Week 10: Removal of asylum seekers to Guatemala begins

Immigration news, in context.

This is the tenth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

*Programming note: we will be off next week. If you celebrate it, enjoy your thanksgiving!*

The Big Picture

Third-country deal with Guatemala goes from framework to reality as details are published and regulations changed

The News: Since the Trump administration announced the signing of a bilateral Asylum Cooperative Agreement (ACA) with Guatemala in July, the implementation timeline had been uncertain. Now, they’ve published new regulations and trained staff to begin removing asylum seekers to Guatemala. At least one Honduran migrant has already been deported under the deal.

What’s happening?

We’ve talked a lot in this newsletter about the administration’s establishment of superseding layers of obstacles to asylum. These obstacles are intended to ultimately make the process as difficult as possible and, in doing so, dissuade claims from being made in the first place. But no obstacle was absolute; there was always access to an asylum process, however slim its chances of success, as long as an asylum seeker managed to avoid increasingly all-encompassing disqualifications.

That changed this week, as the federal government has in theory nixed even the possibility of a process for, practically speaking, any adult who may seek it. (Unaccompanied minors will not be affected). It did this through the implementation of its ACA with Guatemala, a five-page, broadly-worded July bilateral pact signed by then-Acting Homeland Security Secretary Kevin McAleenan and Guatemalan Minister of Government Enrique Degenhart Asturias.

As we’ve noted before, the asylum statute itself enumerates certain exceptions to the ability to seek asylum. One of those, 8 USC 1158(a)(2)(A), stipulates that “an alien may be removed, pursuant to a bilateral or multilateral agreement, to a country” in which they would not be persecuted due to race, religion, nationality, political leaning, or membership in a social group, and have access to a fair asylum adjudication there.

Federal regulations published this week lay out how the bilateral agreement with Guatemala — as well as similar deals with Honduras and El Salvador that have been signed but not implemented — will work in practice. The regulations were published as an interim final rule, meaning they immediately went into effect, though are still receiving public comment and may be changed. They modify existing 8 CFR 208.30, 1003.42, and 1240.11, which currently govern the implementation of safe third country agreements.

The rules differ from those governing the safe third country agreement the U.S. has with Canada, the only other asylum agreement the U.S. has with another country, in a few key respects. Chief among them is that while the Canada agreement applies to migrants who have traveled through Canada and reached the Canada-U.S. border to apply for asylum, the new ACAs have no such requirements. “[T]his generalized rule for the implementation of all ACAs (with countries other than Canada) will cover ACAs to the full extent permitted by section 208(a)(2)(A), which contains no limitation to only those aliens who have transited through the relevant third country or who arrive at ports of entry,” it reads, using the Immigration and Nationality Act (INA) citation of the asylum law.

This little bit of language has huge repercussions for asylum in the United States. For the first time, asylum seekers can be deported, without access to the typical humanitarian protections, to third countries they’ve never been. This applies even if they had arrived in the U.S. directly from their own countries of origin, as would be the case with almost all Mexican asylum seekers.

The only explicit exceptions are for migrants who are unaccompanied minors, are nationals of the other country in the agreement, or who can demonstrate they are “more likely than not” to be persecuted or tortured in the third country, based on the same categories as an asylum claim, and through a “preponderance of the evidence.” There is also an exception if the Homeland Security finds it is “in the public interest for the alien to receive asylum in the United States,” though it’s not clear when exactly this would apply or how it would be determined.

To be exempted, migrants must express fear of being sent to Guatemala affirmatively and independently, and aren’t entitled to access to an attorney prior to a screening interview, which may take place in person or over the phone. “The bilateral ACAs… incorporate fewer and less complex exceptions than the U.S.-Canada Agreement, eliminating the need for a consultation period,” the regulation states.

For an asylum seeker at the border, an asylum officer has the ultimate power to determine whether they qualify for an exception and should be removed to an ACA country; the regulations explicitly prohibit appeals to an immigration judge. “Because the ACA country of removal did not prompt the alien’s claim, the process for determining simply whether to send the alien to a third country for that consideration is reasonably more minimalistic than the requisite procedures for deciding asylum and withholding of removal claims on the merits,” it reads. Those subject to an ACA also cannot apply for lesser forms of protection, such as withholding of removal and protections under the Convention Against Torture.

How we got here

The U.S. has an existing safe third country agreement with Canada, which has been in effect since 2004. The Canada agreement is a bit different from those reached with Guatemala and other Central American countries. Canada and the U.S. share a border, for one, and Canada-U.S. agreement only applies to migrants who present at ports of entry on either side of the border. The Central American agreements, meanwhile, apply to virtually any migrant who attempts to seek asylum in the U.S., with a few key exceptions.

The Canadian agreement — and the concept of safe third country agreements more broadly — relies on the assumption that both parties can equally protect asylum seekers from harm. (In fact, some Canadian advocacy groups, including Amnesty Canada, have called on the country to end its agreement with the U.S. because of the Trump administration’s ongoing efforts to effectively end asylum in the U.S.) The Guatemalan agreement operates under no such pretense; the United Nations’ refugee agency said it “has serious concerns” about the deal, which “could result in the transfer of highly vulnerable individuals to countries where they may face life-threatening dangers.”

Guatemala was the first Central American country to sign a cooperative asylum agreement with the U.S. The agreement, signed in late July, was immediately controversial in Guatemala. The country’s Constitutional Court blocked the agreement from going into effect, but outgoing president  Jimmy Morales, who was under investigation for corruption by the International Commission Against Impunity in Guatemala (CICIG), saw that it was implemented anyway. 

CICIG asked Guatemala’s Congress to strip Morales of his immunity against prosecution after finding that his party received an approximate $325,000 in anonymous campaign contributions in 2015. Congress rejected the overture, and Morales — whose 2015 campaign slogan was “Not corrupt, nor a thief — tried to expel CICIG’s lead investigator from the country. A year later, Morales announced he wouldn’t be renewing CICIG’s mandate, which officially ended in September. (Morales’ wife was also under investigation for cashing illegal checks during his campaign, and his son and brother were on trial for money laundering, though they were ultimately acquitted)

As Sandra Cuffe explained earlier this year, CICIG didn’t just investigate corruption, and corruption in Guatemala is about more than just money. In 2015, the commission investigated a corruption ring involving several federal officials, including Guatemala’s then-President and Vice President, whose origins date back to Guatemala’s long civil war. The war began with a U.S.-backed coup and lasted more than 30 years. An estimated 200,000 people were killed during the war, which stretched from 1960 to 1996, many of them indigenous Guatemalans. Under the guise of combating an armed leftist insurgency, the Guatemalan military massacred indigenous communities in Guatemala’s highlands. During the war, Cuffe writes, military and intelligence forces formed criminal networks that operate in some form to this day.

All of this is to say that the fallout from Guatemala’s civil war is ongoing, and without CICIG, corruption and criminal networks can operate more freely — which not only lines the pockets of those involved in corruption schemes, but also affects everyday Guatemalans who are already susceptible to threats from gangs and other organized crime networks. Many of the asylum seekers who leave Guatemala are fleeing gangs that try to recruit, exploit, or extort them. 

For all of these reasons and more, critics of the Trump administration’s deal with Guatemala have said it’s not a safe country for asylum seekers. Even Guatemalan President-elect Alejandro Giammettei opposes the agreement. “If we do not have the capacity for our own people, just imagine other people,” he said in an August interview with the Associated Press.

Despite critics’ and human rights advocates’ objections, administration officials are trying to frame the Guatemala agreement as a genuine effort to share the burden of taking in migrants and to provide asylum seekers with relief in the first country they reach — even though, as we explained, migrants don’t actually have to pass through Guatemala to be sent there under the terms of the deal.

What’s next?

As of now, the application of these regulations appears limited.

In their broadest interpretation, they could apply to people of any nationality except of the ACA country who make an asylum claim anywhere in the United States. The regulations specifically discuss defensive asylum applications — that is, those submitted as an applicant is already facing removal, whether at the border under an expedited removal process or elsewhere under a removal proceeding before an immigration judge — but do not explicitly exclude affirmative applications made by individuals not already facing removal, leaving it unclear whether these will also be excluded from consideration at some point.

As of now, the ACA is being applied only in the El Paso Border Patrol sector. Training materials and notes leaked to Reuters make clear that the administration is currently not including affirmative applications and limiting its applicability to adults from El Salvador and Honduras. It emphasizes that migrants must proactively express fear of being sent to Guatemala to be evaluated for an exception to the ACA.

Legally speaking, the administration is required to evaluate the ACA country’s ability to receive asylum seekers and provide them with a “full and fair” asylum process. This review was conducted largely out of sight. On November 7, Valerie Boyd, the assistant secretary for international affairs at Homeland Security, mentioned offhand that Justice and DHS had already conducted the review and certified that Guatemala had such a system, the first such public admission. From the deal’s announcement, this had been one of the primary questions raised. With a tiny asylum system that granted all of 20 asylum applications in 2018, how could Guatemala handle the influx of new asylum seekers remanded from the U.S.? Further, as a nation that itself produces a large share of asylum seekers, how could it guarantee their safety?

As the program start drew near, evidence of the challenges mounted. BuzzFeed News reported that, just days away from the deal’s implementation, it remained unclear who would provide services, food, and shelter for returning asylum seekers, and that even the resource guide given to U.S. asylum officers contained plenty of information about the power of local gangs, pervasive violence against women, and other issues. Nonetheless, the administration has already begun sending migrants to Guatemala.

The experience of the first person removed under the ACA, a Honduran man who landed in Guatemala City on Thursday, is illustrative in understanding how this will likely play out. His official paperwork says he is authorized to stay in that country for only three days, Reuters reports. He is apparently not seeking asylum in Guatemala, and is being sent back to Honduras.

This seems less like an alternate asylum venue and more like a roundabout deportation from the United States without any asylum process at all, which was probably what the administration intended when it signed these deals. Technically speaking, the man appears to have ‘abandoned’ his asylum case, but it’s not entirely clear whether Guatemala has much of a framework in place for an asylum claim to be evaluated at all. This will probably be the case for most asylum seekers sent to Guatemala; if and when the El Salvador and Honduras deals are officially implemented, Guatemalans could likewise be sent to one of those two countries. At maximum implementation, the new rules and the ACAs together could effectively shut down asylum altogether for migrants from all nationalities indefinitely.

A pressing question is how exactly these removals will be treated if and when a migrant attempts to reenter the United States. A deportation carries long-term consequences; for example, an expedited removal inflicts a five-year bar on attempting to return to the country, and an illegal reentry constitutes a felony-level federal offense.

The unavailability of asylum, withholding of removal, or Convention Against Torture protections makes those without other status in the U.S. — which is the vast majority of asylum seekers — deportable, and indeed their removal to Guatemala under the ACA is described as an order of removal. The rule also notes that “immigration officers can use their discretion to permit aliens subject to removal under ACAs to withdraw their applications for admission so that they do not face an admissibility bar,” implying that others would indeed face such an admissibility bar if sent to Guatemala. That could mean that even those denied asylum in Guatemala would be unable to seek it in the U.S.

A legal challenge based on the alleged lack of a full asylum process in the ACA countries is possible, but it would be an uphill battle. As ProPublica’s Dara Lind noted, U.S. courts are generally reticent to get involved in international agreements or undertake evaluations of specific conditions in foreign countries.

Under the Radar

The Trump administration’s “asylum ban” won’t apply to migrants who were metered before July

A federal judge in California ruled that the Trump administration’s asylum ban can’t apply to migrants who were waiting at the border before mid-July. Thanks to the administration’s policy of “metering” asylum seekers — limiting how many people were allowed to claim asylum at ports of entry each day — the ban initially affected migrants who arrived at the U.S.-Mexico border weeks or even months before the policy went into effect.

“But for the Government's metering policy, these asylum-seekers would have entered the United States and started the asylum process without delay,” Judge Cynthia Bashant of the Southern District of California wrote in a court order. “[B]ecause they did as the Government initially required and waited in Mexico, the Government is now arguing that they did not enter, attempt to enter, or arrive in the United States before July 16, 2019 and are now subject to this additional eligibility limitation. This situation, at its core, is quintessentially inequitable.”

By not carving out an exception for migrants who arrived at the border before July, the regulation essentially punished migrants who “waited in line” — both figuratively and literally, since backlog resulting from the metering policy led to the creation of numbered lists so migrants know whose turn it is to ask for asylum.

Humanitarian aid volunteer acquitted of illegal harboring charges

A jury acquitted Scott Warren, a volunteer with the human rights group No More Deaths, of all charges this week. The federal government had charged Warren with illegally harboring two undocumented immigrants from Central America. He faced 20 years in prison for allegedly giving the migrants food, water, and a temporary place to stay.

Prosecutors accused Warren of illegally harboring immigrants; his lawyers said he was providing them with “basic human kindness.” A jury couldn’t reach a final verdict during Warren’s initial trial earlier this year — but this time around, jurors made their decision after just two hours, according to the Washington Post.

Warren’s trial was part of a broader federal crackdown that began under then-Attorney General Jeff Sessions, who issued a memo asking prosecutors to “consider for prosecution any case involving the unlawful transportation or harboring of aliens” in April 2017. After Warren’s acquittal, Michael Bailey, the U.S. attorney for Arizona, made it clear that the federal government will continue to make little distinction between humanitarian aid and illegal activity.

“Although we're disappointed in the verdict, it won't deter use from continuing to prosecute all the entry and reentry cases that we have, as well as all the harboring and smuggling cases and trafficking that we have,” Bailey said, according to NPR. “We won't distinguish between whether someone is harboring or trafficking for money or whether they're doing it out of a misguided sense of social justice or belief in open borders.” (As Dara Lind has pointed out, “harboring,” “trafficking,” and “smuggling” are all different things.)

Despite Warren’s victory, his trial could have a chilling effect on similar humanitarian work, especially in light of Bailey’s comments.

Next Destination

Judge to rule on ICE courthouse arrests

Judge Jed Rakoff of the Southern District of New York indicated that he would rule on a lawsuit challenging ICE administrative arrests in and around New York courthouses by the end of the year. The suit was brought jointly by New York Attorney General Letitia James and Brooklyn District Attorney Eric González, who claimed that the immigration agency’s practice of targeting immigrants heading to, inside of, or leaving courthouses interfered with the criminal justice process and violated state sovereignty. The federal government said its practices are unreviewable, given that it is enforcing federal law and its authority supersedes state authority, an argument that the judge has expressed skepticism about.

A federal judge in Massachusetts issued an injunction blocking such arrests in that state while litigation proceeding, but Judge Rakoff’s would be the first final federal ruling on the subject. A ruling against the government could prompt more such challenges around the country; if the government were to appeal, a higher court could set a more generalized precedent. Conversely, a ruling against the state might empower ICE to ignore other such limitations imposed by local authorities.