Safe Third Country Agreements with Northern Triangle Countries: Background and Legal Issues
Legal Sidebari
Safe Third Country Agreements with
Northern Triangle Countries: Background and
Legal Issues
January 30, 2020
The Department of Homeland Security (DHS) recently began implementing an agreement with the
government of Guatemala that allows DHS to transfer some asylum seekers to that country instead of
evaluating their claims for protection in the United States. According to a report, DHS had transferred at
least 230 Honduran and Salvadoran asylum seekers to Guatemala under the agreement as of late January
2020. Reports suggest that DHS has contemplated plans to apply the agreement to Mexican asylum
seekers as well, but thus far it appears that only nationals of Honduras and El Salvador have been
transferred to Guatemala under it. The agreement does not apply to Guatemalan nationals,
unaccompanied alien children, and some other categories of aliens.
Agreements of this nature are typically known as “safe third country” agreements (STCAs), from the
heading of the Immigration and Nationality Act (INA) provision that authorizes them. DHS and the
government of Guatemala have opted to call their agreement an “Asylum Cooperative Agreement,”
although DHS acknowledges that such agreements are “alternatively described as safe third country
agreements.” DHS has also signed STCAs with the governments of Honduras and El Salvador. Those
agreements, unlike the Guatemala agreement, have yet to be implemented, but DHS has said that it hopes
to implement the Honduras agreement “within the coming weeks.” At least one lawsuit filed in federal
court challenges the legality of the STCAs and their implementing regulations and ultimately seeks an
injunction blocking their implementation.
The STCAs are the latest in a series of Trump Administration policies that have changed the processing of
asylum seekers at the U.S.-Mexico border. Earlier policies currently in effect include metering, the
Migrant Protection Protocols (MPP, otherwise known as the “remain in Mexico” policy), and the July 16,
2019 interim final rule (IFR) rendering aliens ineligible for asylum if they transit through third countries
to reach the southern border. A CRS infographic illustrates how these policies fit together with the
STCAs. At least two key features distinguish the STCAs from the earlier policies. First, under the
Guatemala agreement (the only STCA currently in effect), U.S. immigration officials will not consider an
alien’s claim for asylum or related protections; instead, so long as no exceptions or limitations apply,
officials will send the alien to pursue relief in Guatemala. The earlier policies, in contrast, require U.S.
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immigration officials to consider the alien’s claims, albeit under modified rules. Second, the Guatemala
agreement contemplates that U.S. officials will remove aliens to a third country rather than to their
country of origin or last habitual residence. Under the MPP and July 16, 2019 IFR, in contrast, orders of
removal generally result in removal to the alien’s country of origin.
Legal Background on STCAs
In general, any alien arriving or physically present in the United States may apply for asylum under the
INA. This general rule has exceptions, however, including one provision, 8 U.S.C. 1158(a)(2)(A), that
authorizes the executive branch to enter into “bilateral or multilateral agreement[s]” for the removal of
asylum seekers to third countries. Those agreements must satisfy two primary requirements: (1) the third
country must provide access to “full and fair” asylum procedures; and (2) must be a place “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” (i.e., where the alien would not face persecution).
Until recently, the executive branch had used this statutory authority to execute one STCA: an agreement
with Canada, signed in 2002 and implemented two years later by regulation (following notice and
comment procedures). That agreement has a narrow scope. It applies only to aliens (other than nationals
of the United States or Canada) who present themselves at ports of entry on the U.S.-Canada land border
and to aliens in transit during removal from the U.S. or Canada. The agreement does not cover aliens who
cross the border surreptitiously between the United States and Canada. (Reports indicate that this feature
of the agreement has influenced migration trends—aliens in the United States who wish to apply for
asylum in Canada sometimes attempt to cross the border between ports—and that Canada wishes to
amend the agreement to cover such aliens.) The U.S.-Canada agreement also has several exceptions,
perhaps most notably for family ties. In many cases, under the terms of the agreement, an asylum seeker
arriving in the United States from Canada cannot be removed to Canada if he or she has close relatives in
the United States, and vice versa. The U.S.-Canada STCA has not been the subject of significant legal
challenges in U.S. federal courts. In Canadian courts, it has been the subject of lawsuits, including one
pending case in which challengers argue that the United States has become unsafe for asylum seekers,
primarily because changes in asylum policies make it more likely those persons will be repatriated to a
third country.
Guatemala, Honduras, and El Salvador STCAs
DHS signed the Guatemala, Honduras, and El Salvador STCAs between July and September 2019. Later,
on November 19, 2019, DHS and the Department of Justice issued joint regulations establishing the
procedures that immigration officials must follow when applying these STCAs—and any future STCAs—
to individual asylum seekers. (These implementing regulations do not govern the U.S.-Canada STCA,
which remains governed by a regulation promulgated in 2004.) Even with these regulations in place,
however, at least two additional requirements imposed by the text of the STCA and the preamble to the
regulations had to be satisfied before transfer of asylum seekers could begin under any of the agreements.
First, the parties to each agreement must cause it to enter into force through an “exchange of notes” to
indicating compliance “with the necessary domestic legal procedures.” Second, the Attorney General and
the DHS Secretary must determine that the asylum procedures within the other STCA party are “full and
fair” within the meaning of the INA.
The United States appears to have completed the implementation steps for the Guatemala agreement. The
agreement entered into force through an exchange of notes on November 15, 2019, according to a
Department of State notice. And the Attorney General and DHS have determined that Guatemala provides
access to “full and fair” asylum procedures, according to a news report, although a lawsuit challenging the
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legality of the STCAs notes that the Administration has not made that determination public. DHS
reportedly began transferring some nationals of Honduras and El Salvador to Guatemala under the
agreement in late November.
As for the Honduras STCA, Acting DHS Secretary Wolf said on January 9, 2020, that the United States
and Honduras had “finalized the joint implementation steps” necessary to implement the agreement, but it
remains somewhat unclear whether the exchange of notes has occurred and whether DHS and the
Attorney General have determined that Honduras has “full and fair” asylum procedures. The Acting
Secretary indicated that implementation could begin “in the coming weeks.” With respect to the El
Salvador STCA, implementation may be further off, as there have not been news reports suggesting
progress on the formal requirements. For now, it appears that transfers of asylum seekers are occurring
only under the Guatemala agreement.
The terms of the Guatemala STCA create exceptions for three categories of aliens: (1) nationals of
Guatemala; (2) aliens who hold U.S. visas or who do not require visas to apply for admission to the
United States (such as aliens eligible for the visa waiver program); and (3) unaccompanied alien children.
A fourth, catchall exception comes from the text of the INA and is reflected in the STCA regulations:
DHS will not remove an alien to Guatemala (or to any other recipient country under an STCA) if DHS
determines that “it is in the public interest for the alien to receive asylum in the United States.” The
regulations state that DHS’s United States Citizenship and Immigration Services (USCIS) officials will
make this public interest determination “in the exercise of unreviewable discretion.”
DHS Procedures for transfers under the STCAs
Under the provisions of the STCA implementing regulations, immigration officials may apply the
Guatemala STCA (and other STCAs that go into force in the future) in two types of removal proceedings:
(1) expedited removal proceedings, which are summary proceedings that can result in removal without
hearings in immigration court; and (2) formal removal proceedings in immigration court.
Expedited Removal
Expedited removal typically applies to aliens encountered at or near the border without valid entry
documents. When an alien in expedited removal claims asylum or a fear of persecution in his or her
country of origin, DHS’s Customs and Border Protection must typically refer the alien to an asylum
officer, who then conducts a credible fear interview to screen the alien’s potential eligibility for asylum or
related protections. If a credible fear is found, the alien will be transferred to formal removal proceedings
where claims for relief may be pursued.
The STCA regulations alter the procedures that the asylum officer follows. They provide that, before
conducting a credible fear interview, the asylum officer must determine whether the alien is subject to an
STCA and whether any exceptions apply (such as the exceptions for visa holders and unaccompanied
alien children, or the catchall “public interest” exception). If the alien affirmatively states that he or she
fears persecution or torture in the recipient country, then the asylum officer will assess whether the alien
has demonstrated that it is “more likely than not” that the alien will face persecution or torture there. (If
that threshold is met, as explained further below, the asylum officer continues with the credible fear
interview under standard expedited removal proceedings.) The regulations do not require asylum officers
to proactively ask aliens whether they fear persecution or torture in the recipient country, but it does
require officers to give aliens written notice that they may request a fear assessment affirmatively.
The STCA regulations contain arguably unique features. Under them, aliens may not consult with counsel
before or during the asylum officer’s assessment of whether the alien may be removed to a third country
under the Guatemala STCA (or any other STCAs that go into effect in the future). By comparison, both
the regulations governing the U.S.-Canada STCA and the standard credible fear process (outside the
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STCA context) do provide aliens an opportunity to consult counsel. Also, an asylum officer’s decision
that an alien may be removed to Guatemala under the STCA must be reviewed by a supervisory asylum
officer but is not appealable to an immigration judge. By comparison, in standard credible fear
proceedings (again, outside the STCA context) negative credible fear determinations are subject to
immigration judge review. Removal orders under the U.S.-Canada STCA are not subject to such review,
however.
If DHS determines that an alien should be transferred to a third country under an STCA, the regulations
provide that an alien may “withdraw his or her request for asylum” to avoid this result. The preamble of
the implementing regulations suggests that withdrawing an asylum request, for these purposes, entails
accepting an order of removal to the alien’s country of origin.
If the asylum officer determines that the alien may not be removed to a third country—because an STCA
does not apply, because the alien qualifies for an exception to the STCA, or because the alien has
demonstrated a likelihood of persecution in the receiving country—the asylum officer carries on with
standard expedited removal procedures by conducting a credible fear interview. (At this point, a different
regulation—the July 19, 2019 IFR establishing an asylum ineligibility for third-country transit—may kick
in to make it more likely that the proceedings will result in an order of expedited removal to the alien’s
country of origin or last habitual residence.) A flowchart at the end of the USCIS training materials
illustrates the sequence of decisions under the STCA regulations.
Formal Removal Proceedings
The STCA regulations also establish that the Guatemala STCA will apply in formal removal proceedings
in immigration court. Formal removal proceedings often follow expedited removal proceedings because,
as discussed above, DHS must refer aliens who establish a credible fear of persecution to formal
proceedings. Aliens may also be placed directly into formal proceedings, either because they were not
eligible for expedited removal or because DHS opted not to employ expedited removal.
If an alien in formal proceedings applies for asylum, under the STCA regulations the immigration judge
may determine that the alien should be removed to a third country under an applicable STCA. In making
this determination, the immigration judge must consider the same three questions that the asylum officer
considers: (1) does an STCA apply to the alien?; (2) does the alien qualify for an exception to the STCA?;
and (3) has the alien demonstrated he or she will likely face persecution or torture in the receiving
country? But the STCA regulations do not grant the immigration judge jurisdiction to consider the
catchall “public interest” exception. Instead, they reserve consideration of that exception for DHS and
allow DHS to file notice in immigration proceedings when it decides to invoke the exception.
Unlike the procedure that the STCA regulations set up before the asylum officer, the alien does have a
right to counsel retained at no expense to the government in formal removal proceedings. Thus, aliens
facing removal to Guatemala under the STCA in expedited proceedings will not have access to counsel (at
least not under the terms of the STCA regulations), but aliens facing such removal under the terms of the
STCA in formal proceedings will have access to such counsel as they choose and are able to retain.
Legal Issues
The Guatemala STCA and the implementing regulations raise a number of legal questions. Does
Guatemala provide access to “full and fair” asylum procedures within the meaning of the INA? Do the
procedures set out in the regulations suffice to ensure that aliens removed to Guatemala under the
agreement will not suffer persecution there? Does the Administration’s implementation of the agreement
violate the Administrative Procedure Act (APA), either because it is arbitrary and capricious or because
DHS and DOJ promulgated the implementing regulations without notice and comment? (The Honduras
and El Salvador STCAs would raise similar questions if they go into effect.) A lawsuit filed in the United
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States District Court for the District of Columbia raises these and other issues. Plaintiffs contend, among
other things, that Guatemala does not have an asylum system capable of adjudicating a new stream of
claims fairly, that asylum seekers are at risk there due to dangerous conditions, and that the implementing
regulations violate the INA and the APA by denying aliens the opportunity to consult with counsel before
removal to Guatemala and by requiring them to raise their fear of persecution in Guatemala affirmatively.
(The government is not scheduled to file a brief in the case stating its arguments on these issues until
March 25, 2020.)
The lawsuit will face a threshold issue: do federal courts have jurisdiction to review the legality of the
STCA and the implementing regulations? The INA provides that “[n]o court shall have jurisdiction to
review any determination of the Attorney General” under the statutory exceptions to an alien’s ability to
apply for asylum, which include the safe third country provision. The district court will have to decide if
this provision precludes review of the Administration’s decisions to sign the Guatemala agreement and
issue regulations for its implementation, as opposed to merely barring review of individual decisions to
remove particular aliens to Guatemala under that agreement. In lawsuits challenging the legality of the
Trump Administration’s termination of designations of some countries for Temporary Protected Status
(TPS), a federal district judge has held that the terminations are subject to review under the APA despite a
similarly worded bar on judicial review of terminations of TPS designations. The district court reasoned
that the bar did not preclude review of the “general policies or practices” employed by the Executive in
making its determination. If the district court in the STCA challenge follows the same reasoning, it could
determine that it may review the merits of the case notwithstanding the INA limitation on jurisdiction.
The parties in the STCA lawsuit have agreed upon a summary judgement briefing schedule that concludes
on April 29, 2020. The plaintiffs have indicated that they will not seek a preliminary injunction blocking
implementation of any of the STCAs before the court rules on summary judgment. Thus, a ruling in the
case about the legality of the STCAs and their implementing regulations is not likely before May 2020 at
the earliest.
Author Information
Ben Harrington
Legislative Attorney
Disclaimer
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