHS inserting itself into foreign policy,” says Burgi-Palomino. “It's an effort to directly place DHS and enforcement agents at another border. We're very concerned about what agents might mean for migrants in Guatemala and those who are crossing through Guatemala.”

Lee Gelernt, an immigration lawyer with the ACLU, said that one could argue that an agreement with Guatemala violates both domestic and international law.

“I don't think Guatemala comes close to having the ability to provide anything close to full opportunity to apply for asylum,” Gelernt said.

“The U.S. commitment to the refugee convention is under serious attack right now by this administration,” says Eleanor Acer, director of Human Rights First's Refugee Protection program.

The administration has tried a test run on the safe third country agreement, in its dealings with Mexico. So far, Mexico has resisted its own safe third country agreement, but the so-called Migrant Protection Protocols implemented earlier this year, informally known as the “Remain in Mexico” policy, are kind of a precursor, and an example of the implications. These protocols require that asylum seekers wait in Mexico while their claims are processed in the U.S. This can take months if not years, and all the while migrants are waiting in Mexico, where refugee advocates say they face significant risks.

“People who have been returned to Mexico from the U.S. have faced grave dangers, kidnappings, threats, assaults, and have been targeted by smugglers and traffickers,” says Acer. She explains that refugees and migrants are targeted for persecution because of their identity as a refugee or migrant; they're seen as a vulnerable population. “There's lots of documentation on how they've disappeared and been targeted by xenophobic violence in Mexico.”

Under a third safe country agreement, waiting in Mexico or Guatemala would not be temporary. It would be asylum seekers' only option.

When Trump was elected, migration numbers fell in what experts called a “wait-and-see” phenomenon. After several months, the numbers went back up as migrants made the calculation that it was still worth it. Should a safe third country agreement be signed with Guatemala, the pattern may repeat itself. Asylum seekers and migrants may wait to determine how the treacherous journey has changed, and then they still may make the choice that going north is their best option.

But experts like Deborah Anker, a Harvard law professor who focuses on asylum, believe that the flow of migrants would eventually continue. She tells the Prospect: “The reality is that people will keep trying to find a way to come because it’s a life or death situation for them and their families. But the Trump administration is trying to get around this by having this agreement.”

UPDATE: In a statement, a State Department spokesperson refused to comment on any pending deal or discussions with Guatemala. "We do not discuss internal and interagency deliberations, nor do we discuss specific documents or communications that are involved in such deliberations," the spokesperson said.