Agreements with “Safe Third Countries” for Asylum Seekers
Controlling immigration at the southern border has been a recent focus of the US government, with federal agencies working to reduce “the burdens associated with adjudicating asylum claims.”1 Last year, the United States signed bilateral asylum cooperative agreements (“ACAs”) with El Salvador, Guatemala, and Honduras.2 The agreements allow the Attorney General to determine if the asylum seekers may be removed to those countries.3 But this attempt to alleviate strains on the immigration system may not provide an adequate solution for Central American asylum seekers, as required by the Immigration and Nationality Act ("INA").
Under the INA, any non-citizen may apply for asylum in the United States or at a US border.4 However, the INA creates an exception for asylum seekers who can be removed to a safe third country pursuant to an ACA, provided that the third country offers a “full and fair procedure” for determining asylum claims.5 The Attorney General is using this exception to curtail the number of asylum claims in the United States, thus alleviating a bureaucratic burden.6 However, the ACAs do not provide a promising path forward for asylum seekers, particularly those from Mexico.
Asylum officers with the Department of Homeland Security or immigration judges determine if the existing ACAs prevent incoming asylum seekers of any national origin from filing a claim in the United States.7 If so, the immigrants are then removed to countries with the applicable ACA, where they can apply for asylum.8 But immigrants from El Salvador, Guatemala, and Honduras have filed almost half of the pending asylum claims in the United States.9 As a result, many asylum seekers would have to rely on countries with internal issues that have caused thousands of their own citizens to flee.10
Additionally, DHS plans to reduce asylum claims by sending Mexican asylum seekers to Guatemala.11 Mexican citizens have accounted for half of the recent arrests at the border, about three times more than any other nationality.12 However, the plan to send Mexican asylum seekers to Guatemala faces an obstacle: the US-Guatemala ACA only covers asylum seekers from Honduras and El Salvador.13 As the current Guatemalan president transitions out of power, the new president will have to decide whether to accept Mexican asylum seekers.14
Sending asylum applicants who have lived through persecution and fear in their home countries to neighboring countries with similar security issues and corruption does not seem to meet the “full and fair procedure” and safety requirements of the INA’s third-country exception.15 To take Guatemala as an example, the country has a limited asylum system in place and has struggled with human rights issues.16 Unsurprisingly, of the ninety-four asylum seekers sent to the country under its ACA with the United States, only six sought asylum there rather than return to their home countries – raising questions about the adequacy of its asylum procedures.17 And the country is so unsafe that, in 2018 alone, 33,000 Guatemalans fled and applied for asylum in the United States.18 It therefore appears that the ACAs may not meet the requirements of US immigration law, and that Central American asylum seekers will continue to face daunting obstacles in their search for safe harbor.
Luisa Marin is a staff member of Fordham International Law Journal Volume XLIII.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.1 Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act, 84 Fed. Reg. 63,994, 63,994 (Nov. 19, 2019) (to be codified at 8 C.F.R. pt. 206).
2 Id. at 64,005.
3 See 8 U.S.C. § 1158(a)(2)(A) (2018).
4 Id.
5 Id.
6 See Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act, 84 Fed. Reg. at 64,005.
7 Id. at 63,998.
8 Id.
9 Id. at 63,995.
10 See id.
11 Elliot Spagat, US Border Arrests Drop as Focus Turns to Mexicans, U.S. News (Jan. 9, 2020, 10:29 PM), https://www.usnews.com/news/politics/articles/2020-01-09/us-border-arrests-drop-on-as-focus-turns-to-mexicans.
12 Id.
13 Sonny Figueroa, Guatemala President Says No Deal To Send Mexicans There, AP (Jan. 9, 2020), https://apnews.com/344fd910bae40e258ffa2feeb2c5841b.
14 See id.
15 See, e.g., Human Rights First, Fact Sheet: Is Guatemala Safe for Refugees and Asylum Seekers? (June 2019), https://www.humanrightsfirst.org/sites/default/files/GUATEMALA_SAFE_THIRD.pdf.
16 Id.
17 Spagat, supra note 11.
18 UNHCR, Global Trends: Forced Displacement in 2018 42 (2019), https://www.unhcr.org/en-us/statistics/unhcrstats/5d08d7ee7/unhcr-global-trends-2018.html.