For more than 20 years, a little-noticed provision of U.S. law allowing for the transfer of asylum seekers to a third country for processing lay dormant, until late last month when the United States and Guatemala signed an agreement that essentially replicates Australia’s so-called “offshore-processing” system.

The heading “safe third country” is affixed to the section of the U.S. Code that purportedly provides the domestic legal basis for the bilateral deal with Guatemala – 8 U.S.C. § 1158(a)(2)(A) – but the agreement signed on July 26 is definitively not a “safe third country” accord.

Instead, the U.S.-Guatemala agreement is an asylum-seeker transfer arrangement that, as Susan Gzesh observed in an earlier piece for Just Security, bears a striking resemblance to Australia’s “regional processing” agreement with Nauru, a tiny island country in Micronesia where Australia sends those attempting to travel to the country by boat seeking asylum. This “offshore processing” regime has been a self-inflicted humanitarian disaster for Australia, leaving countless genuine refugees with serious physical and mental health problems and resulting in the deaths of many others.

Understood in that context, the U.S.-Guatemala agreement represents a far different choice of policy direction than a “safe third country” agreement. This is particularly so in light of the recent election of Alejandro Giammettei as the new president of Guatemala, though he has said that he does not support the agreement. Giammettei is the former head of the country’s prison system, and his rhetoric and record have raised serious human rights concerns.

Every State is responsible for ensuring compliance with its legal obligations vis-à-vis all individuals within its territory or over whom it exercises authority or control (jurisdiction). In the case of asylum-seekers, a State’s international law obligations include, but are not limited to, the requirement not to return an individual to a place where they risk persecution or other serious harm (non-refoulement), the prohibition on penalizing asylum seekers for illegal entry or presence, and the right to seek asylum.

The “safe third country” concept, which first found multilateral expression among European States in the 1990 Convention Applying the Schengen Agreement and subsequent 1990 Dublin Convention, is contested in international law. The concept is said to apply when a person travels through a country where they could have applied for international protection, but either did not apply or sought protection and a determination was not made. The essential premise is that the country in question is capable of providing international protection and is willing to do so (or “is able and willing to provide international protection”). There may be numerous legitimate reasons for not seeking protection in the third country, including the lack of effective protection, or even the risk of other serious harm.

The “safe third country” concept certainly does not apply to a third country through which the asylum-seeker has not transited and with which they have no relevant connection, simply because they fit within a class of individuals that a country refuses to consider for protection. This is what Australia has done on Nauru and it is what the United States is seeking to do with Guatemala.

The Australia Case

Australia adopted a process of transfer and “offshore processing” of asylum seekers arriving by sea beginning with the “Pacific Solution” from 2001 until 2007. After a brief hiatus, Australia renewed the policy in August 2012 and has adopted increasingly harsh deterrent measures in an attempt to stop relatively small numbers of asylum-seekers arriving by sea. Though Australia’s “offshore processing” regime includes both Nauru and Papua New Guinea’s Manus Island, the Manus Island center closed in October 2017 after the Papua New Guinea Supreme Court ruled the forced transfer and detention of asylum seekers to be unconstitutional.

From 2012 until 2014, Australia transferred more than 2,000 persons, including children, to mandatory, indefinite detention in Nauru for what was euphemistically called “offshore processing” of their refugee claims, but with no thought given to lasting solutions. The overwhelming majority of these individuals (well over 80 percent) have been found to be genuine refugees primarily fleeing from Iran, Pakistan, Afghanistan, Sudan and Iraq. Today, several hundred asylum-seekers and refugees remain on Nauru. Although the detention centers have closed, asylum-seekers and refugees have mostly been transferred to the Nauruan community, but still face restrictions on their movement as well as significant medical, mental health and other safety risks.

The overarching policy aim of the transfer, detention, and offshore processing arrangements, as well as Australia’s more recent military-led approach to intercepting and turning back boats, is deterrence. Yet, the length to which successive Australian governments have gone in the name of deterrence has blurred into cruelty. For example, though numerous refugees and asylum-seekers have attempted suicide or suffer from serious medical conditions for which they cannot receive proper treatment in Nauru, Australian Prime Minister Scott Morrison and his government are now attempting to repeal Medevac legislation meant to temporarily transfer those in need of medical treatment to Australia, arguing that medical transfers undermine the deterrence policy.

An American Nauru?

In the United States, the “safe third country” provision underpinning the recent Guatemala agreement was only one of a slate of changes enacted under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. Set against the background of a political discourse immersed in the language of an immigration “crisis” and “deterrence through enforcement,” Congress implemented sweeping changes to the asylum framework, and President Bill Clinton signed them into force.

The legislative history surrounding IIRIRA and other asylum “reform” bills introduced during that 104th Congress provides support for the idea that the “safe third country” provision was never intended to encompass a broad transfer arrangement. With IIRIRA, Congress sought to both “reform the legal immigration system” – of which asylum was part – as well as “improve deterrence of illegal immigration to the United States.” Yet, the section of the law that arguably has the most potential to fundamentally alter the nature of the relationship between the U.S. domestic asylum framework and international legal obligations appears to have flown largely under the radar.

At the time, lawmakers primarily focused on the effects of “expedited removal” and the “one-year filing deadline” on asylum law. However, in opposing an amendment introduced by Sen. Patrick Leahy (D-Vt.), Sen. Alan Simpson (R-Wyo.) noted the “discussion about persons not being permitted to apply for asylum if they do not travel directly from the country in which they allegedly have a fear of persecution.” Simpson observed that European countries had begun to resort to “safe third country” laws and that “those who come from a safe country where they could have obtained asylum . . . they stop where it is safe … not select or choose [to leave] one or more safe countries in order to enter the United States ….” Congress clearly had in mind developments in Europe in the early 1990s aimed at limiting secondary movements of asylum seekers and allocating responsibility for adjudicating asylum claims among States moving towards increasingly open internal borders.

Though United Nations High Commissioner for Refugees recommended that the “safe third country” provision “be deleted or modified in light of international guidelines, the wider context of global responsibilities for refugee protection, and principles of international responsibility sharing,” members of Congress spent little time debating the “safe third country” provision. Congress then voted to pass the 2,000-plus-page bill containing the changes that apparently not one member read in its entirety.

What the legislative history of IIRIRA suggests is that Congress intended the statutory change to encompass only an actual “safe third country” agreement – one that applies to asylum seekers who have travelled through a “safe country where they could have obtained asylum.” Yet, Article 4(1) of the U.S.-Guatemala agreement makes clear that the United States will not take “responsibility for determining and concluding requests for protection within its territory” for anyone arriving at the U.S.-Mexican border without a visa, regardless of whether they seek protection at a port of entry or between ports of entry, subject to a public interest exception (Article 5). Thus, any individual seeking protection who arrives at the border without a visa (except Guatemalan citizens) – regardless of whether they travelled through Guatemala – will be transferred to Guatemala for evaluation of the protection claim.

Similar to the 2013 Memorandum of Understanding between Australia and Nauru, the U.S.-Guatemala agreement designates an entire class of individuals as ineligible for protection in the country, based upon their manner of arrival and opens the door to the transfer of a large category of asylum-seekers who have zero connection to Guatemala.

The U.S.-Guatemala agreement runs afoul of various international legal obligations, including those of non-refoulement, non-penalization, and the right to seek asylum. Furthermore, in targeting only asylum seekers arriving without a visa, the agreement represents not only another point at which the U.S. has attempted to transfer the concept of “international protection” from the category of “legal immigration” to “illegal immigration.” The agreement represents the point at which the U.S. has attempted to outsource its responsibility to provide international protection to a third country with no connection to those seeking asylum and with no thought given to lasting solutions.

Photo credit: View of a Guatemalan migrant’s identification wristband upon his arrival at the Air Force Base in Guatemala City after being deported from the United States on July 31, 2019 – Orlando Estrada/AFP/Getty Images