Nicole Narea, Vox, November 20, 2019

The Trump administration began to deport migrants seeking protection at the southern border back to Guatemala on Wednesday, the first migrants to be sent back under a series of agreements brokered earlier this year that make it all but impossible for Central Americans to seek asylum in the United States.

The agreements, which the US has signed with Guatemala, El Salvador, and Honduras, require migrants on their way to the US to apply for protections in those countries first.

If they fail to do so, US immigration authorities will send them back to those countries, collectively known as Central America’s Northern Triangle.

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A new rule implementing the agreements was published this week. Only the agreement with Guatemala has gone into effect so far, as BuzzFeed first reported, and so far it has affected a relatively small number of single adult migrants, though the administration has not released an official count. But the agreements represent an unprecedented departure from the US’s tradition of protecting vulnerable populations, all in the service of President Donald Trump’s goal of driving down the number of migrants seeking refuge at the US southern border.

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Most migrants seeking asylum in the US travel through Mexico on their way from the Northern Triangle. The deals resemble “safe third country agreements” — a rarely used diplomatic tool that requires migrants to seek asylum in the countries they pass through by deeming those countries capable of offering them protection — although the Trump administration has been reluctant to use that term, perhaps because the countries it’s dealing with cannot be considered safe.

Until recently, the US had this kind of agreement with just one country: Canada. The administration is continuing to pursue similar agreements with Mexico and Panama.

A separate Trump administration rule prevents migrants from being granted asylum if they passed through any country other than their own before arriving in the US, effectively meaning asylum seekers from any country but Mexico are ineligible for asylum. (Some migrants are still eligible for other protections that would allow them to stay in the US under that rule.)

Taken together, these policies achieve Trump’s objective of reducing overall legal immigration levels by putting asylum almost out of reach for migrants arriving at the southern border.

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The US had just one safe third country agreement — until recently

Migrants can apply for asylum in the US if they face “credible fear” of persecution in their home countries on account of their race, religion, nationality, political opinions, or membership in a “particular social group,” such as the LGBTQ community. Asylees can obtain social services through refugee resettlement agencies and apply for a green card one year after they are granted asylum.

Safe third country agreements were created as a way for countries to share the responsibility of aiding asylum seekers, always with their welfare in mind. In 1991, the United Nations High Commissioner for Refugees invited such agreements where they would result in “clearer identification of those in need of protection” and “international cooperation in the provision of this protection and the realisation of lasting solutions.”

These agreements are usually signed by two countries. Migrants must apply for asylum in the first of those two countries that they pass through or else they could be sent back to the other country.

In the US, the Immigration and Nationality Act lays out two conditions for the agreements: they must be with countries where an immigrant’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 they would have “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”

Since safe third country agreements are not considered treaties, which must be ratified by Congress, the president can sign them unilaterally.

The US’s only existing safe third country agreement is with Canada. Drafted in cooperation with international human rights organizations and signed in 2002, the agreement acknowledges that the US and Canada both have robust processes under which asylum seekers can petition for protections and have strong traditions of welcoming asylum seekers.

But even that agreement has not been immune to critique. Canadian advocates filed a lawsuit in July 2017 challenging the agreement, arguing that Trump administration policies have made the US unsafe for asylum seekers. That ongoing suit claims that, in the US, asylum seekers are “unjustly detained” and are at risk of being forcibly returned to countries where they could be subject to persecution, torture, and death.

The European Union also reached a similar agreement with Turkey in March 2016 after migrants largely from the Middle East and Africa, including Syrians displaced by ongoing civil war, had arrived in record numbers — over 1 million in 2015, according to the International Organization for Migration. The agreement allowed Greece to deport migrants who had passed through Turkey unless they had already applied for asylum in Greece. (Few deportations, however, actually took place because migrants started applying for asylum as soon as they arrived in Greece.)

Trump, meanwhile, has sought to restrict asylum even more broadly, issuing a rule in July that strips asylum eligibility from anyone at the southern border who passed through another country en route to the US. There are limited exceptions to the rule, but, for the most part, it effectively closes the door on seeking asylum at the southern border.

Karen Musalo, founding director of the Center for Gender and Refugee Studies and one of the attorneys challenging the rule in federal court, said the rule has effectively allowed the Trump administration to unilaterally block Central American migrants from obtaining asylum.

But also signing safe third country agreements with each country individually gives the US another tool to deflect migrants. It could be the administration’s fallback option if a court strikes down its asylum rule in ongoing legal challenges. Alternatively, it could be used to send migrants to countries other than their own if their governments refuse to cooperate with the US in facilitating their deportation.

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Central American countries are under pressure to sign safe third country agreements

In June, the administration threatened to impose tariffs on all Mexican goods if Mexico did not assist in curtailing the number of migrants showing up at the US southern border. But with border arrests on an apparent decline, Mexico seems to have fulfilled Trump’s wishes and may not feel obligated to take the extra step of signing a safe third country agreement. Despite initially being open to discussions of such an agreement, the Mexican foreign minister Marcelo Ebrard dismissed the prospect outright on September 10.

Trump announced in July that the US had reached a safe third country agreement with Guatemala, though it has yet to be ratified by the Guatemalan government. As part of the agreement, the US offered to expand and streamline the H-2A temporary agricultural visa program for Guatemalan citizens, promising to spur what Trump described as a “new era of investment and growth.”

The Guatemala Constitutional Court initially stopped the agreement from going into effect. After the ruling, Trump suggested he would retaliate by blocking all Guatemalan immigrants and introducing a new tax on their remittances. The agreement has since been implemented.

The agreement with El Salvador, which is similar to the one with Guatemala, says that the US “intends to cooperate with El Salvador in order to strengthen El Salvador’s institutional capacities.” As part of that, the US will invest in El Salvador and work on a way for about 200,000 Salvadorans who have lived in the US for about two decades with temporary legal immigration status to remain in the country permanently, McAleenan and Chancellor of the El Salvador Ministry of Foreign Affairs Alexandra Hill told reporters.

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