On January 15, 2020, the American Civil Liberties Union, National Immigrant Justice Center, Center for Gender & Refugee Studies, and Human Rights First filed a federal lawsuit challenging the Trump administration’s policies concerning so-called “safe third country” agreements with Guatemala and other Northern Triangle countries that force individuals seeking asylum in the U.S. to apply for asylum in the same dangerous region from which they have fled.

The agreements and policies deprive asylum applicants from ever receiving an opportunity to apply for asylum in the U.S.  Instead, they are sent to Guatemala – and soon to El Salvador and Honduras, even though the publications of the U.S. government state these countries are suffering from epidemic violence, instability and ill-equipped asylum systems.

U.T. v. Barr, the lawsuit, was filed in U.S. District Court in Washington, D.C.  It cites violations of the Refugee Act, Immigration and Nationality Act, and Administrative Procedure Act.  Plaintiffs are asylum applicants who fled to the U.S. and were unlawfully removed to Guatemala, as well as organizations that service asylum seekers.

Plaintiffs

U.T. is a gay man from El Salvador who fled his country for the U.S. after being threatened by an MS-13 gang member.  He fears he will be attacked or killed for his sexual orientation if he tries to live openly as a gay man in his home country.  He traveled through Guatemala on his way to the U.S.   He was subjected to homophobic harassment in Guatemala.  When he arrived to the U.S., border officials said he was being removed to Guatemala, where he also fears homophobic persecution.

M.H. is a Honduran memo who fled to the U.S. with her young daughter.  Her common-law husband and her sister-in-law worked in the transportation business in Honduras and were forced to pay local gangs in order to work.  They were both murdered.  Fearing for their safety after being threatened, M.H. and her daughter fled to the U.S.

A plaintiff is Las Americas Immigrant Advocacy Center, a nonprofit legal services organization based in El Paso, Texas. It is dedicated to serving the legal needs of low-income immigrants, including asylum seekers.

Another plaintiff is the Tahirih Justice Center, the largest national direct service and policy advocacy organization focused on assisting immigrant women and girls fleeing violence.

Allegations in the Complaint

The complaint states that noncitizens who arrive or are physically present in the U.S. may apply for asylum, subject to three narrow exceptions.  One of those exceptions is that noncitizens may be denied the opportunity to apply for asylum in the U.S.  Instead the U.S. can remove them to seek protection elsewhere pursuant to a “safe third country” agreement.  The exception only applies if strict statutory requirements are not met, including that the asylum applicant would have a full and fair opportunity to seek asylum in the “safe third country” and would not face persecution or torture there.

Last summer the U.S. signed three new “asylum cooperative agreements” (“ACA”) with Guatemala, Honduras, and El Salvador – all extremely dangerous, refugee-producing countries with asylum systems that are skeletal at best.

On November 19, 2019, the U.S. government issued an Interim Final Rule titled “Implementing Bilateral and multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act” (the “Rule”).  It establishes procedures for the removal of asylum seekers to Guatemala, Honduras, and El Salvador, and to any other countries with which the U.S. signs future ACAs.  The Rule’s goal is to allow the “distribution of hundreds of thousands of asylum claims” to other countries.  84 F.R.   at 63,994.

On November 20, the government issued written guidance implementing its ACA with Guatemala and started removing non-Guatemalan asylum seekers there.

The lawsuit challenges the Rule, as well as agency guidance implementing the Guatemala ACA *the “USCIS Guidance”),.  The lawsuit claims the ACA and Guidance unlawfully deprive asylum seekers of the right to right for asylum in the U.S. and sending them to dangerous countries where they have no chance to find refuge.  The Rule has already the plaintiffs in the case, and others like them, in harm’s way by removing them too Guatemala and forcing them to decide between remaining there, where they fear for their lives, and returning to the countries from which they fled persecution.

The complaint alleges that the government’s willingness to sign ACAs with these countries illustrates that its true goal is not to promote burden sharing while ensuring the safety of refugees.  Instead, the Rule and ACAs turn away asylum seekers and require the signatories of the ACAs to ensure them due process, care for them, and enable them to have a fair hearing on their asylum application.

Relief Sought

The plaintiffs seek a declaration that the Rule and USCIS Guidance are contrary to law, arbitrary and capricious, and/or unconstitutional.  They seek an injunction prohibiting the implementation or enforcement of the Rule and USCIS Guidance.  They seek an order vacating the removal orders issued to the individual plaintiffs and an order paroling those individual plaintiffs into the U.S. for the duration of their removal proceedings.

The February issue of the IELR will have additional discussion of the complaint.