Blog post by Raagini Ramachandran, a student at the National Academy of Legal Studies and Research (NALSAR), Hyderabad, India
The United States of America recently entered into three Asylum Cooperation Agreements (“Agreements”) with the ‘Northern Triangle Countries’- comprising of Guatemala, Honduras and El Salvador. These agreements were entered into by the U.S.A in the form of bilateral treaties with each of these countries. The effect of these agreements is to preclude an asylum seeker from these countries to enter the U.S.A without first seeking protection from a third country which they transited en route to U.S.A.
This blog examines the ensuing impact of this agreement on the rights of refugees and contextualizes this development in U.S. foreign policy under the Trump administration’s attempt towards intensifying its measures to deter immigration from Central America. This article addresses larger questions of humanitarian obligations of the U.S.A which are overshadowed by these agreements.
There is an extremely high rate of migration that prevails in the Northern Triangle countries due to a range of reasons including poor socio-economic conditions and lack of stability in governance. This region has also witnessed a constant state of unrest due to high crime rates against people, especially women and children. A report published by the U.S. Government on the practice of human rights has categorically identified a broad range of human rights violations and an extremely high level of violence prevalent in this region (including homicides as illustrated in the graph below – by way of contrast homicide rates in the US are 5.0 murders per 100,000 people in 2018).
The Northern Triangle Countries have seen an extremely high rate of displacement due to the escalation in violence. The volume of asylum grants and applications from these countries is also reflective of the absence of peace and security. However, not many countries are receptive to the idea of granting asylum to people fleeing from this region as they view asylum to address “credible fears” associated with a predicament to flee from a country “due to the fear of persecution by the government”, and not cartel-based organized crimes like the ones in these countries. While such an understanding of “credible fear” associated with persecution of the individual by the State in the country of origin is prevalent in certain jurisdictions, there are judicial pronouncements which have given an expansive interpretation to “credible fears” associated with persecution, which is not limited to persecution by the State only but it also includes other forms of violence or unrest that leads to a “well-founded fear” of persecution.
Additionally, the Cartagena Declaration of 1984 in an attempt to introduce constructive measures to resolve refugee displacement in Central America has defined Refugees as “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”. This broad definition provides a scope for greater protection to displaced people in Central America. Moreover, this declaration has been adopted by domestic legal regimes of most of the Latin American. However several of these countries lack the requisite infrastructure and are ill-equipped to carry out a fully-functional asylum grants system.
The United States of America is a signatory to both the 1951 Refugee Convention and the United Nations Refugee Protocol of 1976 (“The Protocol”) which binds it to international obligations with respect to refugee rights. State Practice indicates that agreements of this nature must implement the concept of a “safe third country”, the lawfulness of which is presumed on the ground that protection of the refugee has already been found or can be found elsewhere. Safe third country agreements are consistent with the 1951 Refugee Convention which states in its preamble that granting asylum may place “unduly heavy burdens” on certain countries, and international cooperation is imperative in order to arrive at a satisfactory solution of a problem which the United Nations has recognised. However, the enactment of such agreements is subject to two conditions:- (i) the third country to which the asylum seeker has been deported has to have an adequate infrastructure to ensure a full and fair procedure to adjudicate on the claims to seek asylum and, (ii) to ensure that this deportation does not endanger the life and freedom of such an individual due to their race, religion, nationality, political opinion, etc.
The Asylum Cooperation Agreements however, have ignored the infrastructural handicaps that the Northern Triangle countries have with respect to accommodating asylum seekers in their country.
Firstly, these countries fall short of providing an infrastructural support that ensures “full and fair” asylum procedure as mandated under agreements of this nature. For instance the asylum system in Honduras is plagued with infrastructural challenges to such an extent that from the beginning of 2008 till mid- 2019, merely 50 people were recognised as refugees out of a total of 299 asylum grant requests registered with the National Institute for Migration at Honduras. The low number of asylum requests over this time period is also suggestive of the fact that the asylum seekers are apprehensive of the system in place and do not consider it to be adequately equipped to address their concerns.
Secondly, the criteria for granting asylum in U.S. requires the applicant to meet the definition of “refugee” under the Immigration and Nationality Act, 1965. This Act defines a refugee as an individual having a “well-founded fear of persecution on account of race, religion, membership in a particular social group, or political opinion.” Thus, a ‘credible fear’ of persecution or torture upon returning to the country of origin must be demonstrated by the asylum seeker. The volatile socio-political condition coupled with aggravated instances of crimes and human rights violations have led to a state of fear and desperation to such an extent that despite the Safe Third Country Agreements in place, data recorded by the Government of U.S.A suggests that approximately 70% of the total people detained in the U.S. border belong to the Northern Triangle region.
Thirdly, the Asylum Cooperation Agreements are fundamentally flawed in classifying the Northern Triangle countries as “safe” despite the fact that the National Security Strategy of US has unequivocally stated that the stability of Central Americans is threatened by transnational criminal organizations – including cartels and gangs which permeates corruption and violence in these countries. A study conducted on the psychology of migrants indicates that the likelihood of an individual belonging to Honduras and El Salvador who wishes to migrate is 10-15 percent higher in the case they have been subjected to crime and violence compared to those who have not. Thus, conditions of abject poverty, the dearth of employment opportunities and high crime rates push these migrants to seek an asylum status and move to the other countries. Moreover, instances of gender-based violence in the Central Americas have been recognised to be high in El Salvador, Guatemala and Honduras. The Asylum Cooperation Agreements are inconsistent with the U.S. Government’s adoption of Gender Asylum Guidelines in 1995 for recognition of the right of women to present domestic violence asylum claims.
The United States ought not to turn a blind eye towards the state of unrest that perpetuates in this region. To explicitly rob the sanctity of a refugee’s status by ignoring the unrest and infrastructural handicaps in the Northern Triangle region is detrimental to the very foundation of refugee rights. In another setback to refugee rights, The Supreme Court of the United States in Department of Homeland Security v. Thuraissigiam held that an asylum seeker is not vested with the right of judicial review by the Supreme Court on an order issued by the government for expedited removal of such a person and that the lower courts were to continue adjudication on asylum grants. This decision was dissented by a minority of Justice Sonia Sotomayor and Justice Kagan who opine that this decision is contrary to the time-honoured precedents and practices pertaining to refugees that seek protection from the U.S.A. Experts are of the opinion that this decision of the Court heightens the risk of erroneous immigration decisions that contravene government statutes and treaties and it also limits judicial review which was one of the few avenues to ensure agency accountability.
Therefore, this shift in the immigration policy enacted by Trump’s administration coupled with the U.S. Supreme Court’s decision to not intervene has enabled a potent and multi-layered framework that greatly obstructs the flows of immigrants who seek asylum and protection at the U.S. border.
The Way Ahead
The U.S. is under a humanitarian obligation to adhere to the principle of “non-refoulment” under this protocol, which essentially means that it cannot force a refugee who is fleeing to return to a place of danger. Up till the beginning of February, 2020 U.S.A has transferred 378 Honduran and El Salvadoran asylum seekers to Guatemala and the majority of these people were children and women. Therefore keeping in mind its obligations towards human rights, it is essential for U.S.A to reconsider the gravity of impact that this agreement has on so many displaced individuals, and it should ensure that these refugees are sent to safe countries which have the requisite infrastructural support. Moreover the U.S.A ought to address the impact that this agreement will have on its humanitarian obligations under the United Nations Refugee Protocol of 1976.
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