Safe ‘third country rule’ isn’t actually safe for asylum seekers
A new rule recently went into effect that makes migrants crossing the southern border ineligible for asylum in the United States if they pass through another country on the way here. There are three exceptions to the rule:
1. Transit countries that are not parties to certain international treaties
2. Victims of human trafficking
3. People who have applied for asylum in a third country and been rejected
This rule aims to bar asylum claims by people fleeing El Salvador, Honduras and Guatemala who usually pass through one or more countries (at least Mexico) en route to the United States.
While people have referred to this as a “safe third country rule” and discussed it in the context of negotiations for “safe third country agreements” with Mexico and Guatemala, there is one crucial difference that has been overlooked: The new regulation does not require the transit country to be “safe.” In fact, the word “safe” does not appear in the regulation at all.
The government may be assuming that a transit country is safe simply because it is a party to an international treaty that prohibits people from being returned to a place where they risk persecution or torture, but that assumption would be totally unfounded. Safety must be ensured in practice, not just under formal obligations.
Under the UN High Commissioner for Refugees’ interpretation of safe third country rules, whether a country can be considered safe for a given person requires an individualized determination. The asylum seeker must also have a meaningful connection to the third country that makes staying there reasonable, not just pass through it. The new regulation ignores these limitations, which have been accepted by the EU and reinforced by the European Court of Human Rights.
The U.S. government claims that this new rule will prevent people who are abusing the asylum system from clogging up our immigration courts. But the rule won’t actually reduce the caseloads of overloaded judges; in fact, it may add an extra layer. Because the migrants will remain eligible for withholding of removal, a form of relief that is very similar to asylum but has a higher burden proof and protection under the Convention Against Torture, immigration judges will still have to rule on those applications.
In addition, judges will now have to determine if the person actually transited through a third country to assess eligibility for asylum. These cases will stay on their dockets, not simply disappear.
If the government is truly worried about frivolous asylum claims, the answer isn’t to send those claims to another country. Nor is it to pass a rule so broad that everyone crossing the southern border will be affected, including people coming from South American countries like Venezuela, which is currently a leading source of asylum claims, and other continents.
In recent months, a record number of African migrants fleeing the Democratic Republic of Congo, Eritrea, Somalia, and Sudan have asked for asylum at the southern border. They, too, would be barred under the new rule if they transited through a third country.
Using this transit rule to try to pressure certain countries to enter bilateral safe third country agreements with the United States turns a serious humanitarian issue into a political one, where people fleeing for their lives become mere bargaining chips.
Rules like this risk destabilizing the entire system of international protection by foisting the burden to less developed countries that are ill-equipped to handle a large volume of asylum seekers. That approach is neither equitable nor sustainable.
When the EU entered into an agreement with Turkey to remove Syrian migrants arriving in the Greece to Turkey, it, too, shifted the burden to a less developed country, but at least it paid Turkey billions of dollars and agreed to resettle one Syrian in the EU for every Syrian removed to Turkey.
The U.S. is attempting to shift the burden with no agreements in place and no responsibility to assist. It is shirking its international obligations and its promise of equal protection and justice for all.
Fatma Marouf is a professor of law and director of Immigrant Rights Clinic at Texas A&M University School of Law.