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A New Rule That Breaks Old Systems


On July 15, 2019, the Trump Administration published its “Interim Final Rule on Asylum Seekers,” (see 8 CFR Part 208, and 8 CFR Parts 1003, 1208). Not only did the Administration skip the legally required public comment period when issuing the new rule, but the rule has been widely criticized as illegal under both domestic and international law. Under this country’s Immigration and Nationality Act of 1965, a noncitizen who is physically present in the United States whether or not at a designated port of arrival can apply for asylum. A qualification on this is if a noncitizen has traversed other countries where he/she did not apply for asylum but which had bilateral or multilateral safe third country agreements with the United States.

This is the key. The United States currently has only one safe third country agreement, and it is with Canada. The Trump Administration is seeking safe third country agreements with Mexico and Guatemala, but despite Trump’s strong-arm tactics, no agreement is in place with either country. Trump threatened Mexico with tariffs back in June if its government did not better control its borders with the U.S. and Guatemala. The Trump Administration gave Mexico 45 days—a deadline which is fast approaching—to drastically decrease the flow of migrants into the U.S. Meanwhile, Trump began pressuring President Jimmy Morales of Guatemala to enter into a safe third country agreement with the U.S. which would require any migrants from Central and South America seeking asylum who pass through Guatemala to seek asylum there rather than the U.S. A meeting between Morales and Trump was planned for July 15, 2019.

On July 14, 2019, the eve of the meeting between the two presidents, Guatemala’s Constitutional Court issued an injunction prohibiting President Morales from entering into a safe third country agreement with the United States. Consequently, Morales cancelled the meeting for the next day. Undeterred, Trump went ahead and issued the new rule on Asylum Seekers as if the U.S. and Guatemala had entered into the agreement. Under the new rule, asylum seekers must apply to any country through which they pass that signed the 1951 Refugee Convention, whether those countries are “safe” or not. The Refugee Convention system was establishment after WWII to aid with the resettlement of refugees and migrants world wide.


Because land routes from elsewhere in Latin America to the U.S. all run through Guatemala and Mexico, as a practical matter the new rule bars asylum to nearly all Latin American asylum seekers who do not apply in either of those countries or another country through which they traveled. But Guatemala—and to a large extent Mexico—does not qualify as a “safe” country. It might be safer than Honduras, El Salvador, or Venezuela, but that does not mean it is safe; Guatemala’s murder rate is still among the world’s highest, and the U.S. State Department’s current travel advisory warns that violent crime, murder, gang activity and narcotics trafficking are common, and that “local police may lack the resources to respond effectively to serious criminal incidents.”

Another requirement of qualification as a “safe third country” is that asylum seekers have access to full and fair procedures for determining a claim to asylum. If the U.S. succeeds in requiring would-be asylum seekers to apply in Guatemala, that country’s system would quickly be overwhelmed and unable to process any claims.

Of course, the United States’ system is currently overwhelmed, with a backlog of asylum claims that could take years to process. But immigration experts and lawyers say that the policies of the Trump Administration so far have only exacerbated the problem; the fear that the Southern border will close has caused more migrants to attempt to cross it now. In addition, the cut in aid to the so-called Northern Triangle countries in Central America—Guatemala, El Salvador and Honduras—has only worsened conditions in those countries and led to more migration northward.

On July 26, 2019, in apparent defiance of his country’s prohibition against it, President Jimmy Morales of Guatemala entered into an agreement with President Trump and the U.S. that requires asylum seekers who travel by land to the U.S. via Guatemala to seek asylum in Guatemala. Guatemalan and Mexican asylum seekers would not be affected. The agreement was reached after President Trump threatened Guatemala with punitive tariffs, a travel ban and taxes on the remittances sent home by Guatemalan migrants in the U.S. to family members in their home country.


The Trump Administration was sued in two federal courts to stop the new Interim Final Rule on Asylum from going into effect. The ACLU sought a preliminary injunction in the Northern District of California. U.S. District Court Judge Jon S. Tigar issued a nationwide preliminary injunction against the rule on July 24, 2019; the government will likely appeal the ruling to the Ninth Circuit.

Earlier the same day on the opposite coast, D.C. District Court Judge Timothy J. Kelly refused to block the rule. An appeal of that ruling would go to the D.C. Circuit Court. If the two Circuit Courts were to issue conflicting opinions and a conflict between Circuits were to exist, then the U.S. Supreme Court could hear the case.

Legal challenges to the agreement reached between Guatemala and the U.S. will ensue in both countries. In Guatemala, the challenges will likely center on whether President Morales had the authority to enter into the agreement after the Constitutional Court issued an injunction against such action. In the United States, the agreement cannot go into effect until and unless the Justice Department certifies that Guatemala has a “full and fair” asylum system, and is able to protect asylum seekers sent to it from other countries should the U.S. sends them there. The current Guatemalan asylum system has been described by the Migration Policy Institute as “embryonic;’ Guatemala would need a huge investment of resources and expertise to establish an operational asylum system in an extremely short period of time in order to be able to process asylum claims as a functioning safe third country. Otherwise, there is little chance that enough asylum seekers could be returned to Guatemala to have any impact on the immigration problems in the U.S.


If you or someone you know has questions regarding their legal status, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights.

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