“Safe” Third-Country Agreements: A Migration Policy Crisis

The International Human Rights Clinic’s work on the growing crisis of enforced disappearances of migrants in transit to the United States has highlighted the systemic failure of Guatemala, Honduras, El Salvador (collectively known as the Northern Triangle countries) and Mexico, along with the United States, to comply with their obligations to refugees and migrants under international and regional law. To end the conditions causing thousands of migrants to disappear, all these countries must engage in regional cooperation to locate the disappeared and provide adequate remedies to their families.

In 2019, the United States entered into several migration agreements with the Northern Triangle countries and Mexico. While these may, on the surface, signal cooperation, a more careful look at the agreements reveals them to be exercises of the disproportionate coercive power of the United States vis-à-vis the other contracting states. A recent lawsuit filed by the ACLU argues that the United States initiated safe third-country agreements with each of the Northern Triangle countries with the principal goal of barring migrants from filing for asylum in the United States. While migrants have a right to file for asylum in the United States, safe third-country agreements essentially shift that obligation to the contracting states, forcing migrants to seek asylum in countries that cannot protect them.

The logic behind safe-third-country agreements is that a person fleeing persecution should not “forum shop,” but apply for asylum in the first contracting state they passed through, where the possibility for a full and fair procedure for determining an asylum claim existed. For example, a Nicaraguan national that traveled to the United States through Honduras is barred from asylum in the United States if it is shown that they could have enjoyed a full and fair determination of their asylum claim in Honduras. The outcome for such Nicaraguans under the safe third-country agreement is their immediate deportation to Honduras. On the part of the United States, the safe third-country agreements with the Northern Triangle countries constitute a declaration that these countries are “safe” for asylum seekers. The Northern Triangle countries, in turn, consent to accepting the returned asylum seekers who crossed into their territory and to entertain their asylum claims. Nonetheless, the grant of asylum is not guaranteed, so unless these countries find that an asylum seeker has a credible fear of returning to their country of origin, asylum will not be granted.

Makeshift camp in Matamoros, Tamaulipas, where approximately 60,000 migrants live in dangerous conditions as they await their hearing before a U.S. immigration judge. Source: NPR.

Under the principle of non-refoulement, — the obligation not to return an asylum-seeker to a territory where s/he would face a risk to life or safety — it is the primary responsibility of the country where asylum is sought to provide asylum seekers with protection. Thus, even where a safe third-country agreement is in effect, a country must first comply with non-refoulement, and refrain from removing migrants to another country where their life or freedom would be threatened. Safe third-country agreements should not be used as a means to divest a country from its obligations to asylum seekers, but rather as a practice to share the burden of refugee protection.

Though it sounds like common sense that a country should not direct asylum seekers to another country ­plagued by violence and systemic instability, this is precisely the effect of these agreements with Honduras, Guatemala and El Salvador. The Northern Triangle countries are rampant with violence and crime, and are often ranked among the countries with the highest homicide rates in the world. On that basis alone, the Northern Triangle countries and the United States violate non-refoulement in the execution and enforcement of safe-third country agreements. For its part, the United States has disregarded the insecurity in these countries and the empirically proven threat to migrants’ lives there. The corollary of this assertion, of course, is that the Northern Triangle countries have failed to provide effective protection to the life or freedom of migrants. It is also questionable whether these countries considered whether such protection could be effectively provided prior to entering into these agreements.

Although the United States is yet to sign a similar agreement with Mexico, both countries have observed the Migrant Protection Protocols, known as the “Remain in Mexico” policy, under which migrants are required to stay in Mexico to await their hearing before a U.S. immigration judge.

In the first thirteen months since “Remain in Mexico” took effect, it is estimated that as many as 60,000 migrants were returned to Mexico to await their asylum hearing. While waiting, migrants live in dangerous and deplorable conditions inside crowded shelters located in areas that the U.S. State Department has classified with a security threat on par with warzones. In that way, Tamaulipas, the same Mexican state that Americans are advised to avoid due to high risk of crime and kidnapping is deemed a safe location for so-called “protection” of migrants. Migrants thus remain at risk from the same harms from which they fled their home countries. Moreover, amid the COVID-19 pandemic, these risks are heightened because migrants lack access to health protection and social support groups. Social distancing is also impracticable in shelters, where the dismal conditions also exposes migrants to other risks, such as animus and discrimination, veiled under the pretext of public health.

Notably, the “Remain in Mexico” policy has caused an uptick in asylum petitions in Mexico, including during the COVID-19 pandemic. So, while the Migrant Protection Protocol formally is not a safe third-country agreement, it operates in the same way to the extent Mexico–whether on its own initiative or not– has allowed asylum seekers to avail themselves of its immigration system. In that sense, the United States yet again exported its asylum obligations to a country that cannot provide effective protection to asylum seekers.

Family awaits asylum hearing in makeshift camp. Source: The Hill.

The dangers faced by migrants forced back by these migration agreements compound the underlying crisis of migrant disappearances. Given the epidemic violence and instability in the region, migrants disappear by the thousands along the migratory route. Between 2006 and 2016, it is estimated that between 72,000 and 120,000 migrants have disappeared in the Northern Triangle countries, Mexico, and the United States. These countries’ inability or unwillingness to cope with migrant disappearances are reflected in their failure to effectively respond to the demands of victims and their families for prompt investigation and repatriation of remains.

Thus, as the Northern Triangle countries, Mexico, and the United States continue to work to address the growing migrant crisis, they should, at a minimum, comply with their non-refoulement obligations and refrain from removing and accepting migrants if their lives or freedom will be at risk. These countries should also engage in more effective regional cooperation to address migrant disappearances and render justice to victims and their families. Specifically, this cooperation should center around the investigation of cases, the prosecution of perpetrators, the repatriation of remains, and the exchange of related information.

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Bio: Eduardo González is a rising third-year student at Boston University School of Law. He grew up in Mexico and in southern Texas. Eduardo has a bachelor’s degree in International Politics from Georgetown University. After graduation, he hopes to continue to give back to the community.

Boston University School of Law's International Human Rights Clinic.