The White House Wants To Send Asylum Seekers To Guatemala. This is Probably Illegal

This piece was originally published in UN Dispatch.

In a particularly egregious violation of law and common decency, the Trump White House is pressing U.S. diplomats to negotiate a “safe third country agreement” with Guatemala. This is a terrible idea which, if implemented, will put the lives of thousands of Central Americans at great risk. It is a violation so serious, that as a former assistant Secretary of State in charge of implementing refugee and migration policies, I took the unusual step of writing a letter to the State Department’s Acting Legal Adviser Marik String, urging he and his office cease involvement in efforts to secure the agreement. 

A safe third country agreement is an exercise in responsibility-sharing between two governments on the handling of asylum claims, and the United States currently has only one such agreement—with the government of Canada. Under the arrangement, asylum seekers from any part of the world who enter Canada but then travel to the United States to seek asylum may be returned to Canada for asylum adjudications. Conversely, those who enter the United States and then travel to Canada to seek asylum may be returned to the United States. In other words, the agreement ensures that the asylum seeker’s claim is considered in the country that the asylum seeker has entered first.

Because nearly all Salvadoran and Honduran asylum seekers transit Guatemala before approaching the U.S. border, a safe third country agreement between the United States and Guatemala would enable U.S. officials to force asylum seekers from El Salvador and Honduras into Guatemala. Presumably, their asylum claims would be considered in Guatemala by Guatemalan officials. 

There are many reasons why such an arrangement is a very bad idea. First, it would violate the U.S. Immigration and Nationality Act, which requires that a government with which the United States negotiates a safe third country agreement must provide the asylum seeker “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” No serious assessment could conclude that Guatemala provides such access, as Guatemala has scant experience in dealing with asylum seekers and little capacity to gear up a full and fair procedure. 

In fact, the Trump administration’s own 2018 human rights report for Guatemala noted UNHCR’s findings that “identification and referral mechanisms for potential asylum seekers were inadequate,” adding that “[b]oth migration and police authorities lacked adequate training concerning the rules for establishing refugee status.” These diplomatically worded conclusions—as significant as they are—understate the depth of Guatemala’s lack of capacity or experience in dealing with large populations of asylum seekers.

In addition, forcing asylum seekers into Guatemala would almost certainly run afoul of both U.S. and international refugee law, which specify that an asylum seeker may only be transported to a place where his or her “life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.” In fact, it is reasonable to expect that individuals being forced into Guatemala pursuant to a safe third country agreement would constitute a particularly vulnerable social group subject to grave risks at the hands of gangs and other criminal elements. Concerns on this score result from the extraordinarily high rates of crime, including homicide, in Guatemala, gang violence, and—perhaps most significantly—the absence of capacity of the government of Guatemala to provide even a modicum of services or security for returned asylum seekers—who would likely be in highly vulnerable situations for extended periods.

In short, as a foreseeable result of completion of such an agreement, the lives of asylum seekers would be put at risk, underscoring not only a legal, but an ethical obligation to suspend these talks.

To be sure, U.S. policymakers have authority to adopt a variety of permissible interpretations of the U.S. law, and there is little doubt that the White House is pressing lawyers at the State Department and elsewhere in the administration to adopt the official view that this proposed and unsavory arrangement be declared legally permissible. 

But however flexible the law might be, it is not infinitely malleable—and this agreement stretches the law beyond recognition.

It is hard to imagine that these considerations will impact a White House intent on pursuing the president’s agenda, but they should not deter other administration officials—at the Departments of State, Homeland Security, and Justice—who are being asked to pursue these unacceptable legal and policy outcomes. As a matter of law and of ethics—not to mention the lives of thousands of Central Americans—U.S. diplomats and lawyers should make clear they cannot partake in these safe third country negotiations. They should also do everything within their authority to raise objections to this dangerous—and misnamed—proposal.