Not a Lexis Advance subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
Sen. Elizabeth Warren, Feb. 6, 2020
"Warren, Menendez Lead Senators Questioning Agreements Used by the Trump Administration to Expel Asylum Seekers to Northern Triangle Countries
Touted in the State of the Union Address, the Trump Administration's implementation of these agreements is cruel and inhumane, may violate the law
Text of the Letter (PDF)
Washington, D.C. -- United States Senator Elizabeth Warren (D-Mass.), along with Senate Committee on Foreign Relations Ranking Member Robert Menendez (D-N.J.) and 19 of their Senate colleagues, sent a letter to Secretary of State Mike Pompeo, Attorney General William Barr, and Acting Secretary of Homeland Security Chad Wolf requesting information about the negotiation and implementation of three international "asylum cooperative agreements" (ACAs) signed by the U.S. Department of Homeland Security (DHS). The ACAs enable the Trump Administration to deport asylum seekers to Guatemala, El Salvador, and Honduras--countries collectively referred to as the "Northern Triangle"--regardless of where the migrants are from or where they have transited en route to the United States. As the President noted in his State of the Union address on Tuesday, the Administration has transferred hundreds of Honduran and Salvadoran asylum seekers to Guatemala in the past few weeks and plans to implement the ACA with Honduras shortly. In their letter, the senators raised concerns about the legality of these transfers, the lack of asylum capacities in the three countries, and the great dangers faced there by asylum seekers.
Joining the letter are Senators Richard Blumenthal (D-Conn.), Tim Kaine (D-Va.), Kirsten E. Gillibrand (D-N.Y.), Benjamin L. Cardin (D-Md.), Edward J. Markey (D-Mass.), Christopher S. Murphy (D-Conn.), Bernard Sanders (I-Vt.), Jeffrey A. Merkley (D-Ore.), Thomas R. Carper (D-Del.), Kamala D. Harris (D-Calif.), Jacky Rosen (D-Nev.), Cory A. Booker (D-N.J.), Richard J. Durbin (D-Ill.), Patty Murray (D-Wash.), Mazie K. Hirono (D-Hawai'i), Catherine Cortez Masto (D-Nev.), Amy Klobuchar (D-Minn.), Jack Reed (D-R.I.), and Christopher A. Coons (D-Del.).
"The Trump Administration's approach to asylum seekers is not only inhumane and potentially illegal; it could also overwhelm the asylum systems of Guatemala, El Salvador, and Honduras and further destabilize those countries," the senators wrote in their letter to the agencies. "As such, these agreements could have serious and detrimental implications for U.S. national security."
The ACAs raise serious legal and procedural questions. In general, the law enables migrants arriving or physically present in the United States to apply for asylum. However, the Immigration and Nationality Act creates exceptions to who may apply for asylum. In particular, it authorizes the executive branch to remove migrants to instead seek asylum in "safe third countries" with which the United States has entered into agreements. Importantly, those agreements must satisfy two primary requirements: in the view of the Attorney General, the country must provide access to a "full and fair" asylum procedure, and must be a place in which the migrant would not face persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion."
However, the senators raised doubts about whether transferred asylum seekers would have access to a "full and fair" asylum procedure in these countries. "The notion that Guatemala or the other two Northern Triangle countries offers such a procedure strains credulity-their systems for determining asylum claims are, at best, deeply flawed and under-resourced, and at worst, practically non-existent," the lawmakers wrote. The senators also raised concerns about the safety of asylum seekers transferred to the Northern Triangle, noting that the State Department's own human rights reports describe the dangers of "rape, femicide, forced child labor, and threats against the LGBTQ community."
The senators also drew attention to the rushed process by which the agreements were drafted and implemented. They noted that the Northern Triangle countries may have signed the ACAs under duress, and that Secretary Pompeo himself reportedly "called the agreement flawed and a mistake" and told President Trump that "the Guatemalan government did not have the ability to carry out its terms."
To address their concerns, the senators asked a series of questions about the State Department's involvement with the negotiation of the ACAs, the assessment by the Attorney General and the Secretary of Homeland Security that the Northern Triangle countries offer "full and fair" asylum procedures, and the implementation of the ACAs. They requested answers by February 18, 2020."