A recent Board of Immigration Appeals case highlights the Trump Administration's latest tactic for blocking asylum seekers from protection in the United States. In Matter of C-I-G-M- & L-V-S-G-, the Board held that two Guatemalan migrants were barred from asylum, Withholding of Removal, and relief under the Torture Convention, and that they could be sent to a third country--in this case, Honduras--to pursue a protection claim there.

The decision illustrates a new trend in Immigration Court where DHS (the prosecutor) files to pretermit (deny) asylum and order the non-citizen deported. The basis to pretermit is that the applicant could seek asylum in a safe third country pursuant to an Asylum Cooperative Agreement (ACA) with that country. The Immigration Judge may then deport the person to the third country, where they can supposedly seek protection.

Here, we will discuss the ACAs and how they are affecting asylum seekers.

Let's start with the law. INA § 208(a)(2)(A) states that an "alien" is barred from asylum if "the alien may be removed, pursuant to a bilateral or multilateral agreement, to a [third] country... in which the alien’s life or freedom would not be threatened... and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection...." This is a bar to asylum, but not to other forms of protection. However, the relevant regulations expand the bar to include Withholding of Removal and protection under the Torture Convention (whether these rules can be legally challenged, time will tell).

Based on rules from the first Trump Administration, these regulations are being applied retroactively to migrants who entered the U.S. on or after November 19, 2019.

The second Trump Administration has been reaching out to various countries to convince (or coerce) them into taking our asylum seekers. As far as we know, the countries that have signed Asylum Cooperative Agreements are Belize, Ecuador, Guatemala, Honduras, Paraguay, and Uganda (we also have a long-standing ACA with Canada, but that agreement is different and is not relevant here).

Not all aspects of the ACAs are public and each agreement has its own peculiarities, including numerical and geographic limits on who the third countries will accept. One commonality is that asylum seekers need not ever have been to the third country in order to be deported there (this is different from the Canadian ACA, which only applies to asylum seekers who have physically been to Canada). This means that even if you have never been to Ecuador in your life, you could potentially be deported to Ecuador, which is considered a safe country where you can request asylum.

A few points about how the ACAs are not being utilized: First, these agreements do not apply to unaccompanied children. Second, as far as I can tell, the ACAs are not being used to block people seeking asylum at the Asylum Office; they are only used against people in Immigration Court. Third, they seem to primarily target people from Latin America (though there are exceptions). Finally, the ACAs do not prevent a person from obtaining other relief in court, such as adjustment of status or Cancellation of Removal.

How does DHS (the prosecutor) utilize ACAs in Immigration Court? As I have encountered these, DHS files a motion to pretermit the asylum case based on an existing ACA. Usually, this is done with very little notice prior to the Individual Hearing. If the Immigration Judge (IJ) determines that the ACA applies, the non-citizen must then prove "by a preponderance of the evidence that he or she will more likely than not be persecuted on account of a protected ground or tortured in the relevant third country to avoid application of the safe third country bar and for the respondent to be eligible to seek asylum and other protection claims in the United States." In other words, you need to either show that the ACA does not apply, or that if it does apply, that you would be persecuted or tortured in the third country.

How do you show that the ACA does not apply? Some ACAs are limited by their terms (you can find links to the various ACAs here). For example, if DHS raises the Guatemalan ACA, that agreement only applies to people from Central America, and so if you are from Nigeria, that ACA does not apply to you.

The ACA countries have only agreed to accept a limited number of migrants, and so potentially, you could argue that the "quota" for that country is full. One difficulty with this argument is that the quota is not public, and so we do not know how many people each country will accept. Also, we do not know how many people have already been ordered deported to that country. In practical terms, I have not heard about this argument succeeding.

Assuming the IJ concludes that the ACA does apply (and in most cases, judges are reaching this conclusion), then you must show by a preponderance of the evidence that you would face persecution in the third country. For most people, it will be very difficult to demonstrate that they will be harmed in a country where they have probably never been. However, some groups--LGBT individuals, people who fear transnational gangs, some religious minorities, etc.--may be able to make this showing.

What else can you do if DHS files a motion to pretermit your case? One strategy is to ask for more time to respond. Unfortunately, most IJs seem unwilling to allow more than a few weeks to submit a response. Also, you may be able to argue that DHS filed the motion to pretermit too late (different judges have different schedules for filing motions). Some IJs may be sympathetic to this argument, but I have not yet seen a case where it actually succeeded. I have also heard about a lawyer who threatened DHS with a bar complaint over the dishonest representations contained in the motion to pretermit (including that the third country was safe and could fairly evaluate the person's asylum claim), which caused DHS to withdraw the motion. Finally, if the judge orders you deported to a third country per an ACA, you can appeal to the Board of Immigration Appeals, and from there, to federal court. This will at least buy you some time, as the appeals process often takes years, at least for non-detained cases.

The ACAs represent an abdication of our legal and moral responsibility to help others. The idea that ACA countries have functioning asylum systems or can accommodate more refugees is a sad joke. Also, given the numerical limits, it seems highly unlikely that they will actually accept many of our asylum seekers, and so those ordered deported to ACA countries will likely end up in limbo. Despite all this, DHS and the Immigration Courts seem intent on accepting the fantasy that ACA countries are safe places of refuge, and using that fiction to block people from asylum in the United States.

Originally posted on the Asylumist: www.Asylumist.com