On December 10, 2019, the Los Angeles Times reported that the Department of Homeland Security (DHS) has begun the transfer of families to Guatemala under the terms of the bilateral asylum cooperative agreement ("ACA", also known as a "safe third-country agreement") entered into between the government of that country and the United States. Handled properly, this process can be a model for the implementation of similar agreements, which will break the stranglehold of smugglers and share the burden of protecting migrants with our regional partners.
In November, I noted that DHS and the Department of Justice (DOJ) had issued an interim final rule (IFR) captioned "Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act". That rule modifies existing regulations to implement ACAs, allowing DHS to make such transfers.
The Times reported that the United States had initially only indicated an intention to transfer single adults, but as noted has now expanded it to include third-country national parents. Interestingly, that article stated: "U.S. officials have started to send families seeking asylum to Guatemala, even if they are not from the Central American country and had sought protection in the United States." (Emphasis added.) Respectfully, this shows a certain misunderstanding of such safe third-country agreements.
As I stated in my November post:
The underlying principle is simple: The United States will offer protection to foreign nationals who have, or will be, persecuted or tortured in their home countries, but those foreign nationals do not get to pick or choose the country in which they will seek sanctuary. Rather, consistent with the idea that a person who is truly in danger will seek refuge in the first country in which he or she arrives, the United States has entered into ACAs with third countries through which those individuals have passed to ensure that they can, and will, provide the necessary protection.
Under the IFR, [U.S. Citizenship and Immigration Services (USCIS) in an expedited removal proceeding] or an immigration judge (IJ, in a section 240 removal proceeding) can order removal of the alien to one or more of the countries with which the United States has an ACA, provided that the alien fails to pass a screening where the alien would have to show that it is more likely than not that he or she would face persecution in that third country. Notably, this is the withholding of removal, or "non-refoulement", standard, which is higher than the "well-founded fear" standard for asylum cases, and is consistent with the terms of section 208(a)(2)(A) of the [Immigration and Nationality Act (INA)]. ... If the alien fails to pass that screening, the proceedings could be completed without consideration of the alien's asylum or [Convention Against Torture (CAT)] claims, and the alien would be ordered removed to one or more of the ACA countries.
The IFR is not intended to be used to return a migrant to the country of the migrant's nationality or last habitual residence — those aliens must be removed under expedited removal section 240 removal proceedings. But that does not mean that DHS, in cooperation with our regional partners, cannot transfer the alien to a safe third country. In fact, as noted above, section 208(a)(2)(A) of the INA specifically provides for removal to those countries if the U.S. government has an ACA with that country.
The Times reports that this safe third-country process "currently faces legal challenges", but DOJ is on fairly solid ground (with a caveat). Specifically, the aforementioned section of the INA provides the attorney general with the authority to take such action, provided he concludes that the migrant will not be harmed in the third country and that "the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection." In the quoted excerpt lies the caveat.
The Times asserts: "Guatemala has virtually no asylum system of its own, but the Trump administration and Guatemalan government both said the returns would roll out slowly and selectively." The latest State Department Country Report on Human Rights Practices for Guatemala clarifies the adverb "virtually", explaining:
The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to refugees, returning refugees, asylum seekers, stateless persons, or other persons of concern, including during the mid-October surge of Central American migrants that passed through the country.
Access to Asylum: The laws provide for the granting of asylum or refugee status, and the government has established a system for providing protection to refugees. UNHCR, however, reported that identification and referral mechanisms for potential asylum seekers were inadequate. Both migration and police authorities lacked adequate training concerning the rules for establishing refugee status.
The former issue (the inadequacy of identification and referral mechanisms) is not a problem, because the asylum applicants in question will be identified according to the terms of the ACA. The latter issue is more pressing, but is one that can be remedied through UNHCR and U.S. government assistance. As Fox News has reported: "The U.S. is underwriting Guatemala's asylum system, both through funding directly to the country and also via funding to" UNHCR.
While UNHCR has "serious concerns" about the ACA (to which it is not a party), it stated: "We are in dialogue with all of the governments concerned to enumerate our concerns as we also seek to learn more about their plans for implementation."
I would note that UNHCR has a budget of $468 million for the Americas for 2020, and the United States has provided $1.654 billion to that office in 2019 (more than three times the contribution of the next leading donor, the European Union at almost $478 million, and not counting more than $27 million from private U.S. donors), so it would appear that it has the funding to help Guatemala train its migration and police authorities to comply with its asylum responsibilities. UNHCR should stop dialoguing and learning, and start doing.
Moreover, given the fact that most migrants in the Americas seem to be on their way to the United States, one wonders what UNHCR was planning to do with the $468 million allotment. Guatemala has shown its willingness to do its share, and UNHCR should help.
Further, the United States is not exactly overwhelming Guatemala with transfers. The Times article focuses on a family of three Honduran nationals and a "separate Honduran parent and child", and Guatemalan Interior Minister Enrique Degenhart Asturias has told reporters previously that "Guatemala will take steps to gradually increase the number of foreign asylum-seekers it will receive." (Emphasis added.)
And as CBS News has reported:
Asked about concerns of the deal infringing on the rights of asylum-seekers, Degenhart Asturias said the agreement is designed to dismantle smuggling organizations who advertise the dangerous journey to the U.S. to the region's poor. "At no time have we sought to attack or harm the rights of migrants," he added.
Transnational criminal organizations, he contended, are well-organized and have a "marketing organization" that uses various popular social media to "put out offers" to the Guatemalan population. He also complained about the disconnect between the pictures of Guatemalans who have successfully made it to the United States (which are shown in the country), and the risks along the route, which are not. He referred in particular to a case of a 20- to 30-year-old male who had been raped several times along the journey to the United States, arriving in distress when he was apprehended. Afterwards, however, Minister Degenhart suggested that this individual took pictures that he sent back "giving the message he was having a great life" in this country.
The United States will have to play a role in ensuring that Guatemala and other countries with which it is negotiating ACAs have the capacity to process asylum seekers in accordance with their obligations under international law, or the interim final rule is likely to be blocked in U.S. courts. That said, the removal of migrants by DHS to Guatemala is the beginning of a process, not a finished one. Once completed, it will likely turn off the magnet that draws migrants to undertake the dangerous journey Degenhart described, a positive result in and of itself.
And at least it is a beginning.