Report Finds Major Flaws in US-Guatemala Asylum Pact

‘Deportation with a layover’ is how one advocate described the Trump administration’s deal with Guatemala.

Honduran migrants rest at an improvised shelter in Chiquimula, Guatemala. (AP Photo/Moises Castillo)

(CN) — As part of its ongoing crusade to curb migration at the U.S.-Mexico border, the Trump administration started transferring asylum seekers to Guatemala last year after entering into a “safe third country” pact with the Central American nation.

But only 2% of those transferred to Guatemala chose to seek asylum there, and many have been forced to return to countries where they said they fear violence and persecution, according to a new Human Rights Watch and Refugees International report

“It’s essentially deportation with a layover,” said Rachel Schmidtke, an advocate for Latin America with Refugees International.

Schmidtke and a colleague from Human Rights Watch interviewed 30 Central Americans who were transferred to Guatemala after seeking asylum at the southern border. The asylum seekers reported being subjected to mistreatment and misinformation by U.S. Customs and Border Protection before they were forced to board a plane to Guatemala. Some did not know where they were being taken until they arrived.

The transfers are part of a new U.S. asylum policy launched in November 2019 after a deal was reached with Guatemala in July. President Donald Trump had threatened to impose tariffs on the Central American nation unless it signed a “safe third country” pact and agreed to start accepting U.S. asylum seekers.

Only 20 of the 939 asylum seekers transferred to Guatemala between Nov. 21, 2019, and March 16, 2020, applied for refugee status in Guatemala, according to the Guatemalan Institute of Migration. The U.S. temporarily halted transfers to Guatemala on March 16 due to the Covid-19 pandemic.

Pervasive gang violence, inadequate protections for gay and transgender people, a lack of family or social ties, and barriers to accessing employment, health care and childcare are all factors that tend to make migrants unwilling to seek asylum in Guatemala.

Although the murder rate in Guatemala has dropped significantly from a high of 45 murders per 100,000 people in 2009 to 26 per 100,000 people in 2016, the U.S. State Department still warns U.S. citizens about the “serious risk of crime” in Guatemala City and other parts of the country stemming from “widespread corruption, an inadequate justice system and the prevalence of both gang and narco activity.” 

Before being transferred to Guatemala, according to interviews, asylum seekers were held for seven to 20 days — much longer than the 72-hour limit required by CBP standards — at CBP detention centers in El Paso or McAllen, Texas. 

The asylum seekers, including many with young children, reported being given inedible food, such as frozen burritos, being denied medical care and access to showers for days, being unable to sleep due to lights constantly left on and being subjected to insults and degrading treatment.

When a Honduran teenage boy developed a rash from detergent used by CBP, a guard told him he must be “allergic to washing himself.” When a 20-year-old Salvadoran woman asked a guard to use the restroom, he responded “Chinga tu madre” — “Fuck your mother” — according to interviews.

Many asylum seekers said they were also denied access to legal counsel and not provided with translated documents explaining their right to claim a credible fear of being sent to Guatemala. Some said they were told they could still seek asylum in the U.S. while waiting in Guatemala. Others thought they were being transferred within the U.S. and did not realize they were being sent to Guatemala until they arrived there.

“No one we spoke to knew when they arrived in Guatemala that they would have to apply for asylum in Guatemala,” Schmidtke said.

One of the interviewees, Jorge C., is a former police officer from Honduras who had testified in court against gang members that threatened to kill him. His wife and child had already fled to the U.S. and applied for asylum. When Jorge C. arrived at the U.S.-Mexico border, he was sent to Guatemala, despite having documents to support his claim and having complained about poor interpretation during his interview with a U.S. asylum officer.

As part of the agreement, asylum seekers sent to Guatemala are barred from reentering the U.S. for five years. That means Jorge C. will be separated from his family for years, even if his wife and child obtain refugee status in the United States.

Once asylum seekers arrive in Guatemala, they are given 72 hours to decide whether to seek asylum or temporary residency in the country or return to countries where they had claimed a fear of violence or persecution.

Refugee advocates describe the 72-hour limit as “arbitrary,” noting that a June 2006 agreement gives citizens of El Salvador, Honduras, Nicaragua and Guatemala 90 days to remain in each other’s countries.

To win asylum in Guatemala, claims must be approved by a committee of high-level officials including the vice president. Refugee advocates say the system leads to bottlenecks. In June 2019 when Guatemala had a 400-case backlog, the U.S. Embassy estimated the country could process 100 to 150 claims per year. By the end of March, Guatemala’s asylum backlog had grown to 713 cases.

An advisory board that reviews asylum claims and makes recommendations also lack technical expertise as no members of the panel, who are appointed by government ministers, have experience in international asylum law, according to refugee advocates.

Finding employment also poses a challenge to asylum seekers in Guatemala. The country caps the number of foreign workers an employer can hire at 10% and many employers do not recognize Guatemala’s “refugee ID” as valid. With difficulty finding work and a lack of support networks in an unfamiliar place, many asylum seekers choose to abandon their claims and return to their home country.

Only one of the 30 people interviewed by the refugee advocates said they would apply for asylum in Guatemala.

“Many indicated they would return to El Salvador and Honduras despite continuing to express their fear of persecution there,” Schmidtke said.

The refugee advocates recommend terminating the agreement between Guatemala and the U.S. and rescinding the five-year ban on entering the United States for those who were transferred. They also recommend reporting how many asylum seekers were sent to Guatemala along with a breakdown by age, gender, nationality, U.S. ports of entry where they were processed and other information.

“Greater transparency is absolutely important so we can monitor if there are any human rights violations and where are people are going,” Schmidtke said. “We really want the American public and our leaders in the U.S. and in Guatemala to be aware of the real damage and toll this is causing on some of the most vulnerable people in the world.”

A class action challenging the November 2019 policy that authorized transferring asylum seekers to Guatemala is currently pending in federal court in Washington D.C. The United States is also negotiating similar “safe third country” agreements with El Salvador and Honduras, which both have higher murder rates than Guatemala.

The U.S. Justice Department and Department of Homeland Security did not immediately return requests for comments Monday.

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