Blog post by John Angelo Gerard D.O. Calbario, a graduate student at American University

The Biden administration has set up immigration processing centers in Colombia and Guatemala to stop migrants from making the perilous journey to the southern border. These facilities screen applications of migrants fleeing Central and South America in search of legal entry to the United States (US). This new policy aligns with the imminent lifting of Title 42, a pandemic policy that turned away migrants without an asylum hearing. The Biden administration likewise declared that more stringent enforcement actions will be taken against migrants who enter the country illegally across the US-Mexico border. Secretary of State Antony Blinken and Homeland Security Secretary Alejandro Mayorkas indicated that the centers will encourage migrants to avoid traffickers and pursue legal entry into the US.

Effective 12 May 2023, migrants who avoid these pathways and enter the US illegally will suffer severe repercussions, such as expedited deportations, a five-year ban on re-entry, and serious criminal prosecution. The now opened Colombian and Guatemalan centers are set to screen 5,000 to 6,000 applications per month. The centers will be managed by United Nations (UN) agencies while American officers will assess applicants’ eligibility. However, not all admissible applicants screened by the processing centers will enter the US as Latin American candidates seeking resettlement through the centers may also be accepted by Canada and Spain.

While the presence of the UN in both centers is a step in the right direction, Dr. Tazreena Sajjad of the American University’s School of International Service stated that offshore processing is still a type of migrant deterrence practice utilized by western states to prevent migration of primarily people of color from the Global South.

Offshore processing was aimed at impeding future migration of individuals who may be escaping persecution and violence and avoid legal scrutiny by establishing a “law-free zone”. Thus, this piece aims to present why these American offshore processing centers must be closely looked into by the international community to hold the states involved accountable and prevent human rights abuses.

Offshore processing is not new in the migration regime. The US processed applications of asylum seekers in Guantanamo Bay in the 1980s. Australia copied this policy for the Pacific Solution in 2001 and later, for its Operation Sovereign Borders. The centers in Papua New Guinea and Nauru are the most recent examples of offshore processing as Australia’s revival of an essential component of the Pacific Solution. In the past, Australia has entered into a refugee resettlement arrangement with Cambodia, in exchange for Australian development aid. Such arrangements create alarming implications with respect to abuse of refugees and asylum seekers who were compelled to travel outside of the state where they sought protection.

While the American and Australian cases have decades between them, both share similarities with negative implications. In his Human Rights Watch article, Michael Garcia Bochenek stated that Australian offshore processing of asylum seekers was greatly influenced by American experience at Guantanamo, a former camp for refugees. Both cases involved human rights violations as well. In the case of the US, it feared a surge in Haitian boat arrivals due to the Aristide military coup, which prompted the government to order the Coast Guard to routinely board Haitian vessels and detain passengers and crew who were believed to be traveling to the country. Without lawyers or sufficient information, Haitians were assessed in hasty onboard interviews to see if they might be admissible as refugees. Those who got approved were bound for the US to apply for asylum, but only a small number of them did so before legal action forced the US to accept Haitians who had been assessed. However, a number of Haitians who had cleared these “credible fear” tests were not allowed entry into the US due to testing positive for HIV. The US kept them at Guantanamo for two years before transferring them as part of a legal agreement.

As for the Australian case, the government has made detention compulsory for all asylum seekers coming by boat. These asylum seekers were forced to move to Nauru and Papua New Guinea in accordance with regulations that were implemented from 2001 to 2008, and once more, since 2012. In 2013, Australia required all individuals who demonstrate that they are refugees to be relocated in one of these states or a third nation. According to Thomas Gammeltoft-Hansen and Nikolas Tan, inadequate space, subpar medical attention, and insufficient care have all been documented by the Committee against Torture as inflicting “serious physical and mental pain and suffering.” Worst, according to asylum seekers, was the uncertainty they had to deal with, which impacted on their mental health. It also established alarming precedents for the maltreatment of refugees and asylum seekers who were compelled to move outside of the state they sought protection from.

By the end of 2021, Australia discontinued its offshore processing in Papua New Guinea, leaving Nauru as its sole regional processing center. The UN, human rights organizations, and refugees themselves have consistently condemned Australia’s offshore processing policy and methods. It is illegal for states to delegate their legal obligations to asylum seekers by merely relocating them. At the minimum, nonrefoulement must be observed and applicants must have access to a fair, unbiased process for determining their status as refugees, as well as be able to find a long-lasting solution to their dilemma, with special considerations for the most vulnerable.

Last June 2023, it was reported that the last refugee kept by the Australian government in Nauru has been evacuated, marking the end of the contentious 11-year offshore detention processing procedure in the Pacific Island nation. Despite this, the Australian government is set to maintain its offshore processing operations in Nauru, allocating $350 million per year to keep the facility running and tapping Management and Training, a Utah-based company to oversee it.

Offshore processing was not meant for long-term purposes. In her interview with The Guardian, Madeline Gleeson stated that offshore processing was only implemented until a concerted and broad regional framework for handling asylum claims can be put into place. Offshore processing was recommended to the Gillard administration, along with increased cooperation with Indonesia and Malaysia. Unfortunately, the joint efforts with these Southeast Asian states weakened, together with Australia’s humanitarian intake.

The goal of these offshore processing centers was to stop boat arrivals but the opposite happened. Government statistics indicated that more people arrived by sea claiming asylum in the first year after the policy’s implementation than at any other point in Australian history. Australia’s offshore processing centers were quickly overwhelmed, forcing the Australian government to suspend deployment of its workers after just three months. According to Gleeson, Australia’s offshore policy’s most notable legacy has been the immense human and financial costs it has incurred and will continue to do so in the future.

Both reports added that there are still around 80 people trying to reach Australia who are being held offshore in Papua New Guinea and require immediate evacuation. This offshore processing center was said to be shut down by the Australian Supreme Court due to being unconstitutional. Australia claimed it transferred legal responsibility for the remaining 80 people to Papua New Guinea at the end of 2021. This, however, is against international law. To date, Australia continues to provide money for welfare and other forms of support through the Papua New Guinean government.

In line with this, Jane McAdam and Madeline Gleeson argued that a successful refugee policy controls borders, while simultaneously providing protection for those who need it. Offshore processing centers have traumatized people. According to them, funding for offshore processing could have been redirected to more sensible and compassionate options, and advised not to copy these offshore processing policies.

It will be interesting to see if these new American offshore processing centers in Latin America will be any different from their Australian counterparts. Third-party presence, such as international organizations like the UN, is a differentiator, especially for those looking to apply. This dynamic will certainly hold the US accountable for any human rights abuses or overreliance on Canada and Spain.

State sovereignty over migration policy is respected in international law. Colombia and Guatemala must assert their sovereignty as these operations are happening within their jurisdictions. Their national governments, local media, and civil society must be able to monitor and have a say on what is happening in the centers, especially with regards to the rights of the applicants. While it is noble for Canada and Spain to open their borders to these applicants, they must also be firm with the US if the latter is taking advantage of their assistance. Lastly, the US must provide fair and timely assessment of applications and hospitable conditions during the applicants’ stay in in Colombia and Guatemala.

All eyes must be on America’s offshore processing centers in Latin America to prevent previous unfortunate practices from happening again. This comes of importance as the US plans on increasing the allocated slots for applications and opening more centers in different Latin American countries. We must hold these states and international organizations accountable to be able to protect the rights and dignity of applicants aspiring to start a new life.

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.