Trump’s Safe Third Country Agreement With Guatemala Is a Lie

Forcing migrants to claim asylum in Guatemala will further destabilize that country and harm migrants.

Guatemalan migrants use makeshift rafts to cross the Suchiate River from Tecún Umán in Guatemala to Ciudad Hidalgo in Chiapas State, Mexico, on July 22.
Guatemalan migrants use makeshift rafts to cross the Suchiate River from Tecún Umán in Guatemala to Ciudad Hidalgo in Chiapas State, Mexico, on July 22. Alfredo Estrella/AFP/Getty Images

On July 26, the United States and Guatemala entered into what is known as a safe third country agreement. The agreement, which is primarily aimed at preventing migrants from El Salvador and Honduras from reaching the United States, requires those who travel through Guatemala to seek asylum there first. There’s a major problem, though. Far from a safe third country, Guatemala is itself stricken by violence, poverty, and corruption that have pushed hundreds of thousands of people to flee its borders. In fact, in the last year, more of the migrants apprehended at the United States’ southern border come from Guatemala than from anywhere else. Rather than easing the region’s humanitarian crisis, the new agreement will deepen instability in Guatemala and inflict incalculable harm on desperate migrants.

The agreement with Guatemala is part of broader attempt by the administration of President Donald Trump to render almost all migrants ineligible for asylum in the United States. Beyond trying to strong-arm Mexico into a similar agreement (an effort Mexican President Andrés Manuel López Obrador has thus far resisted), the U.S. administration also issued a rule that disqualifies any person who transits through a third country and fails to apply for asylum there from then applying in the United States. Last week, that rule was blocked by U.S. District Judge Jon Tigar, who wrote, “We don’t see how anyone could read this record and think those are safe countries,” referring to Mexico and Guatemala. Other efforts to stanch the flow of migrants include the “Remain in Mexico,” program, implemented in January, which returns apprehended migrants to Mexico to await processing of their asylum claims, and metering, which limits the number of migrants who can approach U.S. border outposts to request asylum in any given day.

Under the U.S. Immigration and Nationality Act, migrants have the right to apply for asylum in the United States unless they can be removed to a safe country via multilateral or bilateral agreement. To qualify as safe, a country must ensure migrants’ safety and provide “access to a full and fair procedure for determining a claim to asylum.”

Guatemala does not qualify. For one, it falls far short in its ability to provide for the security of migrants. The U.S. State Department’s Overseas Security Advisory Council said earlier this year that Guatemala “remains among the most dangerous countries in the world,” with an “alarmingly high murder rate.” The country is plagued by gangs, organized crime, and gender-based violence. It is unable to provide for its own citizens, some 236,000 of whom were apprehended at the U.S. border in first nine months of fiscal year 2019.

Guatemala also lacks a robust asylum system and experience processing claims, as refugees have infrequently petitioned for asylum there. According to the United Nations High Commissioner for Refugees, Guatemala received 257 asylum applications last year, only a handful of which were accepted. The U.S. State Department’s own 2018 Human Rights Report on Guatemala cited the UNHCR, which “reported that identification and referral mechanisms for potential asylum seekers were inadequate. Both migration and police authorities lacked adequate training concerning the rules for establishing refugee status.”

The advocacy group Refugees International late last month lamented the Guatemalan government’s inability “to provide even a modicum of services or security for returned asylum seekers—who would likely be in highly vulnerable situations for extended periods.”

Guatemalan President Jimmy Morales negotiated the agreement in secrecy, presumably to deflect criticism. Yet rumors of the coming arrangement sparked widespread opposition in Guatemala and prompted a legal challenge. On July 14, just a day before Morales was due in Washington for the signing, the country’s Constitutional Court ruled that the safe third country deal required legislative approval.

On July 23, an enraged Trump ramped up the pressure, tweeting that “Now we are looking at the ‘BAN,’ Tariffs, Remittance Fees, or all of the above.” Such punitive measures—banning Guatemalans from entering, slapping heavy tariffs on the country’s exports, or charging fees for Guatemalans in the United States to send money to their relatives abroad—would have catastrophic consequences. The United States receives nearly 40 percent of Guatemala’s exports, and remittances make up some 12 percent of the country’s GDP. Days after Trump’s threat, the countries signed the agreement.

For his part, Morales has declined to characterize the accord as a safe third country agreement, calling it a “Cooperation Agreement” instead, apparently to circumvent the Constitutional Court’s injunction. In return for its cooperation, Guatemala received a vague commitment to increased temporary agricultural visas for its nationals. The more compelling motivation for Morales, who is under investigation for illicit campaign financing, is to court the goodwill of the United States, which has been muted about his efforts to thwart the rule of law, including by barring the head of the U.N.-backed anti-corruption commission that is investigating Morales and his family from returning to the country.

Railroading the agreement through the process is not just bad diplomacy—it also threatens to further undermine democracy in Guatemala.

But railroading the agreement through the process on both sides is not just bad diplomacy—it also threatens to further undermine democracy in Guatemala. As Elizabeth Oglesby, of the Center for Latin American Studies, wrote in the Hill, “by pressuring Guatemala’s government to once again defy a court order, Trump’s threats are eroding Guatemala’s hard-fought democratic gains.” Civil society groups have worked painstakingly for decades to strengthen Guatemala’s institutions.

This agreement will almost certainly face legal challenges in the United States as well, and some lawmakers, including Democratic Reps. Jerry Nadler, Zoe Lofgren, and Pramila Jayapal, are already pushing back. Meanwhile, as Trump focuses his energy on dismantling the asylum system, he has cut off development aid aimed at ameliorating the factors driving migration from Guatemala, Honduras, and El Salvador. Although Trump may temporarily keep asylum-seekers from reaching the border, his approach will ultimately intensify the insecurity, poverty, and instability that will continue to drive migrants northward.

Lauren Carasik is a clinical professor of law and the director of the International Human Rights Clinic at Western New England University School of Law.

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