Trump's latest gambit: Send asylum seekers to 'Safe Third Countries' that are less than safe

Trump's latest gambit: Send asylum seekers to 'Safe Third Countries' that are less than safe
© Aaron Schwartz

The Trump Administration has published an interim final rule that will dramatically reduce the number of aliens who can apply for asylum in the United States.

The rule authorizes asylum officers in expedited removal proceedings and immigration judges in regular removal proceedings to conduct a threshold screening to determine whether an alien is barred by a Safe Third Country agreement from applying for asylum. Aliens who are barred will have to choose between applying for asylum in a Safe Third Country and going home (unless they have some other basis for lawful status in the United States).

Those would be the only choices: apply elsewhere or go home.

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The United States currently has Safe Third Country agreements with El Salvador, Guatemala, Honduras, and Canada; the agreement with Canada, however, is subject to different rules.

The new rule applies prospectively to aliens who arrive at a United States port of entry — or who enter or attempt to enter the United States between ports of entry — on or after Nov. 19, 2019.

Immigration advocates may be successful in challenging this rule in the lower federal courts, but I expect the Supreme Court to find that it is a lawful exercise of statutory authority.

Safe Third Country agreements are not new

Safe Third Country agreements were created to make it possible for countries to share the responsibility of aiding asylum seekers. In 1991, the United Nations High Commissioner for Refugees invited such agreements to foster international cooperation.

The United States desperately needs international assistance with asylum seekers. Its immigration courts have so many cases now that the American Bar Association says they are on the brink of collapse.

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The immigration court backlog was 542,411 cases in January 2017, when President Donald TrumpDonald John TrumpThe Hill's Morning Report - Sponsored by AdvaMed - House panel expected to approve impeachment articles Thursday Democrats worried by Jeremy Corbyn's UK rise amid anti-Semitism Warren, Buttigieg duke it out in sprint to 2020 MORE took office, and it had increased to 1,023,767 cases by the end of September 2019, with an average wait for a hearing of 696 days.

The immigration courts only completed 297,109 cases through September of fiscal 2019. At that rate, even if there were to be a freeze on immigration enforcement to prevent new cases from being added, it would take three-and-a-half years to clear the backlog.

El Salvador, Guatemala, and Honduras are not safe

Immigration advocates are certain to argue that the safe third countries are not safe. They are plagued by the crime and violence that caused people to seek asylum in the United States in the first place. El Salvador has the world’s highest intentional homicide rate. Honduras is fifth, and Guatemala is 16th.

But asylum law doesn't provide refuge from violent, crime-ridden countries. When asylum seekers from El Salvador, Guatemala, and Honduras fail to establish eligibility for asylum, they are returned to their countries, regardless of the danger that awaits them there. 

The asylum provision, section 208(b)(1)(A) of the Immigration and Nationality Act, only authorizes asylum for an alien who has established that he is a "refugee" as that term is defined by section 1101(a)(42)(A), which reads as follows:

(42) The term "refugee" means (A) any person who is outside any country of such person's nationality .... and who is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, ...

And the Safe Third Country provision, section 208(a)(2), just requires participating countries to be able to provide safety from persecution:

Paragraph (1) [the one that gives aliens the right to apply for asylum] shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country .... 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, and where the alien would have access to a full and fair procedure for determining a claim to asylum .... (Emphasis supplied.)

No court has jurisdiction to review the validity of Safe Third Country agreements

Congress prohibited court review of determinations made under the Safe Third Country provision and the other two exceptions. Section 208(a)(3) states that:

No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)

I expect the Supreme Court to respect this limitation.

In the Travel Ban case, the immigration advocates argued that Trump had exceeded the authority Congress delegated to the President in section 212(f) of the INA. The Supreme Court rejected their arguments on the basis of the "plain language" of the section, finding that, "attempts to identify a conflict with other provisions in the INA, and their appeal to the statute's purposes and legislative history, fail to overcome the clear statutory language."

The same surely is true of the language in the judicial review limitation. Congressional intent could not be any clearer.

The only way immigration advocates will succeed with a challenge to the Safe Third Country rule is to persuade the Supreme Court that Congress violated the Constitution by authorizing the Executive Branch to determine when discretionary humanitarian relief from persecution should be granted, and that is extremely unlikely.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com