In July 2019, President Donald J. Trump signed an agreement with the Guatemalan president, Jimmy Morales, providing that asylum seekers who pass through Guatemala must first apply in that country to be eligible for asylum in the United States. The “safe third country agreement” is part of the Trump administration’s broader policy mandating that all asylum seekers must first apply in any “safe third country” they pass through in order to be eligible for asylum in the United States. The “interim” rule, referred to colloquially as the “transit ban,” effectively blocks people fleeing from Latin American countries from seeking protection in the United States unless they have already applied for and been denied asylum in a third country.

THE US-GUATEMALA SAFE THIRD COUNTRY AGREEMENT

Guatemala’s Constitutional Court initially rejected the deal, holding that a “safe third country agreement” with the United States would require Guatemalan Congressional approval. A succeeding determination, however, allows the plan to move forward with just the president’s sign-off. Guatemalan president-elect, Alejandro Giammattei, spoke out against the deal and the burden it places on the Guatemalan government, pledging to ameliorate its terms when he takes office. However, now that President Trump has partially restored economic aid to Guatemala, El Salvador, and Honduras, it is not clear if Mr. Giammattei will be able to refuse his conditions. President Trump has already used the suspension of aid to pressure both El Salvador and Honduras into similar “safe third country” agreements.

Human rights groups are criticising the deal with Guatemala, claiming that the country is not safe for asylum seekers and itself produces refugees fleeing gang and gender-based violence every day. Furthermore, they argue that the Guatemalan government lacks the resources to offer a fair asylum process. In 2018, Guatemala received 262 asylum applications, only a handful of which were approved. Former acting Secretary for the Department of Homeland Security Kevin McAleen argued before his resignation the unreasonableness of expecting asylum seekers to travel all the way through Central America to reach safety in the US. The agreement, he argued, combined with US aid, will allow Guatemala to rebuild its asylum system.

US CIVIL SOCIETY LEGAL ACTION AGAINST THE TRANSIT BAN

Immigrant and civil rights groups have initiated several lawsuits in US federal courts challenging the transit ban. They have argued that the regulation contradicts Congress’s own law barring asylum seekers from applying in the United States only when they have previously “firmly resettled” in another country. In the U.S. District Court for Northern California, Judge Jon Tigar granted a preliminary injunction halting enforcement of the ban. In his opinion, Judge Tigar stated that the new rule violates existing asylum law and its purpose of ensuring that asylum seekers are not returned to the “site of their persecution.”

As Judge Tigar observed, the transit ban is most likely illegal under international law. The United States was not a signatory to the original 1951 Convention Relating to the Status of Refugees; however, the country did sign an amended version in 1967. The treaty makes it illegal to expel asylum seekers without due legal process. Furthermore, refoulement—the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution—is prohibited. Besides its treatment of asylum seekers, the Trump administration has significantly limited the number of refugees that the United States will accept in the next year. The ceiling for acceptances in 2016, the final ceiling set by the Obama administration, was 85,000. This number has been reduced every year since President Trump took office, and the proposed ceiling for 2020 is a mere 18,000. Combined with its asylum policies, critics have accused the United States of shirking its international responsibilities.

After the federal government appealed Judge Tigar’s decision, the Ninth Circuit Court of Appeals limited the scope of his injunction to only states within the Ninth Circuit. The government further sought a stay of the injunction with the US Supreme Court, which was granted in September, thereby allowing the transit ban to go into effect across the country as litigation continues. The US Court of Appeals for the Ninth Circuit heard oral arguments on the merits of the case on December 2, 2019. However, the Department of Homeland Security was within its rights to return asylum seekers to Mexico prior to this date.

Brynna is a second-year law student at UC Hastings College of the Law. Brynna has interned with the International Rescue Committee and has worked with asylum seekers in a legal setting through the Refugee and Human Rights Clinic at UC Hastings. She hopes to pursue a career in immigration law and policy.

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