Trump’s asylum deal with Guatemala looks illegal even without reading it

A Honduran migrant stands in front of a mural in the northwest Guatemalan border city of Tecun Uman on May 13, 2001.
A Honduran migrant stands in front of a mural in the northwest Guatemalan border city of Tecun Uman on May 13, 2001.
Image: Reuters
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US president Donald Trump is not sharing the details of his deal with Guatemala.

But there’s no need to read the fine print to determine that it’s probably illegal, and would almost certainly be challenged in court, and that a judge would likely throw it out.

Trump has tried a variety of schemes to skirt US and international laws requiring his administration to hear asylum requests. His deal with Guatemala is just the latest effort. Known as a “safe third country” agreement, such a deal compels migrants who pass through another country on their way to the US to apply for asylum there instead.

But that country must be deemed “safe” under US law. Guatemala does not meet those standards of safety.

The Immigration and Nationality Act states that the US can only redirect asylum seekers to countries “in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”

Lawyers suing the government could point to plenty of documentation of human rights abuses in Guatemala, compiled by non-profits and governments, including the US’s own State Department. They could also point to violence and persecution against women, indigenous people and the LGTBI community.

And they could argue that access to fair asylum procedures would be severely limited in Guatemala. Last year, the country’s asylum system received fewer than 300 applications. It would have to dramatically ramp up services if it had to process requests from the tens of thousands of El Salvadorans and Hondurans who travel through Guatemala on their way to the US.

Those three countries, known as the Northern Triangle, have been beset by a series of political and natural catastrophes that have ravaged their economies. Corruption and impunity are rampant, and so are crime and violence.

“Most people who have any basic knowledge about Guatemala know that this agreement is absurd on its face and most likely unlawful,” said Karen Musalo, director of the Center for Gender and Refugee Studies at University of California, Hastings College of Law.

The White House and the Department of Homeland Security did not respond to requests for further details about the agreement. It’s unclear what kind of legal vetting went into drafting it.

Adherence to the law has not been the Trump administration’s main concern when it comes to immigration policy. Judges have often sided with the plaintiffs in the flurry of lawsuits filed against the president’s measures, from several iterations of the travel ban, to family separation, to just last week, a new rule to ban asylum requests.

A federal judge blocked that rule, saying it was “likely invalid” and “inconsistent” with US asylum laws. In practice, that rule would have had a similar effect as the “safe third country” agreement the US says it signed with Guatemala, so it wouldn’t be a surprise if another judge reached the same conclusion.

The deal will likely face additional legal challenges in Guatemala, where the constitutional court ruled earlier this month that any asylum agreement with the US would have to be approved by lawmakers.