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“Safe” Third Country Agreement with Guatemala?

 

Far From It

On Friday, the New York Times reported that the Trump administration entered into what was described by the Acting Secretary of Homeland Security as a “safe country” agreement with Guatemala to “to require people who travel through that country to seek refuge from persecution there instead of in the United States.” As the New York Times notes, however, “critics said that the law clearly requires the ‘safe third’ country to be a truly safe place where migrants will not be in danger. And it requires that the country have the ability to provide a ‘full and fair’ system of protections that can accommodate asylum seekers who are sent there.” ACLU’s Lee Gelernt noted, “Guatemala can neither offer a safe nor fair and full process [as required by U.S. Law], and nobody could plausibly argue otherwise.”

U.S. Immigration Law Authorizes Safe Third Country Agreements But Only With Countries That Have Full and Fair Asylum Processes

Section 208 of the U.S. Immigration and Nationality Act allows the U.S. to send asylum applicants to “safe third” countries pursuant to agreement with those countries, but only if the asylum applicants’ “life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Until Friday, the U.S. had engaged in only one other safe third country agreement with Canada. Now, the U.S. and Guatemala have reportedly entered into such an agreement, but it is questionable whether this new agreement meets the safety and process requirements under Immigration and Nationality Act.

The U.S. Government Itself Considers Guatemala Unsafe 

The U.S. State Department has issued reports warning of unsafe conditions in Guatemala for its citizens and U.S citizens traveling there.  The State Department’s country report on human rights in Guatemala says:

Human rights issues included reports of harsh and life-threatening prison conditions; widespread corruption; trafficking in persons; crimes involving violence or threats thereof targeting lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, persons with disabilities, and members of other minority groups; and use of forced or compulsory or child labor.

Corruption and inadequate investigations made prosecution difficult, and impunity continued to be widespread. Parts of the government collaborated with the International Commission against Impunity in Guatemala (CICIG) (an entity created by agreement between the government and the UN) to prosecute the worst forms of corruption. On August 31, however, President Morales announced he would not renew the CICIG mandate, which expires in September 2019. On September 4, authorities barred CICIG commissioner Ivan Velasquez from re-entry for reasons of “national security.

Similarly, the U.S. State Department’s advice for U.S. citizen’s traveling to Guatemala states:

Exercise increased caution in Guatemala due to crime.

….

Violent crime, such as armed robbery and murder, is common. Gang activity, such as extortion, violent street crime, and narcotics trafficking, is widespread. Local police may lack the resources to respond effectively to serious criminal incidents.

….

Reports of sexual assault remain high. Support for victims of sexual assault is lacking.

In six regions of this small country, the State Department recommends that U.S. citizens reconsider travel there.

Human Rights Watch (HRW) similarly reports that, “Violence and extortion by powerful criminal organizations remain serious problems in Guatemala. Gang-related violence is an important factor prompting people, including unaccompanied children and young adults, to leave the country.” HRW goes onto explain serious concern over public security, corruption, criminal justice, women and girls’ rights, and sexual orientation and gender identity discrimination.

Guatemala Seriously Lacks Capacity to Process Asylum Seekers

There are serious questions about Guatemala’s capacity to provide “a full and fair procedure for determining a claim to asylum,” as required by U.S. immigration law. According to Kids in Need of Defense (KIND),

Guatemala’s tiny asylum system is no match for the 60,000 Hondurans and Salvadorans who filed claims in the United States in 2018. With three asylum officers in the entire country to interview applicants, only 300 asylum cases filed in 2018, and zero cases approved for over an entire year, the idea that Guatemala can provide protection is laughable. Guatemala’s system would collapse if faced with these numbers. The U.S. Department of State has even criticized Guatemala’s asylum system for being “inadequate.”

Unclear Whether Agreement Was Lawfully Entered Into

After months of negotiations between the U.S. and Guatemala to achieve a “safe” third country agreement, talks recently broke down when the Guatemalan Constitutional Court ruled that, according to the Washington Post, the Guatemalan “President Jimmy Morales needed approval from the Guatemalan Congress to sign the accord, something he has not received.” Then, President Trump engaged in a series of threatening statements and Tweets, including potential imposition of tariffs, a travel ban, and a tax on remittances.  Shortly thereafter, the agreement was signed.  But, as the Washington Post states, “the agreement is built on a fragile political and legal base” due to the Guatemalan Constitutional Court’s decision.

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:

Like the Trump administration’s recent defeat in implementing an unlawful regulation that would have barred asylum in the U.S. for anyone traveling through a third country, this latest attempt to limit asylum in the U.S. will likely see a similar fate. Not only does this so-called ‘safe’ third country agreement fail to meet the requirements of U.S. immigration law, there are questions about whether the Guatemalan government has legally entered into the agreement at this time, without agreement by the Guatemalan Congress, as required by the Guatemalan Constitutional Court.

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:

The so-called ‘safe’ third country agreement between the U.S. and Guatemala doesn’t meet the basic requirements of the law. Our own U.S. Department of State reports that Guatemala is a dangerous place; rife with corruption and violent crime, including sexual assault and human trafficking. It’s ludicrous to suggest that Guatemala is a safe place where families would not be threatened with violence or worse while waiting for their asylum cases to be heard. It’s also ridiculous to claim that Guatemala is able to provide asylum seekers a full and fair procedure for safely adjudicating their claims.  Simply put, the so-called ‘safe’ third country agreement between the U.S. and Guatemala violates U.S. asylum law and is repugnant to core American values.