Last Friday, media reports, including the Prospect, indicated that Guatemala and the U.S. were ready to sign a “safe third country” agreement, which would force most asylum seekers coming up from Central America to apply in Guatemala. Under such an agreement between nations, asylum seekers would have to apply in the first safe country they set foot in. These are not new agreements—there are several in Europe and one between the U.S. and Canada—but this one would have relied on the questionable definition of Guatemala as “safe.”
Because of the typical flow of migrants northward from the Northern Triangle countries, a safe third country agreement would consign virtually all asylum seekers from Honduras and El Salvador to file for asylum in Guatemala. Refugee advocates have said this would be incredibly dangerous for asylum seekers, and that Guatemala’s asylum system is far from ready to process and keep safe large numbers of migrants. Guatemala struggles to keep its own citizens safe and has one of the highest homicide rates in the world.
Just one day after the media reports, the Guatemalan government said it was not ready to sign a safe third country agreement. And on Sunday, Guatemalan President Jimmy Morales announced that he was canceling his visit to the U.S. to meet with President Trump, reinforcing that the agreement was, at least for now, dead.
Three former Guatemalan foreign ministers had already begun the process of seeking an injunction to the signing of a safe third country agreement to the country’s Constitutional Court. According the statement released by the Guatemalan government postponing the Trump summit, the government wanted to wait until the Constitutional Court made a ruling on the injunction before continuing with the planned summit.
While the safe third country agreement seems to be temporarily tabled, this morning the Department of Homeland Security and the Department of Justice published a new rule in the Federal Register that would severely limit the rights of asylum seekers to file for asylum in the U.S. when they reached the southern border. The rule specifies that anyone coming across the southern border who did not apply in a third country outside the person’s “country of citizenship, nationality, or last lawful habitual residence” through which the person came en route to the U.S. is ineligible for asylum.
This means that that country does not even have to be considered “safe,” as it would have to be under a safe third country agreement. Because it is an interim final rule, it is due to take effect tomorrow, unlike other rules that have a public comment period of 30 to 60 days. “Today's action will reduce the overwhelming burdens on our domestic system caused by asylum-seekers failing to seek urgent protection in the first available country, economic migrants lacking a legitimate fear of persecution, and the transnational criminal organizations, traffickers, and smugglers exploiting our system for profits,” said acting DHS secretary Kevin McAleenan in a statement.
It is likely to be immediately challenged in court under domestic and international grounds. In a statement about the new rule, deputy director of the Immigrants’ Rights Project of the American Civil Liberties Union Lee Gelernt said, “The Trump administration is trying to unilaterally reverse our country's legal and moral commitment to protect those fleeing danger. This new rule is patently unlawful and we will sue swiftly.”
Attorney General William Barr argues that the rule is lawful because of the U.S.’s ability to restrict eligibility of asylum. “This Rule will decrease forum shopping by economic migrants and those who seek to exploit our asylum system to obtain entry to the United States—while ensuring that no one is removed from the United States who is more likely than not to be tortured or persecuted on account of a protected ground,” Barr said in a statement.
The effect of this agreement on asylum seekers being turned back at the border and asylum seekers currently held in detention is unclear, according to Daniella Burgi-Palomino, senior associate for the Latin America Working Group. She said she hopes that the courts will act fast when the rule is challenged.
"Any delay from the courts on this rule could really mean death for asylum seekers. This rule forces people to wait in Mexico or Guatemala, in places where it’s not safe for asylum seekers to be in the first place," says Burgi-Palomino.
"This ruling not only effects Central Americans but also extra continental migrants coming from other countries who are attempting to seek asylum at the southern border," Burgi-Palomino says.
The new rule also applies to the “credible fear” interview, in which asylum seekers arriving in the country show that they fear for their safety in their home country. Unlike the “credible fear” interview, the second phase of seeking asylum, when an immigration court adjudicates the case, is much harder to win. During the interim time between the first and second phases, which can be as long as years, asylum seekers are living and working in the U.S. By preventing asylum seekers from filing in the U.S. in the first place, the Trump administration is hoping that this new rule will cut down on the discrepancy between how many asylum seekers get through the first screening but fail to win their case in immigration court.
Guatemala faced pressure from the U.S. government to sign a safe third country agreement. As President Jimmy Morales gained more power and began to limit CIGIG—the UN commission against impunity in Guatemala—the Trump administration turned a blind eye. In exchange, it seems, Morales would acquiesce to Trump’s demands on immigrants. The Trump administration was playing with a heavy hand, including sending DHS agents to Guatemala’s northern border with Mexico.
Trump is also trying to force migrants to stay in Mexico using Migrant Protection Protocols, informally known as “Remain in Mexico,” where asylum seekers must remain in Mexico while their claims are processed in the U.S. In addition, the clock has almost run out on a 45-day agreement between the U.S. and Mexico signed in June. During the 45 days, Trump asked Mexico to dramatically lower the numbers of asylum seekers apprehended at the U.S. border. If Mexico did not satisfactorily lower those numbers—which were not specified—the government said that they would consider signing a safe third country agreement. Though the numbers of apprehended migrants fell in June, it is unclear how the administration’s latest rule on asylum eligibility will affect the negotiations with Mexico at the end of the 45 days.
Deborah Anker, a professor at Harvard who specializes in asylum, said that what the Trump administration has been doing on asylum policy reflects “the dismantling of the whole refugee protection system that was established after World War II.”
The administration has clearly grown impatient with trying to force Mexico or Guatemala to accept migrants, and now is proposing a rule to shut off access to the U.S. for migrants entirely. Such a process would render the cruelty seen at the border currently invisible, outsourced beyond the reach of the domestic press. It would enable Trump to take credit for “solving” the problem, when he’d be merely shoving it underground.