[Senate Prints 117-13]
[From the U.S. Government Publishing Office]
117th Congress} { S. Prt.
COMMITTEE PRINT
1st Session } { 117-13
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CRUELTY, COERCION, AND LEGAL
CONTORTIONS: THE TRUMP
ADMINISTRATIONS UNSAFE ASYLUM
COOPERATIVE AGREEMENTS WITH
GUATEMALA, HONDURAS, AND
EL SALVADOR
__________
A MAJORITY STAFF REPORT
PREPARED FOR THE USE OF THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
One Hundred Seventeenth Congress
FIRST SESSION
January 18, 2021
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Foreign Relations
Available via the World Wide Web:
http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-788 PDF WASHINGTON : 2021
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COMMITTEE ON FOREIGN RELATIONS
ROBERT MENENDEZ, New Jersey, Chairman
BENJAMIN L. CARDIN, Maryland JAMES E. RISCH, Idaho
JEANNE SHAHEEN, New Hampshire MARCO RUBIO, Florida
CHRISTOPHER A. COONS, Delaware RON JOHNSON, Wisconsin
CHRISTOPHER MURPHY, Connecticut MITT ROMNEY, Utah
TIM KAINE, Virginia ROB PORTMAN, Ohio
EDWARD J. MARKEY, Massachusetts RAND PAUL, Kentucky
JEFF MERKLEY, Oregon TODD YOUNG, Indiana
CORY A. BOOKER, New Jersey JOHN BARRASSO, Wyoming
BRIAN SCHATZ, Hawaii TED CRUZ, Texas
CHRIS VAN HOLLEN, Maryland MIKE ROUNDS, South Dakota
BILL HAGERTY, Tennessee
Jessica Lewis, Staff Director
Christopher M. Socha, Republican Staff Director
John Dutton, Chief Clerk
C O N T E N T S
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Page
I. Introduction................................................. 1
II. Subverting U.S. Asylum Law................................... 5
Background: U.S.-Canada Safe Third Country Agreement......... 7
Asylum Cooperative Agreements................................ 8
Distorting the Law's Meaning and Intent...................... 8
III. Bullying Tactics as Foreign Policy.......................... 11
Internal Government Objections............................... 12
High-Level Coercion.......................................... 13
IV. Trump Administration Secrecy and Obstruction................. 15
V. Protection Conditions in Central America's Northern Triangle. 17
Nascent Institutional Capacity............................... 18
Grave Dangers on the Ground.................................. 19
International Condemnation................................... 20
VI. Implementation in Violation of Human Rights.................. 23
Determinations Based on Partial Truths....................... 23
Degrading Conditions During Transfer......................... 24
Coercion and Fear in Guatemala............................... 24
COVID-19 and Displacement Trends............................. 27
VII. Conclusion, Findings, and Recommendations................... 29
Principal Findings........................................... 30
Recommendations.............................................. 32
ANNEXES
Annex 1: Definitions of Key Terms................................ 35
Annex 2: Legal Challenges to Trump Administration Immigration
Policies....................................................... 37
Annex 3: Key Documents related to the U.S.-Guatemala Asylum
Cooperative Agreement.......................................... 41
Attorney General's Determination............................. 41
DHS Determination............................................ 43
Diplomatic cable: U.S. Embassy Guatemala Assessment of the
Guatemalan Asylum System................................... 45
Annex 4: State Department Responses to Senate Foreign Relations
Committee Questions for the Record............................. 52
State Department Responses submitted December 2, 2019........ 52
State Department Responses submitted December 23, 2019....... 55
Revised State Department Responses submitted February 14,
2020....................................................... 65
Revised State Department Responses submitted July 9, 2020.... 71
(iii)
Annex 5: Correspondence between U.S. Senators and the Trump
administration................................................. 79
Letter from Senators Menendez, Warren et al. to State
Department and DHS......................................... 79
DHS response to Senators Warren and Menendez................. 87
Letter from Senator Menendez to Assistant Secretary of State
Taylor..................................................... 90
Letter from Senator Menendez to Secretary Pompeo............. 92
I. Introduction
----------
Since his first days in office in 2017, President Donald
Trump has aggressively exploited the U.S. immigration system to
reduce the number of foreigners allowed entry into the United
States, and especially to repel refugees, asylum seekers, and
other vulnerable migrants in need of protection.\1\ From
separating migrant children from their parents at the border to
decimating the U.S. Refugee Admissions Program to terminating
Temporary Protected Status (TPS) for nearly 400,000 individuals
at risk of deportation, the president has blocked people
fleeing persecution, torture, and other vital threats from
protection in the United States and systematically dismantled
the institutions that made America a humanitarian leader.\2\
The Trump administration implemented these policies despite
record levels of forced displacement globally, with 26 million
refugees and 4.2 million asylum seekers having fled persecution
and conflict at the end of 2019.\3\ While these policies have
faced legal challenges in U.S. courts, their implementation has
trampled on the United States' history as a haven from
persecution, betrayed American values, and undermined U.S.
global leadership. Our retreat--and the mockery this
administration has made of a global protection regime--has made
it easier for other countries to shirk their international
obligations. The result is a severe weakening of migrant and
refugee protections that leaves millions of people more
vulnerable and increases instability and the potential for
conflict.
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\1\ See Annex 1 for definitions of key terms.
\2\ Michael D. Shear et al., `` `We Need to Take Away Children,' No
Matter How Young, Justice Dept. Officials Said,'' The New York Times,
Oct. 21, 2020; Nick Miroff, ``Trump Cuts Refugee Cap to Lowest Level
Ever, Depicts Them on Campaign Trail as a Threat and Burden,'' The
Washington Post, Oct. 1, 2020; ``Playing Politics with Humanitarian
Protections: How Political Aims Trumped U.S. National Security and the
Safety of TPS Recipients,'' Democratic Staff Report, Senate Committee
on Foreign Relations, Nov. 7, 2019.
\3\ ``Global Trends: Forced Displacement in 2019,'' United Nations
High Commissioner for Refugees (UNHCR), June 18, 2020, https://
www.unhcr.org/globaltrends2019/.
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One striking example of the effort to eviscerate long-
standing American protection policy is the set of agreements
the Trump administration signed with El Salvador, Guatemala,
and Honduras, the so-called ``Asylum Cooperative Agreements''
(ACAs). These agreements follow a pattern of unlawful maneuvers
designed to close off legal pathways to protection in the
United States.\4\ Starting in the spring of 2019, the Trump
administration began negotiations with Guatemala, Honduras, and
El Salvador on the series of agreements, which stem from a
little-known ``safe third country'' provision of U.S.
immigration law. The ACAs serve as mechanisms to repel asylum
seekers from the United States and relocate them in the
signatory Central American countries to pursue asylum claims
there. Designed not just to export U.S. refugee obligations,
but to do so, for example, by sending Hondurans to Guatemala
and Guatemalans to Honduras in a cynical game of musical chairs
in one of the most violent regions of the world, the ACAs are
particularly damaging both to the people seeking asylum and to
America's global leadership.
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\4\ See Annex 2.
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Since their inception, the ACAs with Guatemala, Honduras,
and El Salvador have provoked grave concerns within the U.S.
government, within the foreign governments negotiating the
agreements, and among external experts. Based on these
concerns, and in furtherance of its oversight responsibilities,
the Senate Foreign Relations Committee (SFRC) Democratic Staff
investigated the ACAs.
This report examines the ACAs' impact on the lives of
refugees and asylum seekers, their tenuous foundation in U.S.
law, and their role in U.S. foreign policy toward Central
America. The Report is based on information gleaned through
Committee hearings, travel to the region, rigorous oversight of
the State Department, and consultations with international
organizations and human rights advocates--information learned
despite the Trump administration's obstruction and efforts to
hide relevant documentation. Annexes to this report include
previously unpublished written material provided by the State
Department to SFRC Democratic Staff. The report's annexes also
include key documents related to the ACAs that the Trump
administration refused to disclose to SFRC, ensuring they are
now freely accessible to the public. SFRC Democratic Staff has
found the ACAs to be alarmingly abusive in every respect.
Specifically, SFRC Democratic Staff found that:
The ACAs appear to violate U.S. law and international
obligations by sending asylum seekers and refugees to
countries where their lives or freedom would be
threatened;
Determinations by the Attorney General and DHS Acting
Secretary that Guatemala provides ``full and fair''
access to asylum were based on partial truths and
ignored State Department concerns;
The Trump administration radically distorted the intent and
meaning of the ``safe third country'' provision in U.S.
law, constructing the ACAs to function as a broad bar
to asylum rather than an exception to the right to seek
asylum;
Asylum seekers transferred from the United States to
Guatemala under the ACA were subjected to degrading
treatment and effectively coerced to return to their
home countries of Honduras or El Salvador, where many
feared persecution and harm;
The White House and DHS used coercive tactics to compel the
governments of Guatemala, Honduras, and El Salvador to
sign the ACAs; and
The Trump administration has sought to maintain secrecy,
obstruct accountability, and hide its actions from
Congress and the American public in its pursuit of ACA
implementation.
This report reveals that the ACAs effectively punish people
attempting to reach safety in the United States by sending them
to highly dangerous countries where access to protection from
persecution and violence exists only on paper. Since
implementation of the U.S.-Guatemala ACA began over one year
ago, not one of the 945 asylum seekers transferred from the
United States to Guatemala has been granted asylum.\5\ Instead,
the vast majority have been left with the grievous options of
returning to face serious threats of violence and persecution
in their home countries, or risking abuse on another journey
northward. Although ACA implementation was suspended due to
COVID-19, these counterproductive and unlawful agreements must
never resume and must be terminated as soon as possible.
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\5\ United Nations High Commissioner for Refugees Guatemala office
meeting with SFRC Democratic Staff, Oct. 21, 2020.
II. Subverting U.S. Asylum Law
----------
The ACAs provide a disturbing example of how the Trump
administration has distorted and deliberately disregarded the
intent and statutory language of U.S. asylum law. Although the
Refugee Act of 1980 codified the right to seek asylum in the
United States, the Trump administration has taken the one of
the few, limited exceptions to this right and applied it far
beyond the meaning of the law.\6\ Citing the ``safe third
country'' provision in Section 208(a)(2)(A) of the Immigration
and Nationality Act (INA), the Trump administration created the
ACAs with Guatemala, Honduras, and El Salvador as mechanisms to
remove asylum seekers from the United States without due
process.\7\ Refugees and others in need of protection from
torture arriving at the U.S. Southwest border have little
chance of remaining in the United States as a result of the
ACAs, based on the fraudulent premise that they will have
access to protection in Guatemala, Honduras, or El Salvador.
The stated purpose of the ACAs is to transfer responsibility to
help alleviate ``the burdens associated with adjudicating
asylum claims.''\8\
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\6\ Immigration and Nationality Act, 8 U.S.C. Sec. 1158(a)(1): ``In
general, any alien who is physically present in the United States or
who arrives in the United States (whether or not at a designated port
of arrival and including an who is brought to the United States after
having been interdicted in international or United States waters),
irrespective of such alien's status, may apply for asylum in accordance
with this section. . . .''
\7\ Id.
\8\ U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, and U.S. Department of Justice, Executive Office
of Immigration Review, Implementing Bilateral and Multilateral Asylum
Cooperative Agreements under the Immigration and Nationality Act, 84
Fed. Reg. 63995, Nov. 19, 2019.
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This goal of transferring responsibility distorts the
vision Congress had for sharing responsibility for refugee
protection when it adopted the safe third country provision in
the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996.\9\ Prior to the law's enactment, surging numbers of
asylum applications prompted some members of Congress to
advocate for restrictions on access to asylum in the United
States and they considered mandating that asylum seekers be
returned to transit countries, such as the United Kingdom, that
offered protections similar to the United States.\10\ The
Immigration and Naturalization Service had proposed a
``Discretionary Denial of Asylum'' regulation in 1994.\11\ The
outcome of the immigration reform debate was that Congress
rejected mandated returns, and instead agreed on the
discretionary safe third country provision as a compromise.\12\
The statute states:
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\9\ See Section 604 of Division C of the Omnibus Consolidated
Appropriations Act, 1997 (H.R. 3610/P.L. 104-208).
\10\ Rep. Romano Mazzoli, H.R. 1153, H.R. 1355, and H.R. 1679,
Asylum Reform Act of 1993, Hearing before the House Judiciary
Committee, Subcommittee on International Law, Immigration, and
Refugees, Asylum and Inspections Reform, Apr. 27, 1993, at 215.
\11\ U.S. Department of Justice, Immigration and Naturalization
Service, Final Rule, Rules and Procedures for Adjudication of
Applications for Asylum or Withholding of Deportation and for
Employment Authorization, 59 Fed. Reg. 62295, Dec. 5, 1994.
\12\ ``Eight Days and Counting: Panel Continues Reform Bill Mark-
Up, Promises End is Near,'' 72 No. 41 Interpreter Releases 1447, Oct.
23, 1995, at 3.
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INA Section 208 (a)(2)(A) Safe third country
[The right to apply for asylum in the United States]
shall not apply to an alien if the Attorney General
determines that the alien may be removed, pursuant to a
bilateral or multilateral agreement, to a country
(other than the country of the alien's nationality or,
in the case of an alien having no nationality, the
country of the alien's last habitual residence) in
which the alien's 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, unless the
Attorney General finds that it is in the public
interest for the alien to receive asylum in the United
States.
This provision created an exception to the right to seek
asylum with three clear requirements. First, there must be a
bilateral or multilateral agreement in place. Second, the
Attorney General must determine that the country of removal is
a place where the individual's life or freedom would not be
threatened on account of a protected ground (race, religion,
nationality, membership in a particular social group, or
political opinion). With this language, the provision upholds a
principle of international human rights law known as non-
refoulement, which protects asylum seekers and refugees from
removal not only to their country of origin but to any country
where they would face persecution, torture, or other harm.\13\
The provision thus echoes the withholding of removal provision
established in the 1980 Refugee Act that implements the non-
refoulement obligation in the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol.\14\
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\13\ See Annex 1.
\14\ 8 U.S.C. Sec. 1231(b)(3)(A) states ``the Attorney General may
not remove an alien to a country if the Attorney General decides that
the alien's life or freedom would be threatened in that country because
of the alien's race, religion, nationality, membership in a particular
social group, or political opinion.'' Article 33 of the 1951 Refugee
Convention and 1967 Refugee Protocol states: ``No Contracting State
shall expel or return (``refouler'') a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of
a particular social group or political opinion.''
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Lastly, the safe third country provision requires a
determination that the asylum seeker would have access to a
``full and fair'' asylum procedure or ``equivalent temporary
protection'' in the third country. A recent ruling by the U.S.
Court of Appeals for the Ninth
Circuit underscored the principle girding the safe third
country provision's requirements by stating: ``A critical
component of [the safe third country provision] is the
requirement that the alien's `safe option' be genuinely
safe.''\15\
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\15\ East Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 845-47, 859
(9th Cir. 2020). The Ninth Circuit cited as precedent its 1999
Andriasian v. INS decision: The safe-place requirements embedded in the
safe third country provision ``ensure that if [the United States]
denies a refugee asylum, the refugee will not be forced to return to a
land where he would once again become a victim of harm or
persecution''--an outcome which ``would totally undermine the
humanitarian policy underlying the regulation.'' Id. at 30.
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Background: U.S.-Canada Safe Third Country Agreement
Prior to the ACAs, the United States had utilized the safe
third country provision only once. The United States signed its
first safe third country agreement with Canada in December 2002
after careful consideration of U.S. international legal
obligations to protect refugees. The U.S.-Canada Safe Third
Country Agreement (STCA) took over three years of detailed
negotiations to enter into force and included substantial
consideration of public comments as it sought to fulfill the
statute's requirements.\16\ In a hearing of the House
Subcommittee on Immigration, Border Security, and Claims on the
draft agreement, a State Department witness testified that the
U.S. and Canadian asylum systems are ``two of the world's most
generous and are both fully in keeping with international
protection standards,'' and that, ``[p]roperly crafted, safe
third country agreements are fully consistent with refugee
protection obligations under the 1951 Refugee Convention and
the 1967 Protocol,'' including the prohibition on
refoulement.\17\
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\16\ U.S. Department of Justice, Executive Office of Immigration
Review, ``Asylum Claims Made by Aliens Arriving From Canada at Land
Border Ports-of-Entry, 69 Fed. Reg. 69490, Nov. 20, 2004.
\17\ Statement of J. Kelly Ryan, Deputy Assistant Secretary, Bureau
of Population, Refugees, and Migration, U.S. Department of State,
United States and Canada Safe Third Country Agreement, Hearing before
the House Committee on the Judiciary, Subcommittee on Immigration,
Border Security and Claims, Oct.16, 2002.
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The U.S.-Canada STCA applies only to asylum seekers at land
ports of entry who have transited or been physically present in
the other country or who are in transit during removal from the
other country. Notably, it allows access to legal counsel,
includes exceptions for family reunification, and invites input
from non-governmental organizations (NGOs) and monitoring by
the UN Refugee Agency to ensure its consistency with
international refugee law.\18\ The U.S.-Canada STCA thus stands
as an example of faithful interpretation of the safe third
country provision enshrined in the INA, even if its execution
is now in question in Canada, due to court challenges alleging
that the Trump administration's degrading treatment of asylum
seekers does not make the United States ``safe.''\19\
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\18\ U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, and U.S. Department of Justice, Executive Office
of Immigration Review, Implementing Bilateral and Multilateral Asylum
Cooperative Agreements under the Immigration and Nationality Act, 84
Fed. Reg. 64002-03, Nov. 19, 2019; see also Government of Canada,
``Final Text of Safe Third Country Agreement,'' Refworld, Dec. 5, 2002,
https://www.refworld.org/pdfid/42d7b9944.pdf.
\19\ See Canadian Council for Refugees v. Minister for Immigration
and Minister for Public Safety, 2020 FC 770, Canada Federal Court,
July, 22 2020, available at https://bit.ly/3pJ5d0M. The Court found the
agreement invalid, but suspend the effect of the decision for 6 months.
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Asylum Cooperative Agreements
By contrast, the Trump administration hastily crafted
separate ACAs with Guatemala, Honduras, and El Salvador--with
less than two months between the start of negotiations and
signature for each agreement--and ensured that the agreements
provide broad authority to transfer asylum seekers from the
United States to the agreed countries. Under these agreements,
the United States is responsible for providing asylum screening
only to unaccompanied children and individuals arriving with
legal status on its territory. Guatemala, Honduras, and El
Salvador agreed to receive transfers of any other asylum
seekers arriving irregularly at or between U.S. ports of entry,
except for their own nationals or stateless habitual residents
and convicted criminals.\20\
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\20\ Agreement Between the Government of the United States of
America and the Government of the Republic of Guatemala on Cooperation
Regarding the Examination of Protection Claims, 84 Fed. Reg. 64095,
Nov. 20, 2019; see also Agreement Between the Government of the United
States of America and the Government of the Republic of Honduras on
Cooperation Regarding the Examination of Protection Claims, 85 Fed.
Reg. 25462, May 1, 2020; see also ``Agreement Between the Government of
the United States of America and the Government of the Republic of El
Salvador on Cooperation Regarding the Examination of Protection
Claims,'' https://bit.ly/3pBBIh5 (last visited on Dec. 17, 2020).
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The agreements anticipate implementation plans for the
transfer process. The implementation plans completed for the
Guatemala and Honduras ACAs specify certain nationalities as
eligible for transfer and specify the number of transfers and
their frequency.\21\ The agreements indicate U.S. support for
strengthening the ``institutional capacities'' of Guatemala,
Honduras, and El Salvador, and provide for joint evaluation or
review three months after entry into force. Although the
preambles to the agreements refer to each country's obligations
under international law to protect refugees and uphold the
principle of non-refoulement, there is no mechanism to monitor
or enforce these obligations. The agreements therefore make it
difficult for the United States to ensure that asylum seekers
will not be refouled from the country of transfer.\22\
Additionally, and in further contrast to the U.S.Canada STCA,
there are no provisions allowing access to legal counsel,
exceptions for family reunification, or invitations for input
and monitoring by international humanitarian organizations.
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\21\ ``Agreement Between the Government of the United States of
America and the Government of the Republic of Guatemala on Cooperation
Regarding the Examination of Protection Claims, Annex 1: Initial
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85,
U.T. v. Barr, Case no. 1:20-cv-00116-EGS (D.D.C. Mar. 27, 2020).
\22\ See, e.g., Michelle Foster, Protection Elsewhere: The Legal
Implications of Requiring Refugees to Seek Protection in Another State,
28 Michigan J. Int'l L. 223, 263-268 (2007).
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Distorting the Law's Meaning and Intent
In creating the ACAs, the Trump administration distorted
the intent of the INA's safe third country provision in at
least two important ways. First, although the legislative
history makes clear that Congress intended the safe third
country provision to return asylum seekers in the United States
to a country of transit, the Trump administration exploited the
lack of specificity in the statute, deliberately crafting the
ACAs to allow for the transfer of asylum seekers with no
connection whatsoever to the agreed country of removal.\23\
Although they have not yet been implemented in this way, the
ACAs allow asylum seekers of any nationality to be transferred
from any location in the United States to the agreed third
country, regardless of whether they transited through that
country. Under the ACAs, asylum seekers in the United States
could be apprehended at an airport (not just the U.S.-Mexico
land border) and forcibly sent to a country they have never
transited or visited and where they have no family, friends, or
cultural links. For example, the implementation plan for the
U.S.-Honduras ACA would allow U.S. authorities to transfer a
Brazilian or Mexican asylum seeker to Honduras even if that
person never passed through Central America.\24\
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\23\ See Rep. Romano Mazzoli, H.R. 1153, H.R. 1355, and H.R. 1679,
Asylum Reform Act of 1993, Hearing before the House Judiciary
Committee, Subcommittee on International Law, Immigration, and
Refugees, Asylum and Inspections Reform, Apr. 27, 1993, at 215; U.S.
Department of Justice, Immigration and Naturalization Service, Final
Rule, Rules and Procedures for Adjudication of Applications for Asylum
or Withholding of Deportation and for Employment Authorization, 59 Fed.
Reg. 62295, Dec. 5, 1994; ``Eight Days and Counting: Panel Continues
Reform Bill Mark-Up, Promises End is Near,'' 72 No. 41 Interpreter
Releases 1447, Oct. 23, 1995, at 3.
\24\ Dagoberto Rodriguez, ``Honduras recibira a migrantes de cinco
nacionalidades,'' La Prensa, Jan. 9, 2020.
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Second, although Congress intended the safe third country
provision to be used as a limited exception to the right to
seek asylum enshrined in U.S. law, the Trump administration has
employed the ACAs as a broad bar to any asylum screening by
U.S. officials.\25\ The ACAs deny asylum seekers the
opportunity to claim a ``credible'' fear of persecution or
torture that serves as the standards for initial protection
screening under U.S. law, and shift responsibility for asylum
adjudication onto countries that do not provide full and fair
access to asylum. In decisions to remove individual asylum
seekers, the ACAs apply the higher standard of being ``more
likely than not''--proving a probability greater than 50
percent--that the asylum seeker would face persecution or
torture in the third country.\26\ The ``more likely than not''
would normally only be required at a full hearing before an
immigration judge on withholding of removal or a Convention
Against Torture claim--notably a higher standard than the
``well-founded'' fear for asylum claims at a full hearing. For
asylum seekers without any meaningful connection to the third
country under the ACA or without full information that they
will be removed to the third country, it could be exceedingly
difficult to prove that their fear meets this higher
standard.\27\
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\25\ 8 U.S.C. Sec. 1158(a)(2), titled ``Exceptions,'' lists a
series of limited exceptions to the right to seek asylum in the United
States as established in 8 U.S.C. Sec. 1158(a)(1).
\26\ U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, and U.S. Department of Justice, Executive Office
of Immigration Review, ``Implementing Bilateral and Multilateral Asylum
Cooperative Agreements under the Immigration and Nationality Act,'' 84
Fed. Reg. 63996, Nov. 19, 2019.
\27\ In a brief of amici curiae submitted in support of the
plaintiffs in U.T. v. Barr, the National Citizenship and Immigration
Services Council 119, representing approximately 700 asylum and refugee
officers tasked with implementing the ACAs wrote: ``The stringent `more
likely than not' standard required by the ACA Rule has traditionally
been reserved for use in full-scale removal proceedings administered by
immigration judges. And for good reason. In those proceedings,
applicants are afforded substantial protections, such as a full
hearing, notice of rights, access to counsel, time to prepare, and the
rights to administrative and judicial review--protections that are not
available under the ACA Rule.'' Brief for National Citizenship and
Immigration Services Council as Amici Curiae Supporting Plaintiffs, at
4, U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. 2020).
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The administration's approach distorts the discretion to
grant asylum codified in the law by turning an exception into a
rule that denies any opportunity for asylum in the United
States while purporting to uphold the law's prohibition on
refoulement.\28\ According to the UN Refugee Agency,
``withholding of removal does not provide an adequate
substitute for the asylum process . . . and does not fully
implement [the 1967 Refugee Protocol] Article 33(1)'s
prohibition on refoulement.''\29\ This distortion of the law is
so egregious that a union of approximately 700 U.S. Citizenship
and Immigration Services (USCIS) asylum and refugee officers
filed an amicus brief in a court challenge to the ACAs,
asserting that these agreements force them ``to take actions
that violate their oath to uphold the nation's laws.''\30\
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\28\ Immigration and Nationality Act, 8 U.S.C. Sec. 1158(b)(1)(A).
\29\ Brief for United Nations High Commissioner for Refugees as
Amici Curiae Supporting Plaintiffs, at 21, East Bay Sanctuary Covenant
v. Barr, 964 F.3d 832, 845-47 (9th Cir. 2020).
\30\ Brief for National Citizenship and Immigration Services
Council as Amici Curiae Supporting Plaintiffs, U.T. v. Barr, at 4, Case
no. 1:20-cv-00116 (D.D.C. 2020).
III. Bullying Tactics as Foreign Policy
----------
The White House and DHS pushed through the ACAs with
bullying tactics and haste, dismissing serious objections by
the State Department, Congress, Guatemalan authorities, civil
society, and others. From initial negotiations to entry into
force, the United States concluded the Guatemala ACA with
unusual speed--less than six months--compared to over three
years required to complete the U.S.-Canada Safe Third Country
Agreement.\31\ The Honduras ACA entered into force after less
than nine months of negotiations on March 25, 2020.\32\ During
this intense period, the ACAs dominated U.S. foreign policy in
the region, underscoring President Trump's singular focus on
curbing irregular migration without regard for humanitarian or
other foreign policy interests.
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\31\ Negotiations on the U.S.-Canada STCA began on December 3,
2001. See Statement of J. Kelly Ryan, Deputy Assistant Secretary,
Bureau of Population, Refugees, and Migration, U.S. Department of
State, United States and Canada Safe Third Country Agreement, Hearing
before the House Committee on the Judiciary, Subcommittee on
Immigration, Border Security and Claims, Oct.16, 2002.
\32\ Agreement Between the Government of the United States of
America and the Government of the Republic of Honduras on Cooperation
Regarding the Examination of Protection Claims, 85 Fed. Reg. 25462, May
1, 2020.
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Throughout its tenure, the Trump administration has
aggressively pushed migrants and asylum seekers back to Central
America. It surged U.S. deportations to Guatemala, Honduras,
and El Salvador, even deporting dozens of COVID-positive
individuals to Guatemala and exacerbating the pandemic's
spread.\33\ Under U.S. pressure and with U.S.funding,Mexican
National Guard troops forcibly pushed back to Guatemala
hundreds of Central American migrants who were part of a
caravan headed for the United States in January 2020.\34\ SFRC
Democratic Staff uncovered a reckless and unauthorized DHS
operation in January 2020 to transport Honduran migrants in
Guatemala back to the border with Honduras.\35\ In March 2019,
President Trump disrupted relations with Guatemala, Honduras,
and El Salvador by abruptly cutting off most U.S. foreign aid
to the three countries, halting over $400 million for programs
designed to address poverty, violence, and other drivers of
migration to the United States.\36\ The White House's
suspension of foreign aid instantly weakened the Central
American governments' negotiating positions.
---------------------------------------------------------------------------
\33\ TRAC database, ``Latest Data: Immigration and Customs
Enforcement Removals,'' queried by citizenship and fiscal year, https:/
/trac.syr.edu/phptools/immigration/remove/ (last visited Oct. 27,
2020); Press Release, Senator Bob Menendez, ``Menendez, Durbin Press
Trump Administration on Deportation of Covid-19 Positive Migrants,''
May 2, 2020, https://bit.ly/3z9eVha.
\34\ Kevin Sieff, ``U.S.-bound Migrants Clash with Mexican Forces
at Guatemala Border,'' The Washington Post, Jan. 20, 2020.
\35\ ``DHS Run Amok? A Reckless Overseas Operation, Violations, and
Lies,'' Democratic Staff Report, Senate Committee on Foreign Relations,
Oct. 13, 2020.
\36\ ``U.S. ending aid to El Salvador, Guatemala, and Honduras over
migrants,'' Reuters, Mar. 30, 2019; see also ``U.S. Strategy for
Engagement in Central America,'' Congressional Research Service, June
30, 2020, https://fas.org/sgp/crs/row/IF10371.pdf.
---------------------------------------------------------------------------
According to the DHS timeline of ACA negotiations with the
Government of Guatemala, a senior U.S. government delegation
``with Executive Leadership from DHS and DOS'' began
negotiations with Guatemalan government officials during a trip
to Guatemala on June 12-13, 2019.\37\ Six weeks later on July
26, while the State Department was still gathering basic
information on the country's asylum capacity and designing
programs to help strengthen it, DHS' Acting Secretary and
Guatemala's Interior Minister signed the ACA in a ceremony at
the White House. Guatemala remained woefully unprepared when
ACA implementation began less than four months after the
agreement was signed, with the first transfer flight arriving
on November 21, 2019.\38\
---------------------------------------------------------------------------
\37\ ``Timeline of DHS Engagement with Government of Guatemala re:
Asylum Agreement, Asylum Processes and Procedures,'' Doc. 85, U.T. v.
Barr, Case no. 1:20-cv-00116-EGS (D.D.C. Mar. 27, 2020).
\38\ See Annex 4 (Document 2): Responses from Assistant Secretary
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak,
U.S. Department of State, to Questions for the Record Submitted by
Ranking Member Bob Menendez, Senate Committee on Foreign Relations,
Sept. 25, 2019; see also Geneva Sands, Priscilla Alvarez & Michelle
Mendoza, ``Trump Administration Begins Deporting Asylum Seekers to
Guatemala,'' CNN, Nov. 21, 2020.
---------------------------------------------------------------------------
U.S. negotiations with the government of Guatemala set a
precedent that facilitated similarly hasty negotiations with
Honduras and El Salvador. Both the Honduras and El Salvador
agreements were signed in September 2019 after only two months
of negotiations. When SFRC Democratic Staff traveled to the
region in October 2019 shortly after the ACAs were signed,
officials in El Salvador's office of the Director General of
Migration and Immigration said they had not seen the text of
the agreement. These two agreements have yet to be implemented.
Internal Government Objections
As negotiations began, on June 12, 2019 the U.S. Embassy in
Guatemala City transmitted to Washington a diplomatic cable
containing its assessment of the Guatemalan asylum system.
Although the assessment approved by the U.S. Ambassador did not
expressly object to the Guatemala ACA, it detailed a number of
concerns that would preclude the agreement from meeting the
law's requirements to uphold the principle of non-refoulement
and to provide ``full and fair'' access to asylum. For example,
the cable reported concerns that Guatemala ``does not provide
sufficient safeguards against refoulement,'' and provided
detailed data demonstrating that Guatemala was ``among the most
dangerous countries in the world.''\39\
---------------------------------------------------------------------------
\39\ Annex 3 (Document 3): U.S. Embassy Guatemala, Diplomatic Cable
19 Guatemala 536, ``Assessment of the Guatemalan Asylum System,'' June
12, 2019.
---------------------------------------------------------------------------
Within the State Department, concerns about the agreement
with Guatemala grew so serious that some of its lawyers
resorted to the rarely used ``dissent channel'' to ensure their
concerns reached the highest levels.\40\ Secretary Pompeo
reportedly voiced last-ditch objections to the agreement two
hours before the July 26, 2019 Oval Office signing ceremony,
telling President Trump the agreement was flawed and a mistake,
and arguing the Guatemalan government would not be able to
carry out its terms. He lost the argument to DHS Acting
Secretary Kevin McAleenan, however, who persuaded the President
that the agreement would stem the flow of migrants to the
United States.\41\
---------------------------------------------------------------------------
\40\ ``Facing the world blindfolded: The dereliction of American
diplomacy,'' The Economist, Aug. 13, 2020.
\41\ Michael D. Shear & Zolan Kanno-Youngs, ``Trump Officials
Argued Over Asylum Deal With Guatemala. Now Both Countries Must Make It
Work,'' The New York Times, Aug. 2, 2019.
---------------------------------------------------------------------------
In Guatemala, both candidates heading into the nation's
presidential run-off election and the Catholic Church
explicitly opposed the agreement.\42\ Guatemala's human rights
ombudsman, Jordan Rodas, and other prominent Guatemalans
petitioned the Constitutional Court to block the agreement,
arguing that ``Guatemala utterly lacks the institutions able to
offer migrants the minimal conditions with respect to human
rights.''\43\ Guatemala's Constitutional Court issued an
injunction on July 14, 2019, instructing the government not to
enter into an ACA without approval from the Guatemalan
Congress.\44\
---------------------------------------------------------------------------
\42\ Matthew Borges, ``Guatemala high court blocks agreement to
have migrants apply for asylum there rather than in US,'' Jurist, July
16, 2019.
\43\ Id.
\44\ Id.
---------------------------------------------------------------------------
High-Level Coercion
President Trump then intensified his coercive tactics,
tweeting on July 23 that Guatemala ``has decided to break the
deal they had with us on signing a necessary Safe Third [sic]
Agreement . . . Now we are looking at the ``BAN,'' . . .
Tariffs, Remittance Fees, or all of the above.''\45\ Then-
president Jimmy Morales approved the agreement and his Interior
Minister Enrique Degenhart signed the ACA on July 26, 2019.\46\
The Guatemalan government released a statement explaining that
the agreement was signed ``with the objective of preventing
serious economic and social repercussions.''\47\
---------------------------------------------------------------------------
\45\ Donald Trump, @realDonaldTrump, ``Guatemala, which has been
forming Caravans and sending large numbers of people, some with
criminal records, to the United States, has decided to break the deal
they had with us on signing a necessary Safe Third Agreement. We were
ready to go. Now we are looking at the `BAN,' . . .,'' July 23, 2019,
https://bit.ly/3cppxyG; see also Donald Trump, @realDonaldTrump, `` . .
. . Tariffs, Remittance Fees, or all of the above. Guatemala has not
been good. Big U.S. taxpayer dollars going to them was cut off by me 9
months ago,'' July 23, 2019, https://bit.ly/3zbpiRJ.
\46\ Urias Gamaro, ``Degenhart: Guatemala dara refugio a
salvadorenos y hondurenos para frenar viajes a EE. UU.,'' Prensa Libre,
Aug. 15, 2019.
\47\ Gobierno Guatemala, @GuatemalaGob, ``Guatemala y Estados
Unidos suscriben importante acuerdo de cooperaci,'' July 26, 2019,
https://bit.ly/3fXLdEc.
---------------------------------------------------------------------------
The lesson was clear for the leaders of Honduras and El
Salvador: sign the ACAs or face bullying directly from the U.S.
President. Honduran foreign ministry officials expressed
misgivings that their government was bowing to pressure from
Washington.\48\ Nevertheless, two months later, the foreign
ministers of El Salvador and Honduras each signed ACAs with the
United States that are modeled on the Guatemala ACA on
September 20, 2019 and September 25, 2019, respectively.\49\
---------------------------------------------------------------------------
\48\ David C. Adams, ``Honduras and US close to signing new
immigration agreements,'' Univision, Sept. 12, 2019.
\49\ Colleen Long & Astrid Galvan, ``US, El Salvador Sign Asylum
Deal, Details to be Worked out,'' Associated Press, Sept. 20, 2019; see
also U.S. Customs and Border Protection, Fact Sheet: DHS Agreements
with Guatemala, Honduras, and El Salvador, Nov. 7, 2019, https://
bit.ly/3v4Wtmp.
IV. Trump Administration Secrecy
and Obstruction
----------
Despite overtly pressuring foreign countries to enter into
the agreements and touting them publicly, the Trump
administration refused to disclose details of the ACAs to the
public and Congress. Without justification, the Trump
administration repeatedly refused congressional requests to
review the ACAs and associated documents, including legal
determinations allowing the agreements' entry into force,
implementation plans, and other annexes. Since their inception
in mid-2019, Senator Menendez and dozens of other members of
Congress have expressed serious concerns about the ACAs and
requested relevant documents related to the agreements and
their implementation. Senator Menendez and SFRC Democratic
Staff have repeatedly requested relevant documents for over a
year. The Trump administration's complete refusal to comply
with these requests has indicated a concerted effort to
maximize secrecy and obstruct any accountability related to
implementation of these agreements. Even after many of the
primary documents were disclosed through litigation, the
Departments of State and Homeland Security continued to refuse
requests to provide them directly to Congress.\50\ The Trump
administration has continued to refuse to provide primary
documents associated with the agreements, including legal
determinations allowing the agreements' entry into force,
implementation plans, and other annexes. To this day, the
administration has refused to even provide a log of such
documents so that the public and Congress have clearer
knowledge of their existence and the full extent of the legal
architecture the administration put into place to subvert the
rights of asylum seekers in the United States.
---------------------------------------------------------------------------
\50\ See Annex 3 for copies of key documents related to the U.S.-
Guatemala Asylum Cooperative Agreement.
---------------------------------------------------------------------------
At a SFRC hearing on U.S. Policy in Mexico and Central
America in September 2019, in response to a direct request from
Senator Menendez, the Acting Assistant Secretary of State for
Western Hemisphere Affairs publicly committed to provide copies
of ``all the migration-related instruments, binding or
nonbinding, annexes, appendices, implementation plans,
guidance, and other related documents that the administration
has signed, agreed to, or otherwise joined'' regarding Central
America.\51\ Following the hearing, Senator Menendez submitted
written questions again requesting all relevant ACA documents.
The State Department did not respond to these questions until
three months later, in late December 2019. The Department's
responses were largely inadequate--failing to comply with the
request for documents and revealing a disturbing lack of
knowledge about the asylum systems of Guatemala, Honduras, and
El Salvador. For example, in responses submitted long after all
three ACAs had been signed and a month after implementation had
begun in Guatemala, the State Department admitted it was still
``seeking specific information'' about the budgets and staffing
of each government agency responsible for processing asylum
claims and could not ``yet provide an accurate estimation of
Guatemala's asylum processing capacity.''\52\ The State
Department's responses were so inadequate that SFRC Democratic
Staff took the highly unusual step of returning the questions
to the State Department twice--in January 2020 and again in
February 2020, offering second and third opportunities to
provide substantive information. The official responses from
the Trump administration are included in the annex of this
report and have not previously been made available for public
review.\53\
---------------------------------------------------------------------------
\51\ U.S. Policy in Mexico and Central America: Ensuring Effective
Policies to Address the Crisis at the Border, Hearing before the Senate
Committee on Foreign Relations, Sept. 25, 2019.
\52\ See Annex 4 (Document 2): Responses from Assistant Secretary
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak,
U.S. Department of State (Dec. 23, 2019), to Questions for the Record
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign
Relations, Sept. 25, 2019.
\53\ See Annex 4.
---------------------------------------------------------------------------
With growing concern after implementation of the Guatemala
ACA began, Senator Menendez and 20 other Democratic senators
wrote to the leadership of the Departments of State and
Homeland Security in early February 2020 to request information
and documents related to the ACAs.\54\ The State Department
failed to respond to this request at all, and DHS predictably
did not produce the requested documentation in its deficient
response. After Senator Menendez sent two more letters
requesting documents pursuant to the ACAs--to the Assistant
Secretary of State for Legislative Affairs in April 2020 and to
Secretary Pompeo in May 2020--the State Department still
refused.\55\ In sum, the State Department and DHS have refused
five formal requests by Senator Menendez for documents related
to the ACAs, as well as dozens of follow up requests from SFRC
Democratic Staff.
---------------------------------------------------------------------------
\54\ See Annex 5 (Document 1): Letter from Senators Menendez,
Warren, et al. to Secretary of State Michael Pompeo, Attorney General
William Barr, and Acting Secretary of Homeland Security Chad Wolf, Feb.
5, 2020.
\55\ See Annex 5 (Document 3): Letter from Senator Menendez to
Assistant Secretary of State for Legislative Affairs Mary E. Taylor,
Apr. 27, 2020; (Document 4): Letter from Senator Menendez to Secretary
of State Michael Pompeo, May 27, 2020.
---------------------------------------------------------------------------
Only in February 2020 did the State Department provide SFRC
Democratic Staff with limited substantive information about the
ACAs in writing. This information raised new concerns about the
agreements. For example, the State Department wrote in February
2020--nearly 6 months after the ACA was signed--that: ``The
Embassy asked but was unable to obtain a[n asylum] capacity
estimate from the government [of El Salvador].''\56\ The fact
that the administration refused to be transparent with Congress
has only further fueled distrust in the ACAs' consistency with
U.S. laws and foreign policy interests.
---------------------------------------------------------------------------
\56\ Annex 4 (Document 3): Responses from Assistant Secretary
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak,
U.S. Department of State (Feb. 14, 2020), to Questions for the Record
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign
Relations, Sept. 25, 2019.
V. Protection Conditions in Central
America's Northern Triangle
----------
There is broad acknowledgement, even within the Trump
administration, that Guatemala, Honduras, and El Salvador lack
institutional capacity to provide protection to asylum seekers
transferred under the ACAs. Although these governments have
indicated a willingness to do so, their leaders readily admit
that their capacity to protect refugees and asylum seekers is
seriously deficient. Since ACA implementation began one year
ago, Guatemala's lack of capacity is confirmed by the numbers:
of the 945 asylum seekers whom the United States transferred to
Guatemala, not one has been granted asylum.\57\
---------------------------------------------------------------------------
\57\ United Nations High Commissioner for Refugees Guatemala
meeting with SFRC Democratic Staff, Oct. 21, 2020.
---------------------------------------------------------------------------
Guatemala, Honduras, and El Salvador each joined the Marco
Integral Regional para la Proteccion y Soluciones (MIRPS, the
Comprehensive Regional Protection and Solutions Framework), a
regional, state-led initiative supported through the UN High
Commissioner for Refugees and Organization of American States
that aims to implement the Global Compact on Refugees adopted
in 2017.\58\ However, their asylum laws and procedures remain
nascent while their people suffer high levels of violence,
human rights abuses, and displacement. As Guatemala's then
president-elect, Alejandro Giammattei said in August 2019, just
after the outgoing government signed the ACA, ``I do not think
Guatemala fulfills the requirements to be a third safe country.
That definition doesn't fit us. If we do not have the capacity
for our own people, just imagine other people.''\59\ Honduras'
autonomous National Human Rights Commissioner asserted that
Honduras lacks the capacity and resources necessary to provide
``dignified treatment'' to individuals transferred under the
ACA.\60\ In response to the question of whether El Salvador was
ready to receive asylum seekers through the ACA, President
Bukele said in December 2019, ``[w]ell, not right now. We don't
have asylum capacities, but we can build them.''\61\
---------------------------------------------------------------------------
\58\ United Nations High Commissioner for Refugees, ``About the
MIRPS,'' Global Compact on Refugees Digital Platform, Oct. 8, 2020,
https://globalcompactrefugees.org/mirps-en/about-mirps.
\59\ Sonia Perez D., ``President-elect Says Guatemala Can't do
Migrant Deal with US,'' AP, Aug. 14, 2019.
\60\ ``Acuerdo con EEUU debe ser Aprobado por el Congreso: Roberto
Herrera Caceres,'' La Prensa (Honduras), Nov. 12, 2019.
\61\ Sharon Alfonsi, ``Our Whole Economy is in Shatters:' El
Salvador's President Nayib Bukele on the Problems Facing his Country,''
60 Minutes, Dec. 19, 2019.
---------------------------------------------------------------------------
The State Department acknowledged the need to build these
countries' asylum capacities and continued to seek details
about their asylum staffing and resources even as DHS began ACA
implementation.\62\ The State Department's Bureau of
Population, Refugees, and Migration poured unprecedented levels
of funding into building protection capacity, including asylum
capacity, in Guatemala, El Salvador, and Honduras soon after
the ACAs were signed.\63\ DHS Acting Secretary McAleenan
announced the State Department's $47 million contribution to
the UN Refugee Agency (UNHCR) and International Organization
for Migration (IOM) to help strengthen Guatemala's asylum
capacity on September 23, 2019.\64\In response to a written
question from Senator Menendez, the State Department admitted
in December 2019--after implementation of the Guatemala ACA had
begun-- that: ``The United States government is actively
working with our partners and the Government of Guatemala to
better understand its current capacities.''\65\
---------------------------------------------------------------------------
\62\ Statement of Michael J. Kozak, Acting Assistant Secretary of
State, Bureau of Western Hemisphere Affairs, U.S. Department of State,
U.S. Policy in Mexico and Central America: Ensuring Effective Policies
to Address the Crisis at the Border, hearing before the Senate
Committee on Foreign Relations, Sept. 25, 2019.
\63\ U.S. Department of State, Bureau of Population, Refugees, and
Migration, ``Fiscal Year 2019 Summary of Major Activities: Year in
Review,'' June 2020, https://bit.ly/3cqPaiB.
\64\ ``Acting Secretary McAleenan's Prepared Remarks to the Council
of Foreign Relations,'' U.S. Department of Homeland Security, Sept. 23,
2019, https://bit.ly/3fVD8Qp.
\65\ See Annex 4 (Document 2): Responses from Assistant Secretary
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak,
U.S. Department of State (Dec. 23, 2019), to Questions for the Record
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign
Relations, Sept. 25, 2019.
Nascent Institutional Capacity
U.S. officials were fully aware that the asylum systems in
ACA countries ranged from extremely weak to non-existent. In
Guatemala, the most advanced of the three countries in terms of
asylum capacity, the U.S. Embassy's June 2019 assessment of
Guatemala's asylum system noted that the Comision Nacional para
Refugiados (CONARE, the National Commission for Refugees) had
no dedicated full-time staff, that ``asylum is only one of
their many portfolios,'' and that these staff lacked sufficient
training. The assessment stated that some provisions of
Guatemala's Migration Code ``may not be fully compatible with
the principles of non-refoulement,'' that it ``does not clearly
state a prohibition on returning individuals who may face
torture,'' and that ``documentation issued to refugees lacks
recognition by many public and private institutions.'' SFRC
Democratic Staff find that these statements presented red flags
regarding the ACA's compliance with the safe third country
provision in U.S. law. The embassy further assessed that,
``[h]istorically, Guatemala has had capacity to process about
100-150 cases per year,'' or roughly 8-12 cases per month.\66\
This number is alarmingly below the expected 1,620 individual
monthly transfers described in the agreement's initial
implementation plan or the 945 asylum-seekers actually
transferred to Guatemala since the ACA became operational over
one year ago.\67\
---------------------------------------------------------------------------
\66\ Annex 3 (Document 3): U.S. Embassy Guatemala, Diplomatic Cable
19 Guatemala 536, ``Assessment of the Guatemalan Asylum System,'' June
12, 2019.
\67\ ``Agreement Between the Government of the United States of
America and the Government of the Republic of Guatemala on Cooperation
Regarding the Examination of Protection Claims, Annex 1: Initial
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85,
U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. Mar. 27, 2020).
---------------------------------------------------------------------------
After Senator Menendez returned the State Department's
incomplete responses to his written questions for revision, in
July 2020 the State Department submitted evidence to SFRC
showing that asylum capacity in Honduras and El Salvador is far
weaker than in Guatemala. Neither Honduras nor El Salvador has
any full-time staff dedicated to refugee or asylum
determinations, according to the State Department. In 2019,
Honduras adjudicated only 46 asylum claims and El Salvador
adjudicated none.\68\ The State Department's 2019 Country
Reports on Human Rights Practices in Honduras stated: ``The
government has a nascent system to provide protection to
refugees, the effectiveness of which had not been fully proven
by year's end.''\69\ The State Department's July 2020 responses
to SFRC Democratic Staff noted that ``UNHCR estimates El
Salvador can adjudicate five cases per year with its current
personnel and resources.''\70\
---------------------------------------------------------------------------
\68\ Annex 4 (Document 3): Responses from Assistant Secretary
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak,
U.S. Department of State (Feb. 14, 2020), to Questions for the Record
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign
Relations, Sept. 25, 2019.
\69\ Bureau of Democracy, Human Rights, and Labor, ``2019 Country
Reports on Human Rights Practices: Honduras,'' U.S. Department of
State, https://bit.ly/3z4oZIp.
\70\ Annex 4 (Document 3): Responses from Assistant Secretary
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak,
U.S. Department of State (Feb. 14, 2020), to Questions for the Record
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign
Relations, Sept. 25, 2019.
Grave Dangers on the Ground
Beyond their limited institutional capacity, Guatemala,
Honduras, and El Salvador are plagued by such high levels of
violence, pervasive corruption, and widespread human rights
abuses that they cannot reasonably be expected to provide
conditions of safety or adequate protection to refugees and
asylum seekers. The U.S. Embassy's asylum system assessment
described Guatemala as ``among the most dangerous countries in
the world,'' citing a homicide rate approaching 22 per 100,000
inhabitants ``driven by narco-trafficking activity, gang-
related violence, a heavily-armed population, and police/
judicial system unable to hold many criminals
accountable.''\71\ The State Department's 2019 Country Reports
on Human Rights Practices in Guatemala noted that ``[v]iolence
against women, including sexual and domestic violence, remained
widespread and serious,'' and also identified violence and
discrimination against lesbian, gay, bisexual, transgender and
intersex (LGBTI) individuals as a major concern.\72\ In August
2020, a transgender asylum seeker in Guatemala was killed after
fleeing gender-based violence and persecution by gangs in El
Salvador.\73\ As a result of these dangerous conditions, by the
end of 2019 more than half a million Guatemalans had fled their
homes, including over 142,000 refugees and asylum seekers and
over 200,000 internally displaced persons.\74\
---------------------------------------------------------------------------
\71\ Annex 3 (Document 3): U.S. Embassy Guatemala, Diplomatic Cable
19 Guatemala 536, ``Assessment of the Guatemalan Asylum System,'' June
12, 2019.
\72\ U.S. Department of State, Bureau of Democracy, Human Rights,
and Labor, ``2019 Country Reports on Human Rights Practices:
Guatemala,'' https://bit.ly/2RtYSJI.
\73\ ``Death of transgender asylum seeker in Guatemala highlights
increased risks and protection needs for LGBTI community,'' United
Nations High Commissioner for Refugees (UNHCR), Aug. 6, 2020, https://
bit.ly/3z2kC0e.
\74\ ``Global Trends: Forced Displacement in 2019,'' United Nations
High Commissioner for Refugees (UNHCR), June 18, 2020, https://
www.unhcr.org/globaltrends2019/; see also ``GRID 2020: Global Report on
Internal Displacement,'' Internal Displacement Monitoring Centre, Apr.
2020.
---------------------------------------------------------------------------
Conditions in Honduras and El Salvador are even more
dangerous, with gang violence persisting throughout both
countries, the highest rates of femicide in the entire Western
Hemisphere, and serious violence and threats against LGBTI
persons, according to the State Department's 2019 Country
Reports on Human Rights Practices.\75\ Honduras' murder rate
increased in 2019 to 41.2 homicides per 100,000 individuals and
El Salvador had 36 homicides per 100,000 people.\76\ In El
Salvador, according to a 2020 U.S. Department of State Overseas
Security Advisory Council (OSAC) report, ``[v]iolent, well-
armed street gangs . . . concentrate on street-level drug
sales, extortion, arms trafficking, murder for hire,
carjacking, and aggravated street crime.''\77\ By the end of
2019, violent conditions in Honduras had compelled over 247,000
Hondurans to flee internally and nearly 150,000 Hondurans to
flee the country entirely as refugees and asylum seekers. At
the same time, over 450,000 Salvadorans were internally
displaced by the end of 2019, and nearly 180,000 Salvadorans
sought protection abroad as refugees and asylum seekers.\78\
Taken together, the nearly 470,000 refugees and asylum seekers
from Guatemala, Honduras, and El Salvador represent a six-fold
increase over the past five years.\79\
---------------------------------------------------------------------------
\75\ ``Latin America, the Caribbean and Spain (19 countries):
Femicide or feminicide, most recent data available (In absolute numbers
and rates per 100.000 women),'' Gender Equality Observatory for Latin
America and the Caribbean, https://bit.ly/3z2l4LY.
\76\ Parker Asmann & Eimhin O'Reilly, ``InSight Crime's 2019
homicide round-up,'' InSight Crime, Jan. 28, 2020.
\77\ ``El Salvador 2020 crime & safety report,'' U.S. Department of
State Overseas Security Advisory Council, Mar. 31, 2020.
\78\ ``GRID 2020: Global Report on Internal Displacement,''
Internal Displacement Monitoring Centre, Apr. 2020; see also ``Global
Trends: Forced Displacement in 2019,'' United Nations High Commissioner
for Refugees (UNHCR), June 18, 2020, https://www.unhcr.org/
globaltrends2019/.
\79\ ``UNHCR Global Report 2019: The Americas,'' United Nations
High Commissioner for Refugees (UNHCR), https://bit.ly/3uZYFvF.
International Condemnation
In light of these dangerous conditions and weak
institutional capacities, international condemnation of the
ACAs has been swift and unrelenting. While ACA negotiations
were underway on July 23, 2019, the Inter-American Commission
on Human Rights (IACHR) expressed concerns about U.S. policies
toward Central American migrants, with specific attention to
the ACAs, stating:
The acts of violence and human rights violations that
the IACHR has monitored . . . regarding Guatemala show
that these countries would not comply with conditions
necessary to offer the security guarantees that a safe
third country must guarantee. This agreement could
increase the conditions of vulnerability for migrants
and refugees and could expose them to greater risks
than those that led them to move originally.\80\
---------------------------------------------------------------------------
\80\ ``IACHR Expresses Deep Concern about the Situation of Migrants
and Refugees in the United States, Mexico, and Central America,''
Inter-American Commission on Human Rights, July 23, 2020, https://
bit.ly/2S9xWzy.
As soon as the Guatemala ACA was published in the Federal
Register, the Office of the UN High Commissioner for Refugees
(UNHCR) issued a statement expressing its ``serious concerns''
and calling the ACA ``an approach at variance with
international law that could result in the transfer of highly
vulnerable individuals to countries where they may face life-
threatening dangers.'' UNHCR described the asylum systems of
Guatemala, Honduras, and El Salvador as ``still very
nascent.''\81\
---------------------------------------------------------------------------
\81\ ``Statement on new U.S. asylum policy,'' UNHCR, Nov. 19, 2019,
https://bit.ly/3zima6H.
---------------------------------------------------------------------------
Non-governmental human rights advocates have condemned the
ACAs even more forcefully. Amnesty International called them ``
`unsafe third country' agreements because that is in fact what
they are.''\82\ The American Immigration Council said the
Guatemala ACA ``will place thousands of asylum seekers at risk
in a country ill-prepared to process a high volume of
applications for protection and with safety problems of its
own.''\83\ Refugees International stated it ``sees the ACAs
not, as the [Federal Register publication] suggests, an attempt
to `share the burden' of protection between countries, but as
an effort by the United States to shift the responsibility of
protection to those countries less able to bare it.''\84\
Physicians for Human Rights warned that the Guatemala ACA
``violates the provisions of U.S. law which prohibit `safe
third country' relocation of asylum seekers unless that third
country can ensure their protection from persecution and
guarantee a full and fair asylum process.''\85\
---------------------------------------------------------------------------
\82\ Charanya Krishnaswami, Advocacy Director for the Americas at
Amnesty International USA, Interview with Noah Lanard, Mother Jones,
Feb. 28, 2020.
\83\ Royce Murray, ``Why a Safe Third Country Agreement with
Guatemala is Unsafe and Unworkable,'' Immigration Impact, July 29,
2019, https://bit.ly/2S8vbOX.
\84\ Andrew Davidson & Lauren Alder Reid, ``Refugees International
Opposes Asylum Cooperative Agreements with Guatemala, El Salvador, and
Honduras,'' Refugees International, Dec. 23, 2019.
\85\ ``U.S. government's new `safe third country' deal with
Guatemala puts asylum seekers at grave risk,'' Physicians for Human
Rights, Nov. 20, 2019.
VI. Implementation in Violation of Human Rights
----------
To fulfill the safe third country provision under U.S. law
and enable ACA implementation, the Attorney General and DHS
Secretary each had to make a determination that transferred
migrants would not be refouled and that the country of transfer
provides ``full and fair'' access to asylum.\86\ These
determinations would ensure that the United States fulfills its
obligations under international laws to uphold the principle of
non-refoulement as well as the right to seek asylum. Given the
highly dangerous conditions in Guatemala, Honduras, and El
Salvador, and the fact that their asylum systems are nascent at
best, Senator Menendez and SFRC Democratic Staff sought to
understand how Attorney General William Barr and DHS Acting
Secretary McAleenan determined that the law's requirements had
been met. As documents obtained by SFRC Democratic Staff show,
both officials signed memoranda attesting, ``I find that the
Guatemalan refugee protection system satisfies the `access to a
full and fair procedure' requirement of INA section 208
(a)(2)(A).''\87\ Although the Honduras ACA took effect on March
25, 2020 and the El Salvador ACA took effect on December 15,
2020, and despite repeated requests by Senator Menendez and
SFRC Democratic Staff, the Trump administration has continued
to hide the determinations by the Attorney General and DHS
Secretary that enabled that agreements' entry into force.
---------------------------------------------------------------------------
\86\ U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, and U.S. Department of Justice, Executive Office
of Immigration Review, Implementing Bilateral and Multilateral Asylum
Cooperative Agreements under the Immigration and Nationality Act, 84
Fed. Reg. 63997, Nov. 19, 2019.
\87\ Annex 3 (Document 1): Memorandum from the Attorney General re
``Whether Guatemala's Refugee Protection Laws and Procedures Satisfy
the ``Access to a Full and Fair Procedure'' Requirements of Section
208(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C.
Sec. 1158(a)(2)(A),'' Nov. 7, 2019, at 2; Annex 3 (Document 2):
Memorandum from the Secretary re ``Whether Guatemala's Refugee
Protection Laws and Procedures Satisfy the ``Access to a Full and Fair
Procedure'' Requirements of Section 208(a)(2)(A) of the Immigration and
Nationality Act, 8 U.S.C. Sec. 1158(a)(2)(A),'' Oct. 16, 2019, at 2.
Determinations Based on Partial Truths
The determinations for the Guatemala ACA relied entirely on
laws and procedures that exist only on paper, never grappling
with inconvenient facts on the ground demonstrating that
Guatemala is largely unsafe for asylum seekers. The Department
of Justice memo drafted by Gene Hamilton, counselor to the
Attorney General, and the corresponding DHS memo, relied on
responses to detailed questionnaire, that the Government of
Guatemala produced with coaching by Trump administration
officials.\88\ The memos ignored significant concerns about
gaps in Guatemalan domestic law, minimal operational capacity,
and dangerous country conditions that the U.S. Embassy clearly
identified. The memos also failed to consider whether processes
outlined in existing laws are routinely implemented. SFRC
Democratic Staff's analysis finds that:
---------------------------------------------------------------------------
\88\ See Annex 3 (Document 1): Memorandum from the Attorney General
re ``Whether Guatemala's Refugee Protection Laws and Procedures Satisfy
the ``Access to a Full and Fair Procedure'' Requirements of Section
208(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C.
Sec. 1158(a)(2)(A),'' Nov. 7, 2019, at 2; see also Annex 3 (Document
2): Memorandum from the Secretary re ``Whether Guatemala's Refugee
Protection Laws and Procedures Satisfy the ``Access to a Full and Fair
Procedure'' Requirements of Section 208(a)(2)(A) of the Immigration and
Nationality Act, 8 U.S.C. Sec. 1158(a)(2)(A),'' Oct. 16, 2019, at 2;
see also Agreement Between the Government of the United States of
America and the Government of the Republic of Guatemala on Cooperation
Regarding the Examination of Protection Claims; Questions Regarding
Access to Full and Fair Procedures, Doc. 85, U.T. v. Barr, Case no.
1:20-cv-00116 (D.D.C. Mar. 27, 2020).
The Attorney General and DHS Acting Secretary's
determinations cite Article 46 of Guatemala's Migration
Code as fulfilling its non-refoulement obligations
under the Refugee Convention and Protocol, but fail to
consider the gaps identified in U.S. Embassy's
---------------------------------------------------------------------------
assessment related to non-refoulement and torture;
Both determinations cite Article 12 of Guatemala's
Migration Code as guaranteeing that all migrants are
not to be subject to ``any form of violence,'' yet fail
to acknowledge the extreme levels of violence faced by
citizens and non-citizens across the country;
Neither determination considers whether violent gangs
committing persecution in Honduras and El Salvador
would threaten asylum seekers transferred to Guatemala;
Neither determination discusses the deadly risks faced by
women and LGBTI individuals in Guatemala; and,
Neither determination considers whether refugee protection
would suffer if the volume or speed of transfers far
exceeds Guatemala's capacity to process asylum claims
and provide reception services, as envisioned in the
implementation plan.
Degrading Conditions During Transfer
Within days of DOJ and DHS issuing their determinations,
DHS proceeded with implementation despite clear risks to
individuals' safety and with little consideration for
overwhelming Guatemala's capacity. The initial implementation
plan agreed to between the Trump administration and Guatemalan
authorities to transfer asylum seekers from the United States
to Guatemala limited transfers to adult nationals of Honduras
and El Salvador.\89\ Shortly after transfer flights began,
however, DHS began sending families with children in apparent
violation of the agreed implementation plan. The agreement
exempts unaccompanied children and the implementation plan
makes exceptions for persons with special needs and certain
health conditions.\90\ However, other highly vulnerable asylum
seekers, such as LGBTI individuals and survivors of gender-
based violence, were transferred under the Guatemala ACA
because neither the text of the agreement, the implementation
plan, nor the guidance to DHS asylum officers referring
individuals for ACA transfers provides such humanitarian
exceptions.\91\
---------------------------------------------------------------------------
\89\ ``Agreement Between the Government of the United States of
America and the Government of the Republic of Guatemala on Cooperation
Regarding the Examination of Protection Claims, Annex 1: Initial
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85,
U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. Mar. 27, 2020).
\90\ Agreement Between the Government of the United States of
America and the Government of the Republic of Guatemala Concerning
Cooperation Regarding the Examination of Protection Claims, 84 Fed.
Reg. 64095, Nov. 20, 2019.
\91\ U.S. Citizenship and Immigration Services, US-Guatemala Asylum
Cooperation Agreement (ACA) Threshold Screening Guidance for Asylum
Officers and Asylum Office Staff, Nov. 19, 2019.
---------------------------------------------------------------------------
Additionally, ACA transfers arrive at the same reception
center at the airport just outside Guatemala City that receive
deportees from the United States, including convicted
criminals.\92\ When ACA implementation began in late November
2019, this reception center was still under construction
following an infusion of $1 million from USAID.\93\
---------------------------------------------------------------------------
\92\ ``Agreement Between the Government of the United States of
America and the Government of the Republic of Guatemala on Cooperation
Regarding the Examination of Protection Claims, Annex 1: Initial
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85,
U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. Mar. 27, 2020)
\93\ International Organization for Migration (IOM) Central America
Meeting with Senate Foreign Relations Committee Democratic Staff, Oct.
16, 2020.
---------------------------------------------------------------------------
The Trump administration's rush to implement the ACA
exposed both U.S. officials' cruel treatment of asylum seekers
and Guatemala's lack of institutional capacity and experience
in refugee protection. Migrants transferred under the ACA
described abusive conditions and degrading treatment while in
the custody of U.S. Customs and Border Patrol (CBP), including
being denied medical care and children being separated from
their parents.\94\ CBP agents grievously misinformed asylum
seekers, telling them the United States ``wasn't giving asylum
anymore,'' and denied them meaningful access to an
attorney.\95\ Of those who received accurate information, many
without English language skills or legal counsel misunderstood
and believed they would be able to apply for U.S. asylum from
Guatemala.\96\ ACA transferees were shackled and transported on
the same flights as criminal deportees.\97\
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\94\ Maya Srikrishnan, ``Border Report: Complaints Detail Abuses
Against Asylum-Seekers in U.S. Custody,'' Voices of San Diego, Feb. 24,
2020, https://bit.ly/3ir7DzA.
\95\ Cora Currier, ``Redirecting Asylum-Seekers from U.S. to
Guatemala was a cruel farce, report finds,'' The Intercept, May 19,
2020.
\96\ Rachel Schmidtke, Yael Schacher, & Ariana Sawyer,
``Deportation with a Layover: Failure of protection under the U.S.-
Guatemala Asylum Cooperative Agreement,'' Refugees International, May
19, 2020, https://bit.ly/353gjE0.
\97\ Nick Miroff, ``ICE Air: Shackled deportees, air freshener and
cheers. America's one-way trip out,'' The Washington Post, Aug. 10,
2019; see also Reynaldo Leas Jr., ``Asylum-Seekers Reaching U.S. Border
are Being Flown to Guatemala,'' NPR, Mar. 11, 2020.
Coercion and Fear in Guatemala
Once in Guatemala, many ACA transferees, including small
children, waited hours on the tarmac without adequate food,
water, or medical assistance.\98\ At the airport, transferees
were required to tell immigration officials whether they
intended to apply for asylum in Guatemala, seek assistance from
the International Organization for Migration to return to their
country of origin, or depart on their own.\99\ After their
initial decision, transferees only had 72 hours to change their
status. This arbitrary 72-hour deadline, imposed by Guatemalan
authorities, forced transferred individuals and families to
make major decisions about their future under intense time
pressure and without sufficient information. Guatemalan
officials initially refused to allow NGOs to provide
information or assist migrants at the reception center.\100\
The Guatemalan government provides no money to civil society
organizations to care for ACA transferees after their
arrival.\101\
---------------------------------------------------------------------------
\98\ Rachel Schmidtke, Yael Schacher, & Ariana Sawyer,
``Deportation with a Layover: Failure of protection under the U.S.-
Guatemala Asylum Cooperative Agreement,'' Refugees International, May
19, 2020, https://bit.ly/3w3peRL.
\99\ ``Agreement Between the Government of the United States of
America and the Government of the Republic of Guatemala on Cooperation
Regarding the Examination of Protection Claims, Annex 1: Initial
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85,
U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. Mar. 27, 2020).
\100\ International Organization for Migration (IOM) Central
America Meeting with SFRC Democratic Staff, Oct. 16, 2020.
\101\ Schmidtke, Schacher, & Sawyer, Deportation with a Layover, at
30.
---------------------------------------------------------------------------
Given the dangerous and intimidating conditions they faced,
it is not surprising that very few asylum seekers transferred
under the ACA actually applied for asylum in Guatemala. The
degrading treatment, arbitrary time pressure, and inadequate
information provided both in the United States and in
Guatemala, all contributed to a coercive context for asylum
seekers' decision-making that was further compounded by fear of
the country's high levels of violence, and the psychological
traumas of persecution and displacement. Of the 945 asylum
seekers transferred to Guatemala under the ACA, only 18 (less
than two percent) are actively pursuing asylum claims there,
and not one has received a decision.\102\ Many transferred
asylum seekers said they felt unsafe in Guatemala and that
their only option was to return to Honduras or El Salvador
where at least they could access support networks while they
decide their next move. One Honduran woman transferred under
the ACA said: ``Guatemala? It's the same as Honduras. The
difference is that in Guatemala I don't have relatives.''\103\
Another Honduran woman said of the gang members who threatened
to kill her and her son: ``Guatemala is the first place they
would look for me.'' She went into hiding in Honduras following
her ACA transfer to Guatemala.\104\
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\102\ UNHCR Guatemala meeting with SFRC Democratic Staff, Oct. 21,
2020.
\103\ Kirk Semple, ``Asylum Seekers Say U.S. is Returning Them to
the Dangers They Fled,'' The New York Times, Mar. 17, 2020.
\104\ Id.
Table 1: ACA Transfers to Guatemala
November 2019-March 2020 \105\
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
Total ACA Transfers 945
Indicated protection concerns 108 of 130 83%
ACA Asylum applications 34 3.5%
Abandoned 16 1.6%
Active 18 1.9%
Guatemala ACA asylum decisions 0 0
------------------------------------------------------------------------
\105\ UNHCR Guatemala meeting with SFRC Democratic Staff, Oct. 21, 2020.
The percentages reflected on this table are based on the number of
individuals that UNHCR and its partners were able to interview and not
on the total number of ACA transfers.
Neither the State Department, DHS, or any other component
of the U.S. government is responsible for monitoring the safety
of asylum seekers transferred to Guatemala under the ACA.
Without an ability to follow up, it is difficult to confirm,
but seems highly likely that there are specific cases in which
the ACA has violated the prohibition on refoulement in U.S.,
Guatemalan, and international law. Civil society groups were
able to interview only 130 ACA transferees upon reception in
Guatemala, but found that a large proportion (108 out of 130)
indicated they had protection concerns.\106\ Based on this
assessment, a rate of protection concerns of 83 percent and an
asylum application rate of less than two percent, it is clear
to SFRC Democratic Staff that the vast majority of asylum
seekers transferred under the Guatemala ACA did not have ``full
and fair'' access to asylum.
---------------------------------------------------------------------------
\106\ Id.
COVID-19 and Displacement Trends
The outbreak of the COVID-19 pandemic resulted in border
closures and travel restrictions around the world, including
Guatemala's decision to suspend ACA implementation. Although
the Honduras ACA entered into force on March 25, 2020 and the
El Salvador ACA entered into force on December 15, 2020, the
requisite determinations by the Attorney General and the DHS
Acting Secretary of ``full and fair'' access to asylum in
Honduras and El Salvador have not been made available to
Congress or the public. The COVID-19 pandemic has delayed the
start of ACA transfer flights from the United States to
Honduras. Still, international organizations and NGOs have
expressed concern that the Honduras ACA's implementation plan
indicates it would apply to nationals of Mexico, Guatemala, El
Salvador, Brazil and Nicaragua, noting that two asylum seekers
from Nicaragua were brutally murdered in Honduras in 2019.\107\
Surging migrant apprehensions at the U.S. southern border,
ongoing migrant caravans from Central America, and other data
show that anti-immigrant policies have not had the deterrent
effect intended by the Trump administration.\108\ Evidence of
Guatemala ACA transferees re-grouping to journey again towards
the United States demonstrates the futility of ``burden
shifting'' policies when asylum seekers are forced to flee
persecution, violence, and other grave threats to their lives
and freedom at home and throughout the region. Dangerous
conditions in Central America, compounded by economic
contractions related to COVID-19 and the devastating impact of
Hurricanes Eta and Iota, are push factors more powerful than
U.S. immigration policy.\109\
---------------------------------------------------------------------------
\107\ ``Human Rights First Warns Against Implementation of Honduras
Asylum Agreement During Pandemic,'' Human Rights First, Apr. 30, 2020,
https://bit.ly/3g1Yxrp; see also ``Cuerpos de nicaragenses refugiados
en Honduras son enviados a su pais,'' La Tribuna, June 29, 2019,
https://bit.ly/3x6JClq.
\108\ Nick Miroff, ``Migrant Arrests at the U.S. Border Rose to a
13-month High in September,'' The Washington Post, Oct. 14, 2020.
\109\ Natalie Kitroeff, ``Two Hurricanes Devastated Central
America. Will the Ruin Spur a Migration Wave?'' The New York Times,
Dec. 4, 2020.
VII. Conclusion, Findings, and Recommendations
----------
During negotiations with the Trump administration, the
Government of Guatemala sought to change the name of the
agreement from ``safe third country agreement'' to
``Cooperation Agreement for the Assessment of Protection
Requests.''\110\ In agreeing to this request, the Trump
administration's decision to remove the word ``safe'' from the
name of all three agreements was an implicit acknowledgement
that Guatemala, Honduras, and El Salvador are not actually safe
for the transfer of asylum seekers. In this way, the name
change suggests that the agreements do not comply with the
``safe third country'' provision of U.S. law.
---------------------------------------------------------------------------
\110\ Sam Levin, ``Trump Says Agreement Reached with Guatemala to
Restrict Asylum Seekers,'' The Guardian, July 26, 2019.
---------------------------------------------------------------------------
As the Trump administration pursued the ACAs, it shrouded
the details of the agreements in secrecy and obstructed
oversight by members of Congress, attempting to hide its
callous abuse of the human rights of vulnerable people.
President Trump's bullying tactics bruised U.S. relations in
the region, and resulted in agreements that the governments of
Guatemala, Honduras, and El Salvador do not have the capacity
to implement. But the most shameful aspects of the ACAs are
their grave consequences for refugees and asylum seekers who--
under the Guatemala ACA--suffered degrading treatment and were
coerced into situations where their lives and freedom remain in
danger.
In an era of historic levels of forced displacement in the
Western Hemisphere and around the world, the ACAs are
especially cruel and counterproductive. They distort U.S.
asylum law and accompany a series of pernicious policies to
exclude asylum seekers and refugees from protection in the
United States. As the director of the American Immigration
Lawyers Association, Ruben Reyes said: ``The purpose of this
administration's policy with asylum seekers is to put one more
finger around the necks of refugees . . . [t]o try and make it
so difficult, so onerous, so awful that they just give
up.''\111\
---------------------------------------------------------------------------
\111\ Megan Janetsky, ``Asylum Seekers in Limbo Look to US election
With Hope and Fear,'' Al Jazeera, Nov. 1, 2020.
---------------------------------------------------------------------------
The ACAs inflict harm not only on the lives of individuals
and families, but on U.S. national interests. Eighteen states
and the District of Columbia called the Guatemala ACA
``inimical to the interest of the States and the public in
ensuring that those in need of protection are not sent into the
hands of their persecutors,'' and noted ``asylees' significant
economic and community contributions.''\112\ Former White House
chief of staff Denis McDonough has said that ``the United
States' historic commitments to refugees, immigration, and
asylum are sources of great strength rather than sources of
weakness or threat.''\113\ When the United States demonstrates
leadership in protecting refugees and asylum seekers, other
countries often follow suit, taking critical steps toward
global cooperation to address instability and resolve conflicts
and crises. Simply put, protection of refugees and asylum
seekers is in the interest of the American public and U.S.
national security.
---------------------------------------------------------------------------
\112\ Amicus Curiae Brief of the States of California, Connecticut,
Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode
Island, Vermont, Washington, and the District of Columbia in Support of
Plaintiffs' Motion for Summary Judgment and Permanent Injunction, U.T.
v. Barr, at 12, Case no.1:20-cv-00116 (D.D.C. 2020).
\113\ ``Denis McDonough on the Future of Migration,'' Georgetown
Journal of International Affairs, Nov. 30, 2018, https://bit.ly/
3cpLnSP.
---------------------------------------------------------------------------
The Trump administration views the ACAs as a model to be
replicated with other countries around the world.\114\ This is
precisely the opposite of what needs to happen. Shifting
responsibility for refugee protection onto countries so
dangerous their own citizens are fleeing en masse only
demonstrates inhumanity and cruelty while exacerbating the dire
conditions that fuel the ongoing global forced migration
crisis. Especially in an era of unprecedented levels of forced
displacement around the world, these harmful policies must end.
The United States must terminate the ACAs. Congress must pass
legislation to clarify its intent and strengthen accountability
for legitimately safe third country agreements. More broadly,
U.S. policies must restore our leadership in upholding the
right to seek asylum and in protecting refugees at home and
around the world. The latter is imperative to truly and
sustainably increase responsibility sharing with other
countries so that future safe third country agreements might be
possible, but more importantly, so that refugees and asylum
seekers find protection and displacement crises are resolved.
---------------------------------------------------------------------------
\114\ Elliot Spagat, ``Top Trump Advisor Wants More Nations to
Field Asylum Claims,'' Associated Press, Oct. 24, 2020.
PRINCIPAL FINDINGS
The ACAs appear to violate U.S. law and international
obligations by posing serious risks of refoulement.
Guatemala, Honduras, and El Salvador are not safe
places for refugees and asylum seekers as the law
underpinning these agreements requires. These countries
are among the most dangerous countries in the world.
High levels of violence, especially gang violence and
gender-based violence, pose grave risks for many
refugees and migrants. All three countries have
``nascent'' asylum systems that lack institutional
capacity to screen asylum seekers transferred under the
ACAs and to uphold their legal obligations to protect
refugees from refoulement.
Of the 945 asylum seekers transferred to Guatemala under
the ACA since November 2019, to date not one has been
granted asylum. The numbers underscore the fact that
asylum seekers subject to the ACA lack access to asylum
and remain doubly at risk of refoulement to Guatemala
as their country of transfer and to their country of
origin.
Determinations by the Attorney General and DHS Acting
Secretary that Guatemala provides ``full and fair''
access to asylum were based on partial truths and
ignored critical State Department input and widely held
information about the country's general level of
violence. They relied on a paper review of the
country's Migration Code that failed to consider the
U.S. Embassy's assessment of Guatemala's asylum
capacity and dangerous conditions, as well as other
evidence that Guatemala does not meet the requirements
of the safe third country provision in U.S. law.
The Trump administration radically distorted and willfully
disregarded the intent and statutory language related
to safe third country agreements. Although Congress
intended the safe third country provision to return
asylum seekers in the United States to a safe country
of transit, the Trump administration crafted the ACAs
to allow asylum seekers of any nationality to be
transferred from any location in the United States to
the agreed third country. The ACAs serve not as an
exception to the right to seek asylum enshrined in U.S.
law, but as a broad bar to any asylum screening by U.S.
officials. They deny asylum seekers the opportunity to
claim a reasonable fear of persecution, and hold them
to the higher standard of being ``more likely than
not'' to face persecution or torture in the country of
removal.
Asylum seekers transferred to Guatemala under the ACA were
subjected to degrading treatment and effectively
coerced to return home where many feared persecution
and harm. Although a large proportion of transferees
indicated protection concerns, they were not fully
informed about their right to seek asylum, lacked legal
counsel, and faced arbitrary deadlines and other
conditions that precluded ``full and fair'' access to
asylum. DHS did not provide guidance to exempt highly
vulnerable asylum seekers from transfer, such as LGBTI
individuals and survivors of gender-based violence.
Transferring responsibility for asylum processing
exacerbates the problem of forced displacement rather
than resolving it.
The White House and DHS used coercive tactics to hastily
conclude the ACAs, dismissing serious objections by
Guatemalan authorities, civil society, the State
Department, and others. The State Department took a
subordinate role in ACA negotiations. President Trump
rejected State Department concerns, and bullied the
government of Guatemala into signing the agreement with
threats of visa sanctions and tariffs.
The Trump administration continues to maintain secrecy and
obstruct accountability in its pursuit of ACA
implementation. It has repeatedly refused to provide
documents related to the ACAs to Congress for over a
year and failed to respond fully to written questions
from Senator Menendez and SFRC Democratic Staff.
RECOMMENDATIONS
1. The Biden administration must immediately terminate the
Asylum Cooperative Agreements with Guatemala, Honduras,
and El Salvador: Pending termination, the United States
should immediately suspend all implementation. Any
future consideration of countries for negotiation of
safe third country agreements (STCAs) should not occur
without a set of clear criteria established by the
State Department, in consultation with international
and non-governmental organizations, as to what is a
safe place for the transfer of asylum seekers. STCA
negotiations should not begin until such criteria are
met.
2. Congress must ensure it plays a more active role in the
enactment and implementation of all future safe third
country agreements, either by:
a. Passing legislation requiring the State Department to
submit the details of a Safe Third Country
Agreement to Congress for review and for Congress
to approve or disapprove each agreement; or
b. Requiring the Secretary of State to submit to Congress a
certification before the transfer of aliens
pursuant to a Safe Third Country Agreement begins
that such country meets certain requirements prior
to the use of relevant appropriations.
3. Congress must amend INA Section 208(a)(2)(A) to:
a. Ensure that asylum seekers are not transferred to safe
third countries that they have not transited or to
which they have no meaningful connection;
b. Require that the Secretary of DHS, in consultation with
the Secretary of State, establish in each future
safe third country agreement clear and specific
criteria for exceptions based on humanitarian and
public interests;
c. Require determinations concerning whether a potential
safe third country provides ``full and fair''
access to asylum to be made jointly by Secretary of
State, Attorney General, and Secretary of Homeland
Security, and that it be informed by input from the
United States Ambassador, to the relevant country;
and
d. Authorize judicial review of executive branch safe third
country determinations.
4. The DHS Inspector General and Office of Civil Rights must
investigate and review abusive conditions and degrading
treatment of ACA transferees: Without discrimination,
asylum seekers in custody at the U.S. southern border
should be treated with dignity and respect for human
rights. They should be provided accurate and full
information by trained USCIS asylum officers about
their right to seek asylum in the United States, and be
allowed access to legal counsel and language
interpretation. U.S. officers must make special
accommodations in their treatment of highly vulnerable
asylum seekers such as pregnant women, LGBTI
individuals, survivors of gender-based violence, and
children.
5. U.S. foreign policy toward Central America should take a
holistic approach to addressing the drivers of forced
displacement: Rather than the Trump administration's
singular focus on stemming irregular migration, U.S.
policies and programs should aim to reduce gang
violence and gender-based violence, to combat
corruption and strengthen access to justice, and to
reduce poverty and protect human rights, particularly
for LGBTI individuals and other marginalized
populations. The State Department should continue to
strengthen asylum systems, responses to internal
displacement, resettlement processing, and other
protection mechanisms in Central America through
support to international organizations and should
authorize Migration and Refugee Assistance funding to
NGOs working in the region.
6. The Governments of Guatemala, Honduras, and El Salvador
should dedicate resources to strengthen their capacity
to protect refugees, asylum seekers, and internally
displaced persons: They should implement national
action plans to advance the Comprehensive Regional
Protection and Solutions Framework (MIRPS) in
coordination with international organizations.
ANNEX 1
Definitions of Key Terms
----------
Refugee: A refugee is ``any person who is outside of any
country of such person's nationality or, in the case of a
person having no nationality, is outside any country in which
such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country because
of persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion.''\115\ This definition
under U.S. law largely mirrors the refugee definition outlined
in the 1951 Convention relating to the Status of Refugees and
its 1967 Protocol. Having acceded to the Refugee Convention and
Protocol, Guatemala, Honduras, and El Salvador agreed to this
definition. They also have adopted the broader refugee
definition under the 1984 Cartagena Declaration, which includes
``persons who have fled their country because their lives,
safety or freedom have been threatened by generalized violence,
foreign aggression, internal conflicts, massive violation of
human rights or other circumstances which have seriously
disturbed public order.''\116\
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\115\ See INA 101(a)(42), 8 U.S.C. Sec. 1101(a)(42).
\116\ See Article III(3) of the Cartagena Declaration on Refugees,
adopted by the Colloquium on the International Protection of Refugees
in Central America, Mexico and Panama, Cartagena de Indias, Colombia,
Nov. 22, 1984, https://bit.ly/3gxV3fl.
Asylum-Seeker: The UN Refugee Agency defines an asylum-
seeker as an individual who is seeking international protection
and whose request for asylum has not yet been finally decided
on.\117\ Although not every asylum-seeker will ultimately be
recognized as a refugee, every refugee was initially an asylum-
seeker.
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\117\ UN High Commissioner for Refugees, The 10-Point Plan in
Action, 2016--Glossary, Dec. 2016, https://bit.ly/355TtM1.
Migrant: The International Organization for Migration
defines a migrant as any person who is moving or has moved
across an international border or within a State away from his/
her habitual place of residence, regardless of (1) the person's
legal status; (2) whether the movement is voluntary or
involuntary; (3) what the causes for the movement are; or (4)
the length of the stay.\118\
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\118\ United Nations, Global Issues, ``Migration,'' https://bit.ly/
3iqGpZJ (last visited Dec. 16, 2020).
Protection: In the context of international humanitarian
action, the Inter-Agency Standing Committee defines protection
as ``all activities aimed at obtaining full respect for the
rights of the individual in accordance with the letter and the
spirit of the relevant bodies of law (i.e., international human
rights law, international humanitarian law, international
refugee law).''\119\ Protection includes measures to stop or
prevent violence, abuse, coercion and deprivation of civilians
affected by crises as well as efforts to restore safety and
dignity to their lives. Governments have primary responsibility
for the protection of persons on their territory. Major
protection challenges for refugees and asylum seekers often
include barriers to asylum, lack of access by humanitarian
organizations to those in need of assistance, gender-based
violence, family separation, and forcible recruitment into
armed groups, among others.
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\119\ Inter-Agency Standing Committee, ``Policy: Protection in
Humanitarian Action,'' Oct. 2016, at 2.
Non-refoulement: A cardinal principle of refugee protection
codified in Article 33 of the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol, non-refoulement most
commonly refers to the obligation or principle of not returning
a refugee to a territory where there is a risk that his or her
life or freedom would be threatened on account of race,
religion, nationality, membership of a particular social group,
or political opinion, although the concept could apply to
broader forms of harm as well. Article 3 of the 1984 Convention
Against Torture contains a non-refoulement obligation with
respect to torture. The principle of non-refoulement applies
not only with respect to the individual's country of origin but
to any country where he or she would face persecution. Properly
applied, the principle protects those who are seeking
international protection even if they have not been formally
recognized as a refugee.\120\ Indeed, the threat of refoulement
is often a concern where a country lacks effective systems or
procedures for determining refugee status or conducts mass
deportations. The United States implements its non-refoulement
obligations through a provision on withholding of removal in
INA Section 241(b)(3).
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\120\ UN High Commissioner for Refugees, Note on Non-Refoulement
(Submitted by the High Commissioner), 38th Session, Aug. 23, 1977,
http://www.refworld.org/docid/3ae68ccd10.html.
ANNEX 2
Legal Challenges to Trump Administration
Immigration Policies
----------
The Trump administration has pursued a series of
restrictive immigration policies that have faced serious
challenges in U.S. courts. While not an exhaustive list, the
policies facing legal challenges below indicate a pattern of
unlawful maneuvers to close pathways for refugees and asylum
seekers in need of protection in the United States.
1. Family Separation at the U.S.-Mexico Border
The lawsuit Ms. L v. ICE and a writ for habeas corpus was
filed in the U.S. District Court for the Southern District of
California on February 26, 2018 by an asylum seeker from the
Democratic Republic of Congo who was forcibly separated from
her then-six-year old daughter. Represented by the American
Civil Liberties Union, the plaintiff sued U.S. Immigration and
Customs Enforcement (ICE), the U.S. Department of Homeland
Security (DHS), and other government agencies for the forcible
separation of over 2,000 asylum-seeking families who arrived at
the southern border without documentation. In June 2018, the
judge issued a preliminary injunction requiring U.S.
immigration authorities to reunite most separated families
within 30 days and to reunite children younger than age five
within two weeks, however the Trump administration continued to
separate families. The case is ongoing in the district
court.\121\
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\121\ See Ms. L v. United States Immigration & Customs Enf't
(``ICE''), 415 F. Supp. 3d 980 (S.D. Cal. 2020).
2. State and Local Consent for U.S. Refugee Admissions Program
On November 21, 2019, HIAS, Inc., Church World Service,
Inc., and Lutheran Immigration & Refugee Service, Inc. filed
the lawsuit HIAS, Inc. v. Trump in the U.S. District Court for
the District of Maryland. The plaintiffs, challenged the
``Enhancing State and Local Involvement in Refugee
Resettlement'' Executive Order 13888, alleging that this action
by the Trump administration violates the Refugee Act of 1980,
the Administrative Procedure Act (APA), and principles of
federalism. The plaintiffs argued that Executive Order 13888
makes an unprecedented change to the refugee resettlement
process by mandating that refugees not be resettled in the
United States unless the state and locality where they are to
be resettled take the affirmative step of providing written
consent. On January 15, 2020, Judge Peter J. Messitte granted
the plaintiffs' motion for a preliminary injunction and
ultimately issued a nationwide injunction enjoining Executive
Order 13888. The Fourth Circuit affirmed the nationwide
preliminary injunction on January 8, 2021.\122\
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\122\ Miriam Jordan, ``Judge Halts Trump Policy That Allows States
to Bar Refugees,'' The New York Times, Jan. 15, 2020; see also HIAS,
Inc. v. Trump, 415 F. Supp. 3d 669 (D. Md. 2020); Ann E. Marimow,
``Trump's Refugee Resettlement Policy Blocked by Federal Appeals
Court,'' Washington Post, Jan. 8, 2021; see also HIAS, Inc. v. Trump,
Case no. 20-1160, 2021 WL 69994 (4th Cir. Jan. 8, 2021).
3. Termination of Temporary Protected Status
The lawsuit NAACP v. DHS was filed in the U.S. District
Court of Maryland on January 24, 2018. Represented by its own
counsel, the NAACP challenged DHS' November 2017 termination of
Temporary Protected Status (TPS) for Haitians living in the
United States. On March 23, 2020, the judge granted the
defendants' motion to stay proceedings due to the
interconnected nature of parallel litigation and the COVID-19
pandemic. This case is ongoing.\123\
---------------------------------------------------------------------------
\123\ See NAACP v. United States Dep't of Homeland Sec., Case No.
18-0239, 2020 U.S. Dist. LEXIS 49818 (D. Md. 2020).
---------------------------------------------------------------------------
Nine TPS recipients and five U.S. citizen children of TPS
holders filed the class action lawsuit Ramos et al v. Nielsen
in the U.S. District Court in the Northern District of
California on March 12, 2018. The plaintiffs argued that the
new DHS rule for determining whether to end TPS designations
for immigrants from countries facing various crises violated
their rights under the Fifth Amendment as well as requirements
set out by the APA. On October 3, 2018, the judge granted a
preliminary injunction in which the court determined that
plaintiffs would suffer irreparable harm, including family
separation and being forced to move back to countries where
neither the children nor adults have any remaining ties. DHS
subsequently appealed the decision to the Ninth Circuit. On
September 14, 2020, the Ninth Circuit vacated the preliminary
injunction having found that the district court did not have
jurisdiction to review the plaintiffs APA claim because the TPS
statute itself states that the Secretary of Homeland Security
possesses full and unreviewable discretion in designating
foreign states under the statute. After vacating the
preliminary injunction, the Ninth Circuit remanded the case to
the district court for further proceedings. The plaintiffs are
likely to challenge the Ninth Circuit's decision.\124\
---------------------------------------------------------------------------
\124\ See Ramos v. Nielsen, 975 F.3d 872 (9th Cir. 2020).
---------------------------------------------------------------------------
Four noncitizens, on behalf of a proposed class of
Temporary Protected Status recipients, filed the lawsuit Moreno
v. Nielsen against DHS and the U.S. Citizenship and Immigration
Services (USCIS) on February 22, 2018. The case was filed in
the U.S. District Court for the Eastern District of New York to
challenge the defendants' denial of their applications for
lawful permanent resident status. On May 18, 2020, the court
denied the plaintiffs' motion for a preliminary injunction. The
court stated that the plaintiffs failed to make a ``strong
showing'' of irreparable harm needed to obtain injunctive
relief. The case is ongoing.\125\
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\125\ See Moreno v. Nielsen, 460 F. Supp. 3d 291 (E.D.N.Y. 2020).
4. Asylum Cooperative Agreements
On January 15, 2020, the lawsuit U.T. v. Barr was filed in
U.S. District Court for the District of Columbia by six
plaintiffs, along with the Tahirih Justice Center and Las
Americas Immigrant Advocacy Center. Represented by the
Americans Civil Liberties Union, National Immigrant Justice
Center, Center for Gender & Refugee Studies, and Human Rights
First, the lawsuit challenged the Trump administration's new
policy of removing asylum seekers to Guatemala pursuant to an
``asylum cooperative agreement.'' The plaintiffs alleged that
the government's new policy violated the APA, the Immigration
and Nationality Act (INA), and Foreign Affairs Reform and
Restructuring Act of 1998 (FARRA). The case is ongoing.\126\
---------------------------------------------------------------------------
\126\ See U.T. v. Barr, Case no. 1:20-cv-00116-EGS (D.D.C. 2020).
5. The ``Interim Final Rule''
The East Bay Sanctuary Covenant, Al Otro Lado, Innovation
Law Lab, and the Central American Resource Center in Los
Angeles filed the lawsuit East Bay Sanctuary Covenant v. Barr
with the U.S. District Court in the Northern District of
California on July 16, 2019. Represented by the American Civil
Liberties Union, Southern Poverty Law Center, and the Center
for Constitutional Rights, the plaintiffs challenged an interim
final rule promulgated by the Attorney General and Acting
Secretary of Homeland Security, which made noncitizens who
transit through another country prior to reaching the southern
border of the United States ineligible for asylum. On July 24,
2019, the plaintiffs' motion for a preliminary injunction to
prevent the government from taking any further action to
implement the interim final rule was granted by the court. On
August 16, 2019, the Ninth Circuit denied a stay for the
application of the injunction inside its boundaries, but
granted the stay for all locations outside the Ninth Circuit.
On September 9, 2019, the judge granted the plaintiffs' motion
to restore the nationwide scope of the injunction, which was
subsequently appealed by the defendants. The Supreme Court
stayed the re-instated injunction on September 11, 2019 pending
the Ninth Circuit's decision on the appeal.\127\ The Ninth
Circuit affirmed the injunction in July 2020 and the case is
ongoing.\128\
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\127\ Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (Sept. 11,
2019).
\128\ East Bay Sanctuary Covenant v. Barr, Case no. 10-16485, (9th
Cir. 2020).
6. Migrant Protection Protocols
On February 14, 2019, Innovation Law Lab and its co-
plaintiffs filed the lawsuit Innovation Law Lab v. Wolf before
the U.S. District Court for the Northern District of
California. Co-plaintiffs of Innovation Law Lab include Al Otro
Lado, Central American Resource Center of Northern California,
Centro Legal de la Raza, University of San Francisco School of
Law Immigration & Deportation Defense Clinic, and Tahirih
Justice Center. The co-plaintiffs alleged that the Trump
administration's Migrant Protection Protocols, commonly
referred to as the ``Remain in Mexico'' policy, violates the
INA, the APA, and the United States' duty under domestic and
international law to not return people to dangerous conditions.
On April 8, 2019, the district court judge ruled that the
policy is unlawful and temporarily blocked its implementation.
On May 7, 2019, the Ninth Circuit stayed the lower court's
injunction. While a panel of the Ninth Circuit held that the
policy is unlawful and lifted the stay in February 2020, the
Supreme Court ultimately granted the federal government's
application for a stay of the lower court's preliminary
injunction that had blocked the implementation of the ``Remain
in Mexico'' policy on March 11, 2020. The stay will remain in
place until the Supreme Court resolves the government's appeal
from the Ninth Circuit proceedings.\129\
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\129\ Stephen Manning, ``Innovation Law Lab v. Wolf,'' Innovation
Law Lab, Feb. 28, 2020, https://bit.ly/2TSfn3d; see also Ramon Valdez,
``U.S. Supreme Court Allows `Remain in Mexico' To Stay In Effect,
Innovation Law Lab, Mar. 11, 2020, https://bit.ly/3w7DsBh.
7. Revisions to Existing Asylum Practices
On December 21, 2020, Pangea Legal Services and Immigration
Equality filed separate lawsuits, Pangea Legal Services v. DHS
and Immigration Equality v. DHS, in the U.S. District Court for
the Northern District of California to block the implementation
of a final rule issued by the Department of Homeland Security
and the Department of Justice on December 11, 2020. The rule,
scheduled to go into effect on January 11, 2021, would have
radically changed U.S. legal standards for asylum claims,
including by barring aliens from asylum if they spent
significant time in a third country before arriving in the
United States, and effectively establishing a presumption
against asylum claims rooted in gender-based persecution.\130\
On January 8, 2021, the court granted a nationwide preliminary
injunction against the rule pending further proceedings, in
part based on the likelihood of irreparable harm without
injunctive relief.\131\
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\130\ Procedures for Asylum and Withholding of Removal; Credible
Fear and Reasonable Fear Review, 85 Fed. Reg. 80274, 8 C.F.R. parts
208, 235, 1003, 1208, 1235 (Dec. 11, 2020).
\131\ Pangea Legal Services. v. U.S. Dep't of Homeland Sec., Case
no. 20-Cv-09253-JD, 2021 WL 75756, at *1 (N.D. Cal. Jan. 8, 2021).
---------------------------------------------------------------------------
ANNEX 3
Key Documents Related to the U.S.-Guatemala
Asylum Agreement
----------
Document 1: Attorney General's Determination
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Document 2: DHS' Determination
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Document 3: Diplomatic cable: U.S. Embassy Guatemala
Assessment of the Guatemalan Asylum System
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
ANNEX 4
State Department Responses to
SFRC Questions for the Record
----------
Document 1: State Department Responses
--Submitted December 2, 2019
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Document 2: State Department Responses
--Submitted December 23, 2019
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Document 3: Revised State Department Responses
--Submitted Feb. 14, 2020
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Document 4: Revised State Department Responses
--Submitted July 9, 2020
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
ANNEX 5
Correspondence Between U.S. Senators
and the Trump Administration
----------
Document 1: Letter from Sen. Menendez,
Warren, et al. to State Dept. and DHS
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Document 2: DHS Response to Feb. 5, 2020
Warren-Menendez Letter
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Document 3: Letter from Sen. Menendez to
Assistant Secretary of State Taylor
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Document 4: Letter from Sen. Menendez
to Secretary Pompeo
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]