The Exception to the Exception: How the Asylum Cooperative Agreements Reinstate Expedited Removal for Asylum-seekers

All asylum agreements originate from international refugee and asylum law,¹ which establishes requirements on the ways that signatory countries process asylum-seekers. Under this body of law, signatory countries have the obligation to provide protection to non-citizens that face persecution in their country due to race, religion, nationality, political opinion, or membership in a particular social group. However, two concepts known as “safe third country” and “country of first asylum” carve out exceptions to these obligations. Under the country of first asylum concept, a destination country can send an asylum-seeker to another country if the migrant already applied for or was granted protection there. The “safe third country” concept allows countries to not review asylum cases from migrants if a third country is willing to review the case through a full and fair process and grant protection. This concept applies to cases where a migrant could have requested asylum in these third countries, especially if the asylum-seeker travels through the third country and does not face persecution there. In both cases, the concept of non-refoulment in international refugee and asylum law prohibits the destination country from sending asylum-seekers to a third country if they may face the same persecution as in their home countries.

The United States and other countries have incorporated these concepts into their domestic legal systems that enable them to sign asylum agreements with other governments. In the United States, the Immigration and Nationality Act,² or INA, permits the United States to remove asylum-seekers pursuant to a bilateral or multilateral safe third country agreement if the signatory country provides a full and fair asylum procedure and the migrant does not face persecution. The U.S.-Canada STCA and the ACAs originate from this part of U.S. immigration law. For comparison, the European Union’s Dublin Regulations, which regulate asylum access in the EU, formally integrates the concept of “safe third country” into the EU’s asylum framework. EU member states³ have subsequently made the regulations part of their own asylum systems as mandated by EU law, meaning that nearly all asylum systems in the EU operate under this concept in international law. Although the United States has not included the “country of first asylum” concept into its legal code,⁴ individual EU states like Spain have included “country of first asylum”-based policies into their asylum systems alongside the Dublin III components based on the safe third country concept.

While legal scholars have examined the shared legal foundations of agreements stemming from these two legal concepts, few have categorized them based on the agreements’ operations and policy goals to note their differences and evolution over time. We believe that the U.S.-Canada STCA and Dublin III regulations belong to a category of asylum agreements known as first entry agreements, which focus on determining which country has the affirmative obligation to process asylum claims in a geographic region. These agreements have two components: they require asylum-seeker to apply for asylum in the first country they enter that is a signatory to these agreements. If the asylum-seeker travels to another country that is signatory to the agreement, the destination state may return them to the country of first entry. The country of first entry subsequently has the affirmative obligation under these agreements to review the migrant’s asylum claim and decide whether to grant the applicant protection.

The Dublin III Regulation, which controls the processing of asylum-seekers in the EU, serves as an example of a multilateral first entry agreement. Dublin III, implemented in July 2013, requires asylum-seekers who travel from a non-EU member state to an EU member state to apply for protection in the first EU member state they enter. If a migrant sought asylum in Germany after entering through Greece,⁵ for instance, the EU requires Germany to deport them to Greece, which is the country of first entry. While this decision permanently prohibits the asylum-seeker from applying for protection in the rest of the EU, the migrant can appeal the transfer decision in Germany’s administrative court system, a right that exists across the EU.⁶ Once the migrant arrives in Greece, Dublin III requires the Greek government to review the applicant’s asylum claim. If the Greek government denies the claim, it subsequently deports migrants that do not qualify for asylum. However, an individual EU member state may permit migrants to appeal their rejected asylum requests through processes outlined in its asylum laws.⁷

The U.S.-Canada Safe Third Country Agreement serves as an exemplar of a bilateral first entry agreement. Like the Dublin III Regulations, the U.S.-Canada STCA requires asylum-seekers to apply for protection in Canada or the United States when they arrive in one of these countries. If a migrant enters the United States from Canada and files a claim for asylum, the United States can return them to Canada, which must review their asylum claims. This process works the same in reverse. As a part of this process, U.S. asylum officers must first determine if the migrant can establish whether they fall under the auspices of the agreement. If the individual does, the asylum officer must then determine if the individual can establish whether they fall into the exempted categories in the agreement.⁸ For instance, the agreement only applies to asylum-seekers who apply for entry at U.S.-Canadian land border crossings and trains, excluding those who enter between ports of entry.⁹ Finally, DHS can bar migrants from applying for asylum if they fall under the auspices of the agreement.¹⁰

Both first entry agreements aim to deter “venue shopping,” the practice where asylum-seekers try to file their asylum application in a “preferred” country and not the first country where they could file an application. The agreements also aim to deter migrants from filing subsequent asylum claims in another country after finding protection in a first country, a practice that disproportionately affects “preferred” countries of asylum that serve as the final destination for humanitarian migrants. Further, the agreements establish protocols for which country is ultimately responsible for reviewing the asylum claim within a geographic region. In the process, the agreements aim to ensure that migrants do not undermine the integrity of these systems and prevent “more desirable” destination countries from receiving a disproportionate number of asylum-seekers.¹¹ However, this approach is different from the unilateral transfer approach, which seeks to deter the arrival of migrants to the border through punitive mechanisms.

The ACAs mark the appearance of the unilateral transfer model, a new approach that aims to deter asylum-seekers arriving to the U.S.-Mexico border by limiting their access to asylum in the receiving country. While the ACAs share the same legal lineage as the U.S.-Canada Safe Third Agreement, citing as their authority the “safe third country” section of the INA, this new approach shuts down a migrant’s ability to pursue their asylum case in the United States and establishes a regime that fast tracks the removal of asylum-seekers to an ACA signatory country with no ability to challenge or obtain review of the decision.

The core components of the ACA regime are the bilateral agreements with the Northern Triangle countries ¹² and an interim final rule implementing the deals.¹³ Under the regulation, single adults and families¹⁴ who arrive at the U.S.-Mexico border at or between ports of entry can continue to request a credible fear interview after CBP places them in expedited removal proceedings. However, the regulation allows U.S. Citizenship and Immigration Services asylum officers to apply the ACA to these migrants – and bar an application for asylum¹⁵ – if they meet four requirements:

1. The United States has entered “a bilateral or multilateral agreement” under which certain migrants may be removed.
2. The migrant is subject to the ACA¹⁶ and one of the signatory countries is a “third country” with respect to the migrant.
3. The migrant’s “life or freedom would not be threatened” in that third country “on account of race, religion, nationality, membership in a particular social group, or political opinion.”
4. The third country will provide the alien with “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”

If an asylum-seeker expresses concern that they may face persecution or torture in an ACA signatory country, USCIS considers these claims when determining ACA applicability to the case.¹⁷ If an asylum-seeker does not express these concerns or fails to establish evidence supporting them, DHS can remove the migrant to an ACA signatory country where they can seek asylum or return to their country of origin. The agreements do not allow an immigration judge to review the ACA assessment file, including a migrant’s claims of fear of removal to the ACA country. Finally, the United States has stated that ACAs apply to all nationalities, without regard to any previous connection to the ACA country, and may include Mexican asylum-seekers who arrived at the U.S.-Mexico border directly from Mexico.¹⁸

Reports on the Guatemalan ACA’s implementation provide more insight into the way the United States deports asylum-seekers under the agreements. After a USCIS asylum officer determines the applicability of the ACAs for the migrants during the expedited removal process, ICE takes custody of these migrants and flies them to Guatemala City, where Guatemalan officials transport them to a migrant reception center. The officials inform the migrants that they have 72 hours to apply for asylum or they must leave the country. If a migrant decides to apply for asylum in Guatemala, they meet with civil society groups to learn about the process, which can take a year. Central American nationals that do not apply for asylum subsequently board buses operated the International Organization for Migration or the U.N. High Commissioner for Refugees to return to their home countries.¹⁹

The Guatemalan ACA’s implementation shows that these agreements have essentially eliminated the exception to expedited removal processing for asylum-seekers. Expedited removal allows DHS authorities to deport undocumented immigrants apprehended at the border without a hearing in the immigration court system. However, the law that authorizes expedited removal has an exception for individuals who expressed fear of return to their home country and passed a credible fear interview, allowing them to present their cases to an immigration judge. The ACAs created an “exception to the exception” in the expedited removal process to close off this route. If a migrant is amenable to removal under an ACA, authorities can bypass the credible fear interview process since the migrant theoretically will have the opportunity to apply for asylum in another country and they can be removed there under expedited removal. Like traditional ER, the ACAs do not allow immigration judges to review these decisions, making them a fast-tracked removal process for asylum-seekers. These changes reflect the assumption that shutting down access to the immigration court system and increasing penalties for crossing the U.S.-Mexico border will disincentivize migrants from traveling to United States.

While the ACAs share some of the same elements as first entry asylum agreements, these two categories of agreements exhibit major differences in their policy objectives and operational components. As noted above, the unilateral transfer model aims to deter asylum arrivals outright, a goal that is significantly more expansive than the first entry approach’s efforts to discourage venue shopping. Furthermore, the ACAs expand the United States’ capacity to remove more migrants at the border and bar them from accessing legal asylum channels in the future, making them significantly more punitive than Dublin III and the U.S.-Canada STCA. These operational differences include:

• The United States’ decision to apply the ACAs to Mexican asylum-seekers²⁰ bucks the first entry model by bypassing the requirement that migrants to travel through a first entry country to trigger the removal process.
• While the ACAs and Dublin III prohibit migrants from applying for asylum in their destination state after their removal to a receiving state, the ACAs provide limited opportunities for migrants to appeal their removal to an ACA country.
  • In contrast, the Dublin III regulations allow migrants to appeal the transfer decision and rejected asylum claims through an individual EU member states’ administrative court system.
  • Further, the U.S.-Canada STCA requires U.S. asylum officers to automatically determine whether an asylum-seeker falls under exempted categories for all individuals subject to the agreement and has broader exempted categories than the current ACAs.
• The ACAs cover entries between as well as at ports of entry, a much broader geographic footprint than the U.S.-Canada STCA, which only applies to ports of entry, train travel, and certain types of air travel.
  • Applying to migrants who enter between ports of entry also eliminates the discretion of U.S. officers offer withdrawal of the application, which is allowed under the U.S.-Canada STCA.
  • This option allows the migrant to return to Canada without a formal removal, which would bar reentry for five years. ACA returns appear to all be formal removals subject to the five-year bar.
• Regulations that support the ACAs by establishing additional limits to asylum-seekers arriving at the U.S.-Mexico bar these migrants from entering the United States through legal channels, a feature that does not exist in the U.S.-Canada STCA.

These innovations have made the ACAs a more potent enforcement tool in the Trump administration’s efforts to discourage migrants from seeking asylum at the U.S.-Mexico border. While the administration has not published data on ACA returns, reporters tracking ACA returns have noted few migrants seek protection in these countries and most return home. Further, media outlets have also reported that the administration is putting fewer migrants into the MPP program, and using the ACA process more individuals, suggesting these agreements have emerged as the primary vehicle that the administration uses to deport asylum-seekers from the Southwest border.

The ACAs are a distinct new category of asylum agreements that reflect the Trump administration’s efforts to discourage asylum-seekers from traveling to the U.S.-Mexico border. Although these agreements may help the administration keep Southwest border apprehensions low in the near term, these successes overlook two potential future problems. First, the United States’ reliance on these agreements can become a liability if one or all the Northern Triangle countries abandon the deals. The recent collapse of the 2016 EU-Turkey Deal that contained asylum-seekers in Turkish territory highlights these problems. After Turkey invaded Northern Syria in February 2019, Ankara suddenly abandoned the agreement, despite receiving from the EU a payment of 3 billion euros and the promise of visa-free travel into EU member states from the EU. The announcement led to more migrants traveling to Greece, catching the EU, which had not addressed the weaknesses of Dublin III during this time, off guard. While the United States maintains other policies such as the MPP program to deter migrant arrivals, the ACAs’ collapse could generate a similar scenario, especially if the United States has not reformed the institutional problems that compounded the 2019 crisis.²¹

The United States’ reliance on these agreements also overlooks the limits of a deterrence-only strategy to address changing migration flows at the border. As we have noted previously, the United States has failed to address past extraordinary migration events because it focuses on deterring asylum-seekers through hardline measures rather than adopting measures that allow it to manage changing migrant flows. In particular, the United States has not invested in its ability to adjudicate more asylum cases, by underfunding and understaffing its immigration court system. Further, the United States government has not developed protocols to strengthen the humanitarian components of the country’s response to these events. Finally, the United States needs to adopt a Central American policy that improves the region’s capacity to manage shifting migration patterns, especially with restarting in-country asylum processing and reinforcing Mexico’s asylum system. Making these investments in the immigration system would allow the United States to manage extraordinary migration events instead of relying on a reactive strategy that does not prepare the country for future changes in migrant flows.

^{1 These laws include the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Executive Committee of the High Commissioner’s Programme, an advisory body to the U.N. High Commissioner for Refugees formally established these concepts in international law through a 1989 decision known as EXCOM Conclusion 58(XL). The decision discusses how states can work cooperatively on managing the movement of refugees “who move in an irregular manner” from countries of first asylum to other countries to seek protection.
2 See INA Section 1158(a)(2)(A).
3 The three iterations of the Dublin Regulation have applied to every of the EU’s 28 member states aside from Denmark, which has a special agreement with the EU. The agreement also applies to three non-EU member states: Iceland, Norway, and Switzerland.
4 The United States Congress has not passed a reform of the Immigration and Nationality Act that adds the country of first asylum concept into the law. Nevertheless, the Trump administration introduced a regulation based on this concept that sought to deny asylum to any migrant that traveled through another country before reaching the U.S.-Mexico border. The regulation cites legal authorities in the INA that grant the Attorney General and DHS Secretary additional power to limit asylum at the border. The policy is currently being litigated in the federal court system.
5 An integral part of this process is the Eurodac, an EU-wide database of biometric data of third country nationals that EU member states can access. The system requires first entry countries to take the fingerprints of asylum-seekers entering their territory and submit this biometric data to a common EU database. If the same asylum-seeker arrives to another EU country, the destination state will check their fingerprints and send them back to the first entry country if they match the ones taken when they entered the EU.
6 See for instance this primer on the Dublin procedure in Germany.
7 See for instance this primer on the Dublin procedure in Greece.
8 The agreements exempt certain groups from these provisions, including asylum-seekers with family members in the receiving country, unaccompanied minors, or have a valid travel documents or permits issued by the government.
9 The agreement’s provisions also apply to third country nationals traveling by air if they travel through Canada or the United States after the other government has denied their asylum request and deported them from their territory.
10 The regulation implementing the ACAs also establishes the conditions that can lead to this result under the U.S.-Canada STCA. The regulation states: “If the asylum officer determines that the alien is not subject to the Agreement, or meets an exception, the asylum officer proceeds to conduct a credible fear interview. Id. (codified at 8 CFR 208.30(e)(6)(ii)). However, if the asylum officer determines that the alien is subject to the Agreement, and does not meet an exception, the asylum officer submits his or her findings to a “supervisory asylum officer.” Id. (codified at 8 CFR 208.30(e)(6)(i)). If that supervisory officer concurs, the alien is barred from applying for asylum in the United States.” 
11 As we noted previously, extraordinary migration events like the European migration crisis can undermine the ability of first entry agreements to meet these two goals by placing significant burdens on first entry countries that lack the resources to process an influx of asylum-seekers being returned from destination countries.
12 The text of the U.S.-Guatemalan ACA is available here.
13 In addition to these documents, U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) issued guidance on the implementation of these agreements.
14 The USCIS document on the Guatemalan ACA notes that the agreement does not apply to unaccompanied children.
15 Individuals subject to the ACAs also cannot apply for two additional forms of protection: Withholding of Removal and Convention of Torture. The regulation argues that U.S. commitments under the convention and for non-refoulement that would allow for those applications do not apply if there is a “safe third country” in which they can seek that protection as well as asylum.
16 The USCIS document on the Guatemalan ACA notes that the agreement applies to migrants who express a fear of return to their home country, arrived to the United States after the effective date of the ACA, have not been admitted to the United States, and have not been convicted of a felony in the U.S. or any crime in Guatemala. The migrant also cannot be a citizen of the ACA country.
17 This process requires the migrant to show by a “preponderance of the evidence” that they would “more likely than not” face persecution or torture in an ACA signatory country. If a migrant successfully meets these requirements, asylum officers will follow standard procedures for administering a credible fear test during the expedited removal process.
18 The interim final rule for the ACAs notes that the INA section that establishes the legal foundation for Safe Third Country agreements and other asylum agreements (Immigration and Nationality Act Section 208(a)(2)(A)) does not “limit the applicability of ACAs to aliens who have traveled through the third country in transit to the United States.”
19 Although the United States has not implemented the agreements with El Salvador and Honduras, it is likely that these deals will follow the same implementation process.
20 Currently, the Honduran government announced it would receive Mexican nationals under the ACA. However, the Guatemalan government has stated it would not receive Mexican asylum-seekers.
21 In early March 2019, Guatemala’s deputy foreign minister Eduardo Hernandez stated that the country wanted to limit the number of ACA removals to the country since current levels were exceeding its asylum system’s capacity. On March 17, 2019, the Guatemalan government suspended ACA deportations due to concerns over the spread of the Coronavirus. Although this news does not necessarily portend the end of the Guatemalan ACA, this raises questions about its viability in the future.}