[Senate Prints 117-13]
[From the U.S. Government Publishing Office]


                                              
117th Congress}                                           { S. Prt.
                           COMMITTEE PRINT
 1st Session  }                                           { 117-13

======================================================================
.                              
                      CRUELTY, COERCION, AND LEGAL

                         CONTORTIONS: THE TRUMP

                     ADMINISTRATIONS UNSAFE ASYLUM

                      COOPERATIVE AGREEMENTS WITH

                        GUATEMALA, HONDURAS, AND
                              EL SALVADOR

                               __________

                        A MAJORITY STAFF REPORT

                      PREPARED FOR THE USE OF THE

                     COMMITTEE ON FOREIGN RELATIONS

                          UNITED STATES SENATE

                    One Hundred Seventeenth Congress

                             FIRST SESSION

                            January 18, 2021

                                     
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  Printed for the use of the Committee on Foreign Relations
  

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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                 COMMITTEE ON FOREIGN RELATIONS        

             ROBERT MENENDEZ, New Jersey, Chairman        
BENJAMIN L. CARDIN, Maryland         JAMES E. RISCH, Idaho
JEANNE SHAHEEN, New Hampshire        MARCO RUBIO, Florida
CHRISTOPHER A. COONS, Delaware       RON JOHNSON, Wisconsin
CHRISTOPHER MURPHY, Connecticut      MITT ROMNEY, Utah
TIM KAINE, Virginia                  ROB PORTMAN, Ohio
EDWARD J. MARKEY, Massachusetts      RAND PAUL, Kentucky
JEFF MERKLEY, Oregon                 TODD YOUNG, Indiana
CORY A. BOOKER, New Jersey           JOHN BARRASSO, Wyoming
BRIAN SCHATZ, Hawaii                 TED CRUZ, Texas
CHRIS VAN HOLLEN, Maryland           MIKE ROUNDS, South Dakota
                                     BILL HAGERTY, Tennessee
               Jessica Lewis, Staff Director            
      Christopher M. Socha, Republican Staff Director            
                  John Dutton, Chief Clerk            



                            C O N T E N T S

                              ----------                              
                                                                   Page

 I. Introduction.................................................     1


II. Subverting U.S. Asylum Law...................................     5

    Background: U.S.-Canada Safe Third Country Agreement.........     7

    Asylum Cooperative Agreements................................     8

    Distorting the Law's Meaning and Intent......................     8


III. Bullying Tactics as Foreign Policy..........................    11

    Internal Government Objections...............................    12

    High-Level Coercion..........................................    13


IV. Trump Administration Secrecy and Obstruction.................    15


 V. Protection Conditions in Central America's Northern Triangle.    17

    Nascent Institutional Capacity...............................    18

    Grave Dangers on the Ground..................................    19

    International Condemnation...................................    20


VI. Implementation in Violation of Human Rights..................    23

    Determinations Based on Partial Truths.......................    23

    Degrading Conditions During Transfer.........................    24

    Coercion and Fear in Guatemala...............................    24

    COVID-19 and Displacement Trends.............................    27


VII. Conclusion, Findings, and Recommendations...................    29

    Principal Findings...........................................    30

    Recommendations..............................................    32


                                ANNEXES

Annex 1: Definitions of Key Terms................................    35


Annex 2: Legal Challenges to Trump Administration Immigration 
  Policies.......................................................    37


Annex 3: Key Documents related to the U.S.-Guatemala Asylum 
  Cooperative Agreement..........................................    41

    Attorney General's Determination.............................    41

    DHS Determination............................................    43

    Diplomatic cable: U.S. Embassy Guatemala Assessment of the 
      Guatemalan Asylum System...................................    45


Annex 4: State Department Responses to Senate Foreign Relations 
  Committee Questions for the Record.............................    52

    State Department Responses submitted December 2, 2019........    52

    State Department Responses submitted December 23, 2019.......    55

    Revised State Department Responses submitted February 14, 
      2020.......................................................    65

    Revised State Department Responses submitted July 9, 2020....    71



                                 (iii)

Annex 5: Correspondence between U.S. Senators and the Trump 
  administration.................................................    79

    Letter from Senators Menendez, Warren et al. to State 
      Department and DHS.........................................    79

    DHS response to Senators Warren and Menendez.................    87

    Letter from Senator Menendez to Assistant Secretary of State 
      Taylor.....................................................    90

    Letter from Senator Menendez to Secretary Pompeo.............    92
                            I. Introduction

                              ----------                              


    Since his first days in office in 2017, President Donald 
Trump has aggressively exploited the U.S. immigration system to 
reduce the number of foreigners allowed entry into the United 
States, and especially to repel refugees, asylum seekers, and 
other vulnerable migrants in need of protection.\1\ From 
separating migrant children from their parents at the border to 
decimating the U.S. Refugee Admissions Program to terminating 
Temporary Protected Status (TPS) for nearly 400,000 individuals 
at risk of deportation, the president has blocked people 
fleeing persecution, torture, and other vital threats from 
protection in the United States and systematically dismantled 
the institutions that made America a humanitarian leader.\2\ 
The Trump administration implemented these policies despite 
record levels of forced displacement globally, with 26 million 
refugees and 4.2 million asylum seekers having fled persecution 
and conflict at the end of 2019.\3\ While these policies have 
faced legal challenges in U.S. courts, their implementation has 
trampled on the United States' history as a haven from 
persecution, betrayed American values, and undermined U.S. 
global leadership. Our retreat--and the mockery this 
administration has made of a global protection regime--has made 
it easier for other countries to shirk their international 
obligations. The result is a severe weakening of migrant and 
refugee protections that leaves millions of people more 
vulnerable and increases instability and the potential for 
conflict.
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    \1\ See Annex 1 for definitions of key terms.
    \2\ Michael D. Shear et al., `` `We Need to Take Away Children,' No 
Matter How Young, Justice Dept. Officials Said,'' The New York Times, 
Oct. 21, 2020; Nick Miroff, ``Trump Cuts Refugee Cap to Lowest Level 
Ever, Depicts Them on Campaign Trail as a Threat and Burden,'' The 
Washington Post, Oct. 1, 2020; ``Playing Politics with Humanitarian 
Protections: How Political Aims Trumped U.S. National Security and the 
Safety of TPS Recipients,'' Democratic Staff Report, Senate Committee 
on Foreign Relations, Nov. 7, 2019.
    \3\ ``Global Trends: Forced Displacement in 2019,'' United Nations 
High Commissioner for Refugees (UNHCR), June 18, 2020, https://
www.unhcr.org/globaltrends2019/.
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    One striking example of the effort to eviscerate long-
standing American protection policy is the set of agreements 
the Trump administration signed with El Salvador, Guatemala, 
and Honduras, the so-called ``Asylum Cooperative Agreements'' 
(ACAs). These agreements follow a pattern of unlawful maneuvers 
designed to close off legal pathways to protection in the 
United States.\4\ Starting in the spring of 2019, the Trump 
administration began negotiations with Guatemala, Honduras, and 
El Salvador on the series of agreements, which stem from a 
little-known ``safe third country'' provision of U.S. 
immigration law. The ACAs serve as mechanisms to repel asylum 
seekers from the United States and relocate them in the 
signatory Central American countries to pursue asylum claims 
there. Designed not just to export U.S. refugee obligations, 
but to do so, for example, by sending Hondurans to Guatemala 
and Guatemalans to Honduras in a cynical game of musical chairs 
in one of the most violent regions of the world, the ACAs are 
particularly damaging both to the people seeking asylum and to 
America's global leadership.
---------------------------------------------------------------------------
    \4\ See Annex 2.
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    Since their inception, the ACAs with Guatemala, Honduras, 
and El Salvador have provoked grave concerns within the U.S. 
government, within the foreign governments negotiating the 
agreements, and among external experts. Based on these 
concerns, and in furtherance of its oversight responsibilities, 
the Senate Foreign Relations Committee (SFRC) Democratic Staff 
investigated the ACAs.
    This report examines the ACAs' impact on the lives of 
refugees and asylum seekers, their tenuous foundation in U.S. 
law, and their role in U.S. foreign policy toward Central 
America. The Report is based on information gleaned through 
Committee hearings, travel to the region, rigorous oversight of 
the State Department, and consultations with international 
organizations and human rights advocates--information learned 
despite the Trump administration's obstruction and efforts to 
hide relevant documentation. Annexes to this report include 
previously unpublished written material provided by the State 
Department to SFRC Democratic Staff. The report's annexes also 
include key documents related to the ACAs that the Trump 
administration refused to disclose to SFRC, ensuring they are 
now freely accessible to the public. SFRC Democratic Staff has 
found the ACAs to be alarmingly abusive in every respect. 
Specifically, SFRC Democratic Staff found that:


   The ACAs appear to violate U.S. law and international 
        obligations by sending asylum seekers and refugees to 
        countries where their lives or freedom would be 
        threatened;

   Determinations by the Attorney General and DHS Acting 
        Secretary that Guatemala provides ``full and fair'' 
        access to asylum were based on partial truths and 
        ignored State Department concerns;

   The Trump administration radically distorted the intent and 
        meaning of the ``safe third country'' provision in U.S. 
        law, constructing the ACAs to function as a broad bar 
        to asylum rather than an exception to the right to seek 
        asylum;

   Asylum seekers transferred from the United States to 
        Guatemala under the ACA were subjected to degrading 
        treatment and effectively coerced to return to their 
        home countries of Honduras or El Salvador, where many 
        feared persecution and harm;

   The White House and DHS used coercive tactics to compel the 
        governments of Guatemala, Honduras, and El Salvador to 
        sign the ACAs; and

   The Trump administration has sought to maintain secrecy, 
        obstruct accountability, and hide its actions from 
        Congress and the American public in its pursuit of ACA 
        implementation.


    This report reveals that the ACAs effectively punish people 
attempting to reach safety in the United States by sending them 
to highly dangerous countries where access to protection from 
persecution and violence exists only on paper. Since 
implementation of the U.S.-Guatemala ACA began over one year 
ago, not one of the 945 asylum seekers transferred from the 
United States to Guatemala has been granted asylum.\5\ Instead, 
the vast majority have been left with the grievous options of 
returning to face serious threats of violence and persecution 
in their home countries, or risking abuse on another journey 
northward. Although ACA implementation was suspended due to 
COVID-19, these counterproductive and unlawful agreements must 
never resume and must be terminated as soon as possible.
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    \5\ United Nations High Commissioner for Refugees Guatemala office 
meeting with SFRC Democratic Staff, Oct. 21, 2020.

                     II. Subverting U.S. Asylum Law

                              ----------                              



    The ACAs provide a disturbing example of how the Trump 
administration has distorted and deliberately disregarded the 
intent and statutory language of U.S. asylum law. Although the 
Refugee Act of 1980 codified the right to seek asylum in the 
United States, the Trump administration has taken the one of 
the few, limited exceptions to this right and applied it far 
beyond the meaning of the law.\6\ Citing the ``safe third 
country'' provision in Section 208(a)(2)(A) of the Immigration 
and Nationality Act (INA), the Trump administration created the 
ACAs with Guatemala, Honduras, and El Salvador as mechanisms to 
remove asylum seekers from the United States without due 
process.\7\ Refugees and others in need of protection from 
torture arriving at the U.S. Southwest border have little 
chance of remaining in the United States as a result of the 
ACAs, based on the fraudulent premise that they will have 
access to protection in Guatemala, Honduras, or El Salvador. 
The stated purpose of the ACAs is to transfer responsibility to 
help alleviate ``the burdens associated with adjudicating 
asylum claims.''\8\
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    \6\ Immigration and Nationality Act, 8 U.S.C. Sec. 1158(a)(1): ``In 
general, any alien who is physically present in the United States or 
who arrives in the United States (whether or not at a designated port 
of arrival and including an who is brought to the United States after 
having been interdicted in international or United States waters), 
irrespective of such alien's status, may apply for asylum in accordance 
with this section. . . .''
    \7\ Id.
    \8\ U.S. Department of Homeland Security, U.S. Citizenship and 
Immigration Services, and U.S. Department of Justice, Executive Office 
of Immigration Review, Implementing Bilateral and Multilateral Asylum 
Cooperative Agreements under the Immigration and Nationality Act, 84 
Fed. Reg. 63995, Nov. 19, 2019.
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    This goal of transferring responsibility distorts the 
vision Congress had for sharing responsibility for refugee 
protection when it adopted the safe third country provision in 
the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996.\9\ Prior to the law's enactment, surging numbers of 
asylum applications prompted some members of Congress to 
advocate for restrictions on access to asylum in the United 
States and they considered mandating that asylum seekers be 
returned to transit countries, such as the United Kingdom, that 
offered protections similar to the United States.\10\ The 
Immigration and Naturalization Service had proposed a 
``Discretionary Denial of Asylum'' regulation in 1994.\11\ The 
outcome of the immigration reform debate was that Congress 
rejected mandated returns, and instead agreed on the 
discretionary safe third country provision as a compromise.\12\ 
The statute states:
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    \9\ See Section 604 of Division C of the Omnibus Consolidated 
Appropriations Act, 1997 (H.R. 3610/P.L. 104-208).
    \10\ Rep. Romano Mazzoli, H.R. 1153, H.R. 1355, and H.R. 1679, 
Asylum Reform Act of 1993, Hearing before the House Judiciary 
Committee, Subcommittee on International Law, Immigration, and 
Refugees, Asylum and Inspections Reform, Apr. 27, 1993, at 215.
    \11\ U.S. Department of Justice, Immigration and Naturalization 
Service, Final Rule, Rules and Procedures for Adjudication of 
Applications for Asylum or Withholding of Deportation and for 
Employment Authorization, 59 Fed. Reg. 62295, Dec. 5, 1994.
    \12\ ``Eight Days and Counting: Panel Continues Reform Bill Mark-
Up, Promises End is Near,'' 72 No. 41 Interpreter Releases 1447, Oct. 
23, 1995, at 3.



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        INA Section 208 (a)(2)(A) Safe third country


        [The right to apply for asylum in the United States] 
        shall not apply to an alien if the Attorney General 
        determines that the alien may be removed, pursuant to a 
        bilateral or multilateral agreement, to a country 
        (other than the country of the alien's nationality or, 
        in the case of an alien having no nationality, the 
        country of the alien's last habitual residence) 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, unless the 
        Attorney General finds that it is in the public 
        interest for the alien to receive asylum in the United 
        States.


    This provision created an exception to the right to seek 
asylum with three clear requirements. First, there must be a 
bilateral or multilateral agreement in place. Second, the 
Attorney General must determine that the country of removal is 
a place where the individual's life or freedom would not be 
threatened on account of a protected ground (race, religion, 
nationality, membership in a particular social group, or 
political opinion). With this language, the provision upholds a 
principle of international human rights law known as non-
refoulement, which protects asylum seekers and refugees from 
removal not only to their country of origin but to any country 
where they would face persecution, torture, or other harm.\13\ 
The provision thus echoes the withholding of removal provision 
established in the 1980 Refugee Act that implements the non-
refoulement obligation in the 1951 Convention relating to the 
Status of Refugees and its 1967 Protocol.\14\
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    \13\ See Annex 1.
    \14\ 8 U.S.C. Sec. 1231(b)(3)(A) states ``the Attorney General may 
not remove an alien to a country if the Attorney General decides that 
the alien's life or freedom would be threatened in that country because 
of the alien's race, religion, nationality, membership in a particular 
social group, or political opinion.'' Article 33 of the 1951 Refugee 
Convention and 1967 Refugee Protocol states: ``No Contracting State 
shall expel or return (``refouler'') a refugee in any manner whatsoever 
to the frontiers of territories where his life or freedom would be 
threatened on account of his race, religion, nationality, membership of 
a particular social group or political opinion.''
---------------------------------------------------------------------------
    Lastly, the safe third country provision requires a 
determination that the asylum seeker would have access to a 
``full and fair'' asylum procedure or ``equivalent temporary 
protection'' in the third country. A recent ruling by the U.S. 
Court of Appeals for the Ninth
Circuit underscored the principle girding the safe third 
country provision's requirements by stating: ``A critical 
component of [the safe third country provision] is the 
requirement that the alien's `safe option' be genuinely 
safe.''\15\
---------------------------------------------------------------------------
    \15\ East Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 845-47, 859 
(9th Cir. 2020). The Ninth Circuit cited as precedent its 1999 
Andriasian v. INS decision: The safe-place requirements embedded in the 
safe third country provision ``ensure that if [the United States] 
denies a refugee asylum, the refugee will not be forced to return to a 
land where he would once again become a victim of harm or 
persecution''--an outcome which ``would totally undermine the 
humanitarian policy underlying the regulation.'' Id. at 30.
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Background: U.S.-Canada Safe Third Country Agreement
    Prior to the ACAs, the United States had utilized the safe 
third country provision only once. The United States signed its 
first safe third country agreement with Canada in December 2002 
after careful consideration of U.S. international legal 
obligations to protect refugees. The U.S.-Canada Safe Third 
Country Agreement (STCA) took over three years of detailed 
negotiations to enter into force and included substantial 
consideration of public comments as it sought to fulfill the 
statute's requirements.\16\ In a hearing of the House 
Subcommittee on Immigration, Border Security, and Claims on the 
draft agreement, a State Department witness testified that the 
U.S. and Canadian asylum systems are ``two of the world's most 
generous and are both fully in keeping with international 
protection standards,'' and that, ``[p]roperly crafted, safe 
third country agreements are fully consistent with refugee 
protection obligations under the 1951 Refugee Convention and 
the 1967 Protocol,'' including the prohibition on 
refoulement.\17\
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    \16\ U.S. Department of Justice, Executive Office of Immigration 
Review, ``Asylum Claims Made by Aliens Arriving From Canada at Land 
Border Ports-of-Entry, 69 Fed. Reg. 69490, Nov. 20, 2004.
    \17\ Statement of J. Kelly Ryan, Deputy Assistant Secretary, Bureau 
of Population, Refugees, and Migration, U.S. Department of State, 
United States and Canada Safe Third Country Agreement, Hearing before 
the House Committee on the Judiciary, Subcommittee on Immigration, 
Border Security and Claims, Oct.16, 2002.
---------------------------------------------------------------------------
    The U.S.-Canada STCA applies only to asylum seekers at land 
ports of entry who have transited or been physically present in 
the other country or who are in transit during removal from the 
other country. Notably, it allows access to legal counsel, 
includes exceptions for family reunification, and invites input 
from non-governmental organizations (NGOs) and monitoring by 
the UN Refugee Agency to ensure its consistency with 
international refugee law.\18\ The U.S.-Canada STCA thus stands 
as an example of faithful interpretation of the safe third 
country provision enshrined in the INA, even if its execution 
is now in question in Canada, due to court challenges alleging 
that the Trump administration's degrading treatment of asylum 
seekers does not make the United States ``safe.''\19\
---------------------------------------------------------------------------
    \18\ U.S. Department of Homeland Security, U.S. Citizenship and 
Immigration Services, and U.S. Department of Justice, Executive Office 
of Immigration Review, Implementing Bilateral and Multilateral Asylum 
Cooperative Agreements under the Immigration and Nationality Act, 84 
Fed. Reg. 64002-03, Nov. 19, 2019; see also Government of Canada, 
``Final Text of Safe Third Country Agreement,'' Refworld, Dec. 5, 2002, 
https://www.refworld.org/pdfid/42d7b9944.pdf.
    \19\ See Canadian Council for Refugees v. Minister for Immigration 
and Minister for Public Safety, 2020 FC 770, Canada Federal Court, 
July, 22 2020, available at https://bit.ly/3pJ5d0M. The Court found the 
agreement invalid, but suspend the effect of the decision for 6 months.
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Asylum Cooperative Agreements
    By contrast, the Trump administration hastily crafted 
separate ACAs with Guatemala, Honduras, and El Salvador--with 
less than two months between the start of negotiations and 
signature for each agreement--and ensured that the agreements 
provide broad authority to transfer asylum seekers from the 
United States to the agreed countries. Under these agreements, 
the United States is responsible for providing asylum screening 
only to unaccompanied children and individuals arriving with 
legal status on its territory. Guatemala, Honduras, and El 
Salvador agreed to receive transfers of any other asylum 
seekers arriving irregularly at or between U.S. ports of entry, 
except for their own nationals or stateless habitual residents 
and convicted criminals.\20\
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    \20\ Agreement Between the Government of the United States of 
America and the Government of the Republic of Guatemala on Cooperation 
Regarding the Examination of Protection Claims, 84 Fed. Reg. 64095, 
Nov. 20, 2019; see also Agreement Between the Government of the United 
States of America and the Government of the Republic of Honduras on 
Cooperation Regarding the Examination of Protection Claims, 85 Fed. 
Reg. 25462, May 1, 2020; see also ``Agreement Between the Government of 
the United States of America and the Government of the Republic of El 
Salvador on Cooperation Regarding the Examination of Protection 
Claims,'' https://bit.ly/3pBBIh5 (last visited on Dec. 17, 2020).
---------------------------------------------------------------------------
    The agreements anticipate implementation plans for the 
transfer process. The implementation plans completed for the 
Guatemala and Honduras ACAs specify certain nationalities as 
eligible for transfer and specify the number of transfers and 
their frequency.\21\ The agreements indicate U.S. support for 
strengthening the ``institutional capacities'' of Guatemala, 
Honduras, and El Salvador, and provide for joint evaluation or 
review three months after entry into force. Although the 
preambles to the agreements refer to each country's obligations 
under international law to protect refugees and uphold the 
principle of non-refoulement, there is no mechanism to monitor 
or enforce these obligations. The agreements therefore make it 
difficult for the United States to ensure that asylum seekers 
will not be refouled from the country of transfer.\22\ 
Additionally, and in further contrast to the U.S.Canada STCA, 
there are no provisions allowing access to legal counsel, 
exceptions for family reunification, or invitations for input 
and monitoring by international humanitarian organizations.
---------------------------------------------------------------------------
    \21\ ``Agreement Between the Government of the United States of 
America and the Government of the Republic of Guatemala on Cooperation 
Regarding the Examination of Protection Claims, Annex 1: Initial 
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85, 
U.T. v. Barr, Case no. 1:20-cv-00116-EGS (D.D.C. Mar. 27, 2020).
    \22\ See, e.g., Michelle Foster, Protection Elsewhere: The Legal 
Implications of Requiring Refugees to Seek Protection in Another State, 
28 Michigan J. Int'l L. 223, 263-268 (2007).
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Distorting the Law's Meaning and Intent
    In creating the ACAs, the Trump administration distorted 
the intent of the INA's safe third country provision in at 
least two important ways. First, although the legislative 
history makes clear that Congress intended the safe third 
country provision to return asylum seekers in the United States 
to a country of transit, the Trump administration exploited the 
lack of specificity in the statute, deliberately crafting the 
ACAs to allow for the transfer of asylum seekers with no 
connection whatsoever to the agreed country of removal.\23\ 
Although they have not yet been implemented in this way, the 
ACAs allow asylum seekers of any nationality to be transferred 
from any location in the United States to the agreed third 
country, regardless of whether they transited through that 
country. Under the ACAs, asylum seekers in the United States 
could be apprehended at an airport (not just the U.S.-Mexico 
land border) and forcibly sent to a country they have never 
transited or visited and where they have no family, friends, or 
cultural links. For example, the implementation plan for the 
U.S.-Honduras ACA would allow U.S. authorities to transfer a 
Brazilian or Mexican asylum seeker to Honduras even if that 
person never passed through Central America.\24\
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    \23\ See Rep. Romano Mazzoli, H.R. 1153, H.R. 1355, and H.R. 1679, 
Asylum Reform Act of 1993, Hearing before the House Judiciary 
Committee, Subcommittee on International Law, Immigration, and 
Refugees, Asylum and Inspections Reform, Apr. 27, 1993, at 215; U.S. 
Department of Justice, Immigration and Naturalization Service, Final 
Rule, Rules and Procedures for Adjudication of Applications for Asylum 
or Withholding of Deportation and for Employment Authorization, 59 Fed. 
Reg. 62295, Dec. 5, 1994; ``Eight Days and Counting: Panel Continues 
Reform Bill Mark-Up, Promises End is Near,'' 72 No. 41 Interpreter 
Releases 1447, Oct. 23, 1995, at 3.
    \24\ Dagoberto Rodriguez, ``Honduras recibira a migrantes de cinco 
nacionalidades,'' La Prensa, Jan. 9, 2020.
---------------------------------------------------------------------------
    Second, although Congress intended the safe third country 
provision to be used as a limited exception to the right to 
seek asylum enshrined in U.S. law, the Trump administration has 
employed the ACAs as a broad bar to any asylum screening by 
U.S. officials.\25\ The ACAs deny asylum seekers the 
opportunity to claim a ``credible'' fear of persecution or 
torture that serves as the standards for initial protection 
screening under U.S. law, and shift responsibility for asylum 
adjudication onto countries that do not provide full and fair 
access to asylum. In decisions to remove individual asylum 
seekers, the ACAs apply the higher standard of being ``more 
likely than not''--proving a probability greater than 50 
percent--that the asylum seeker would face persecution or 
torture in the third country.\26\ The ``more likely than not'' 
would normally only be required at a full hearing before an 
immigration judge on withholding of removal or a Convention 
Against Torture claim--notably a higher standard than the 
``well-founded'' fear for asylum claims at a full hearing. For 
asylum seekers without any meaningful connection to the third 
country under the ACA or without full information that they 
will be removed to the third country, it could be exceedingly 
difficult to prove that their fear meets this higher 
standard.\27\
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    \25\ 8 U.S.C. Sec. 1158(a)(2), titled ``Exceptions,'' lists a 
series of limited exceptions to the right to seek asylum in the United 
States as established in 8 U.S.C. Sec. 1158(a)(1).
    \26\ U.S. Department of Homeland Security, U.S. Citizenship and 
Immigration Services, and U.S. Department of Justice, Executive Office 
of Immigration Review, ``Implementing Bilateral and Multilateral Asylum 
Cooperative Agreements under the Immigration and Nationality Act,'' 84 
Fed. Reg. 63996, Nov. 19, 2019.
    \27\ In a brief of amici curiae submitted in support of the 
plaintiffs in U.T. v. Barr, the National Citizenship and Immigration 
Services Council 119, representing approximately 700 asylum and refugee 
officers tasked with implementing the ACAs wrote: ``The stringent `more 
likely than not' standard required by the ACA Rule has traditionally 
been reserved for use in full-scale removal proceedings administered by 
immigration judges. And for good reason. In those proceedings, 
applicants are afforded substantial protections, such as a full 
hearing, notice of rights, access to counsel, time to prepare, and the 
rights to administrative and judicial review--protections that are not 
available under the ACA Rule.'' Brief for National Citizenship and 
Immigration Services Council as Amici Curiae Supporting Plaintiffs, at 
4, U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. 2020).
---------------------------------------------------------------------------
    The administration's approach distorts the discretion to 
grant asylum codified in the law by turning an exception into a 
rule that denies any opportunity for asylum in the United 
States while purporting to uphold the law's prohibition on 
refoulement.\28\ According to the UN Refugee Agency, 
``withholding of removal does not provide an adequate 
substitute for the asylum process . . . and does not fully 
implement [the 1967 Refugee Protocol] Article 33(1)'s 
prohibition on refoulement.''\29\ This distortion of the law is 
so egregious that a union of approximately 700 U.S. Citizenship 
and Immigration Services (USCIS) asylum and refugee officers 
filed an amicus brief in a court challenge to the ACAs, 
asserting that these agreements force them ``to take actions 
that violate their oath to uphold the nation's laws.''\30\
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    \28\ Immigration and Nationality Act, 8 U.S.C. Sec. 1158(b)(1)(A).
    \29\ Brief for United Nations High Commissioner for Refugees as 
Amici Curiae Supporting Plaintiffs, at 21, East Bay Sanctuary Covenant 
v. Barr, 964 F.3d 832, 845-47 (9th Cir. 2020).
    \30\ Brief for National Citizenship and Immigration Services 
Council as Amici Curiae Supporting Plaintiffs, U.T. v. Barr, at 4, Case 
no. 1:20-cv-00116 (D.D.C. 2020).

                III. Bullying Tactics as Foreign Policy

                              ----------                              



    The White House and DHS pushed through the ACAs with 
bullying tactics and haste, dismissing serious objections by 
the State Department, Congress, Guatemalan authorities, civil 
society, and others. From initial negotiations to entry into 
force, the United States concluded the Guatemala ACA with 
unusual speed--less than six months--compared to over three 
years required to complete the U.S.-Canada Safe Third Country 
Agreement.\31\ The Honduras ACA entered into force after less 
than nine months of negotiations on March 25, 2020.\32\ During 
this intense period, the ACAs dominated U.S. foreign policy in 
the region, underscoring President Trump's singular focus on 
curbing irregular migration without regard for humanitarian or 
other foreign policy interests.
---------------------------------------------------------------------------
    \31\ Negotiations on the U.S.-Canada STCA began on December 3, 
2001. See Statement of J. Kelly Ryan, Deputy Assistant Secretary, 
Bureau of Population, Refugees, and Migration, U.S. Department of 
State, United States and Canada Safe Third Country Agreement, Hearing 
before the House Committee on the Judiciary, Subcommittee on 
Immigration, Border Security and Claims, Oct.16, 2002.
    \32\ Agreement Between the Government of the United States of 
America and the Government of the Republic of Honduras on Cooperation 
Regarding the Examination of Protection Claims, 85 Fed. Reg. 25462, May 
1, 2020.
---------------------------------------------------------------------------
    Throughout its tenure, the Trump administration has 
aggressively pushed migrants and asylum seekers back to Central 
America. It surged U.S. deportations to Guatemala, Honduras, 
and El Salvador, even deporting dozens of COVID-positive 
individuals to Guatemala and exacerbating the pandemic's 
spread.\33\ Under U.S. pressure and with U.S.funding,Mexican 
National Guard troops forcibly pushed back to Guatemala 
hundreds of Central American migrants who were part of a 
caravan headed for the United States in January 2020.\34\ SFRC 
Democratic Staff uncovered a reckless and unauthorized DHS 
operation in January 2020 to transport Honduran migrants in 
Guatemala back to the border with Honduras.\35\ In March 2019, 
President Trump disrupted relations with Guatemala, Honduras, 
and El Salvador by abruptly cutting off most U.S. foreign aid 
to the three countries, halting over $400 million for programs 
designed to address poverty, violence, and other drivers of 
migration to the United States.\36\ The White House's 
suspension of foreign aid instantly weakened the Central 
American governments' negotiating positions.
---------------------------------------------------------------------------
    \33\ TRAC database, ``Latest Data: Immigration and Customs 
Enforcement Removals,'' queried by citizenship and fiscal year, https:/
/trac.syr.edu/phptools/immigration/remove/ (last visited Oct. 27, 
2020); Press Release, Senator Bob Menendez, ``Menendez, Durbin Press 
Trump Administration on Deportation of Covid-19 Positive Migrants,'' 
May 2, 2020, https://bit.ly/3z9eVha.
    \34\ Kevin Sieff, ``U.S.-bound Migrants Clash with Mexican Forces 
at Guatemala Border,'' The Washington Post, Jan. 20, 2020.
    \35\ ``DHS Run Amok? A Reckless Overseas Operation, Violations, and 
Lies,'' Democratic Staff Report, Senate Committee on Foreign Relations, 
Oct. 13, 2020.
    \36\ ``U.S. ending aid to El Salvador, Guatemala, and Honduras over 
migrants,'' Reuters, Mar. 30, 2019; see also ``U.S. Strategy for 
Engagement in Central America,'' Congressional Research Service, June 
30, 2020, https://fas.org/sgp/crs/row/IF10371.pdf.
---------------------------------------------------------------------------
    According to the DHS timeline of ACA negotiations with the 
Government of Guatemala, a senior U.S. government delegation 
``with Executive Leadership from DHS and DOS'' began 
negotiations with Guatemalan government officials during a trip 
to Guatemala on June 12-13, 2019.\37\ Six weeks later on July 
26, while the State Department was still gathering basic 
information on the country's asylum capacity and designing 
programs to help strengthen it, DHS' Acting Secretary and 
Guatemala's Interior Minister signed the ACA in a ceremony at 
the White House. Guatemala remained woefully unprepared when 
ACA implementation began less than four months after the 
agreement was signed, with the first transfer flight arriving 
on November 21, 2019.\38\
---------------------------------------------------------------------------
    \37\ ``Timeline of DHS Engagement with Government of Guatemala re: 
Asylum Agreement, Asylum Processes and Procedures,'' Doc. 85, U.T. v. 
Barr, Case no. 1:20-cv-00116-EGS (D.D.C. Mar. 27, 2020).
    \38\ See Annex 4 (Document 2): Responses from Assistant Secretary 
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak, 
U.S. Department of State, to Questions for the Record Submitted by 
Ranking Member Bob Menendez, Senate Committee on Foreign Relations, 
Sept. 25, 2019; see also Geneva Sands, Priscilla Alvarez & Michelle 
Mendoza, ``Trump Administration Begins Deporting Asylum Seekers to 
Guatemala,'' CNN, Nov. 21, 2020.
---------------------------------------------------------------------------
    U.S. negotiations with the government of Guatemala set a 
precedent that facilitated similarly hasty negotiations with 
Honduras and El Salvador. Both the Honduras and El Salvador 
agreements were signed in September 2019 after only two months 
of negotiations. When SFRC Democratic Staff traveled to the 
region in October 2019 shortly after the ACAs were signed, 
officials in El Salvador's office of the Director General of 
Migration and Immigration said they had not seen the text of 
the agreement. These two agreements have yet to be implemented.
Internal Government Objections
    As negotiations began, on June 12, 2019 the U.S. Embassy in 
Guatemala City transmitted to Washington a diplomatic cable 
containing its assessment of the Guatemalan asylum system. 
Although the assessment approved by the U.S. Ambassador did not 
expressly object to the Guatemala ACA, it detailed a number of 
concerns that would preclude the agreement from meeting the 
law's requirements to uphold the principle of non-refoulement 
and to provide ``full and fair'' access to asylum. For example, 
the cable reported concerns that Guatemala ``does not provide 
sufficient safeguards against refoulement,'' and provided 
detailed data demonstrating that Guatemala was ``among the most 
dangerous countries in the world.''\39\
---------------------------------------------------------------------------
    \39\ Annex 3 (Document 3): U.S. Embassy Guatemala, Diplomatic Cable 
19 Guatemala 536, ``Assessment of the Guatemalan Asylum System,'' June 
12, 2019.
---------------------------------------------------------------------------
    Within the State Department, concerns about the agreement 
with Guatemala grew so serious that some of its lawyers 
resorted to the rarely used ``dissent channel'' to ensure their 
concerns reached the highest levels.\40\ Secretary Pompeo 
reportedly voiced last-ditch objections to the agreement two 
hours before the July 26, 2019 Oval Office signing ceremony, 
telling President Trump the agreement was flawed and a mistake, 
and arguing the Guatemalan government would not be able to 
carry out its terms. He lost the argument to DHS Acting 
Secretary Kevin McAleenan, however, who persuaded the President 
that the agreement would stem the flow of migrants to the 
United States.\41\
---------------------------------------------------------------------------
    \40\ ``Facing the world blindfolded: The dereliction of American 
diplomacy,'' The Economist, Aug. 13, 2020.
    \41\ Michael D. Shear & Zolan Kanno-Youngs, ``Trump Officials 
Argued Over Asylum Deal With Guatemala. Now Both Countries Must Make It 
Work,'' The New York Times, Aug. 2, 2019.
---------------------------------------------------------------------------
    In Guatemala, both candidates heading into the nation's 
presidential run-off election and the Catholic Church 
explicitly opposed the agreement.\42\ Guatemala's human rights 
ombudsman, Jordan Rodas, and other prominent Guatemalans 
petitioned the Constitutional Court to block the agreement, 
arguing that ``Guatemala utterly lacks the institutions able to 
offer migrants the minimal conditions with respect to human 
rights.''\43\ Guatemala's Constitutional Court issued an 
injunction on July 14, 2019, instructing the government not to 
enter into an ACA without approval from the Guatemalan 
Congress.\44\
---------------------------------------------------------------------------
    \42\ Matthew Borges, ``Guatemala high court blocks agreement to 
have migrants apply for asylum there rather than in US,'' Jurist, July 
16, 2019.
    \43\ Id.
    \44\ Id.
---------------------------------------------------------------------------
High-Level Coercion
    President Trump then intensified his coercive tactics, 
tweeting on July 23 that Guatemala ``has decided to break the 
deal they had with us on signing a necessary Safe Third [sic] 
Agreement . . . Now we are looking at the ``BAN,'' . . . 
Tariffs, Remittance Fees, or all of the above.''\45\ Then-
president Jimmy Morales approved the agreement and his Interior 
Minister Enrique Degenhart signed the ACA on July 26, 2019.\46\ 
The Guatemalan government released a statement explaining that 
the agreement was signed ``with the objective of preventing 
serious economic and social repercussions.''\47\
---------------------------------------------------------------------------
    \45\ Donald Trump, @realDonaldTrump, ``Guatemala, which has been 
forming Caravans and sending large numbers of people, some with 
criminal records, to the United States, has decided to break the deal 
they had with us on signing a necessary Safe Third Agreement. We were 
ready to go. Now we are looking at the `BAN,' . . .,'' July 23, 2019, 
https://bit.ly/3cppxyG; see also Donald Trump, @realDonaldTrump, `` . . 
. . Tariffs, Remittance Fees, or all of the above. Guatemala has not 
been good. Big U.S. taxpayer dollars going to them was cut off by me 9 
months ago,'' July 23, 2019, https://bit.ly/3zbpiRJ.
    \46\ Urias Gamaro, ``Degenhart: Guatemala dara refugio a 
salvadorenos y hondurenos para frenar viajes a EE. UU.,'' Prensa Libre, 
Aug. 15, 2019.
    \47\ Gobierno Guatemala, @GuatemalaGob, ``Guatemala y Estados 
Unidos suscriben importante acuerdo de cooperaci,'' July 26, 2019, 
https://bit.ly/3fXLdEc.
---------------------------------------------------------------------------
    The lesson was clear for the leaders of Honduras and El 
Salvador: sign the ACAs or face bullying directly from the U.S. 
President. Honduran foreign ministry officials expressed 
misgivings that their government was bowing to pressure from 
Washington.\48\ Nevertheless, two months later, the foreign 
ministers of El Salvador and Honduras each signed ACAs with the 
United States that are modeled on the Guatemala ACA on 
September 20, 2019 and September 25, 2019, respectively.\49\
---------------------------------------------------------------------------
    \48\ David C. Adams, ``Honduras and US close to signing new 
immigration agreements,'' Univision, Sept. 12, 2019.
    \49\ Colleen Long & Astrid Galvan, ``US, El Salvador Sign Asylum 
Deal, Details to be Worked out,'' Associated Press, Sept. 20, 2019; see 
also U.S. Customs and Border Protection, Fact Sheet: DHS Agreements 
with Guatemala, Honduras, and El Salvador, Nov. 7, 2019, https://
bit.ly/3v4Wtmp.

                   IV. Trump Administration Secrecy 
                            and Obstruction

                              ----------                              



    Despite overtly pressuring foreign countries to enter into 
the agreements and touting them publicly, the Trump 
administration refused to disclose details of the ACAs to the 
public and Congress. Without justification, the Trump 
administration repeatedly refused congressional requests to 
review the ACAs and associated documents, including legal 
determinations allowing the agreements' entry into force, 
implementation plans, and other annexes. Since their inception 
in mid-2019, Senator Menendez and dozens of other members of 
Congress have expressed serious concerns about the ACAs and 
requested relevant documents related to the agreements and 
their implementation. Senator Menendez and SFRC Democratic 
Staff have repeatedly requested relevant documents for over a 
year. The Trump administration's complete refusal to comply 
with these requests has indicated a concerted effort to 
maximize secrecy and obstruct any accountability related to 
implementation of these agreements. Even after many of the 
primary documents were disclosed through litigation, the 
Departments of State and Homeland Security continued to refuse 
requests to provide them directly to Congress.\50\ The Trump 
administration has continued to refuse to provide primary 
documents associated with the agreements, including legal 
determinations allowing the agreements' entry into force, 
implementation plans, and other annexes. To this day, the 
administration has refused to even provide a log of such 
documents so that the public and Congress have clearer 
knowledge of their existence and the full extent of the legal 
architecture the administration put into place to subvert the 
rights of asylum seekers in the United States.
---------------------------------------------------------------------------
    \50\ See Annex 3 for copies of key documents related to the U.S.-
Guatemala Asylum Cooperative Agreement.
---------------------------------------------------------------------------
    At a SFRC hearing on U.S. Policy in Mexico and Central 
America in September 2019, in response to a direct request from 
Senator Menendez, the Acting Assistant Secretary of State for 
Western Hemisphere Affairs publicly committed to provide copies 
of ``all the migration-related instruments, binding or 
nonbinding, annexes, appendices, implementation plans, 
guidance, and other related documents that the administration 
has signed, agreed to, or otherwise joined'' regarding Central 
America.\51\ Following the hearing, Senator Menendez submitted 
written questions again requesting all relevant ACA documents. 
The State Department did not respond to these questions until 
three months later, in late December 2019. The Department's 
responses were largely inadequate--failing to comply with the 
request for documents and revealing a disturbing lack of 
knowledge about the asylum systems of Guatemala, Honduras, and 
El Salvador. For example, in responses submitted long after all 
three ACAs had been signed and a month after implementation had 
begun in Guatemala, the State Department admitted it was still 
``seeking specific information'' about the budgets and staffing 
of each government agency responsible for processing asylum 
claims and could not ``yet provide an accurate estimation of 
Guatemala's asylum processing capacity.''\52\ The State 
Department's responses were so inadequate that SFRC Democratic 
Staff took the highly unusual step of returning the questions 
to the State Department twice--in January 2020 and again in 
February 2020, offering second and third opportunities to 
provide substantive information. The official responses from 
the Trump administration are included in the annex of this 
report and have not previously been made available for public 
review.\53\
---------------------------------------------------------------------------
    \51\ U.S. Policy in Mexico and Central America: Ensuring Effective 
Policies to Address the Crisis at the Border, Hearing before the Senate 
Committee on Foreign Relations, Sept. 25, 2019.
    \52\ See Annex 4 (Document 2): Responses from Assistant Secretary 
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak, 
U.S. Department of State (Dec. 23, 2019), to Questions for the Record 
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign 
Relations, Sept. 25, 2019.
    \53\ See Annex 4.
---------------------------------------------------------------------------
    With growing concern after implementation of the Guatemala 
ACA began, Senator Menendez and 20 other Democratic senators 
wrote to the leadership of the Departments of State and 
Homeland Security in early February 2020 to request information 
and documents related to the ACAs.\54\ The State Department 
failed to respond to this request at all, and DHS predictably 
did not produce the requested documentation in its deficient 
response. After Senator Menendez sent two more letters 
requesting documents pursuant to the ACAs--to the Assistant 
Secretary of State for Legislative Affairs in April 2020 and to 
Secretary Pompeo in May 2020--the State Department still 
refused.\55\ In sum, the State Department and DHS have refused 
five formal requests by Senator Menendez for documents related 
to the ACAs, as well as dozens of follow up requests from SFRC 
Democratic Staff.
---------------------------------------------------------------------------
    \54\ See Annex 5 (Document 1): Letter from Senators Menendez, 
Warren, et al. to Secretary of State Michael Pompeo, Attorney General 
William Barr, and Acting Secretary of Homeland Security Chad Wolf, Feb. 
5, 2020.
    \55\ See Annex 5 (Document 3): Letter from Senator Menendez to 
Assistant Secretary of State for Legislative Affairs Mary E. Taylor, 
Apr. 27, 2020; (Document 4): Letter from Senator Menendez to Secretary 
of State Michael Pompeo, May 27, 2020.
---------------------------------------------------------------------------
    Only in February 2020 did the State Department provide SFRC 
Democratic Staff with limited substantive information about the 
ACAs in writing. This information raised new concerns about the 
agreements. For example, the State Department wrote in February 
2020--nearly 6 months after the ACA was signed--that: ``The 
Embassy asked but was unable to obtain a[n asylum] capacity 
estimate from the government [of El Salvador].''\56\ The fact 
that the administration refused to be transparent with Congress 
has only further fueled distrust in the ACAs' consistency with 
U.S. laws and foreign policy interests.
---------------------------------------------------------------------------
    \56\ Annex 4 (Document 3): Responses from Assistant Secretary 
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak, 
U.S. Department of State (Feb. 14, 2020), to Questions for the Record 
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign 
Relations, Sept. 25, 2019.

                  V. Protection Conditions in Central 
                      America's Northern Triangle

                              ----------                              

    There is broad acknowledgement, even within the Trump 
administration, that Guatemala, Honduras, and El Salvador lack 
institutional capacity to provide protection to asylum seekers 
transferred under the ACAs. Although these governments have 
indicated a willingness to do so, their leaders readily admit 
that their capacity to protect refugees and asylum seekers is 
seriously deficient. Since ACA implementation began one year 
ago, Guatemala's lack of capacity is confirmed by the numbers: 
of the 945 asylum seekers whom the United States transferred to 
Guatemala, not one has been granted asylum.\57\
---------------------------------------------------------------------------
    \57\ United Nations High Commissioner for Refugees Guatemala 
meeting with SFRC Democratic Staff, Oct. 21, 2020.
---------------------------------------------------------------------------
    Guatemala, Honduras, and El Salvador each joined the Marco 
Integral Regional para la Proteccion y Soluciones  (MIRPS, the 
Comprehensive Regional Protection and Solutions Framework), a 
regional, state-led initiative supported through the UN High 
Commissioner for Refugees and Organization of American States 
that aims to implement the Global Compact on Refugees adopted 
in 2017.\58\ However, their asylum laws and procedures remain 
nascent while their people suffer high levels of violence, 
human rights abuses, and displacement. As Guatemala's then 
president-elect, Alejandro Giammattei said in August 2019, just 
after the outgoing government signed the ACA, ``I do not think 
Guatemala fulfills the requirements to be a third safe country. 
That definition doesn't fit us. If we do not have the capacity 
for our own people, just imagine other people.''\59\ Honduras' 
autonomous National Human Rights Commissioner asserted that 
Honduras lacks the capacity and resources necessary to provide 
``dignified treatment'' to individuals transferred under the 
ACA.\60\ In response to the question of whether El Salvador was 
ready to receive asylum seekers through the ACA, President 
Bukele said in December 2019, ``[w]ell, not right now. We don't 
have asylum capacities, but we can build them.''\61\
---------------------------------------------------------------------------
    \58\ United Nations High Commissioner for Refugees, ``About the 
MIRPS,'' Global Compact on Refugees Digital Platform, Oct. 8, 2020, 
https://globalcompactrefugees.org/mirps-en/about-mirps.
    \59\ Sonia Perez D., ``President-elect Says Guatemala Can't do 
Migrant Deal with US,'' AP, Aug. 14, 2019.
    \60\ ``Acuerdo con EEUU debe ser Aprobado por el Congreso: Roberto 
Herrera Caceres,'' La Prensa (Honduras), Nov. 12, 2019.
    \61\ Sharon Alfonsi, ``Our Whole Economy is in Shatters:' El 
Salvador's President Nayib Bukele on the Problems Facing his Country,'' 
60 Minutes, Dec. 19, 2019.
---------------------------------------------------------------------------
    The State Department acknowledged the need to build these 
countries' asylum capacities and continued to seek details 
about their asylum staffing and resources even as DHS began ACA 
implementation.\62\ The State Department's Bureau of 
Population, Refugees, and Migration poured unprecedented levels 
of funding into building protection capacity, including asylum 
capacity, in Guatemala, El Salvador, and Honduras soon after 
the ACAs were signed.\63\ DHS Acting Secretary McAleenan 
announced the State Department's $47 million contribution to 
the UN Refugee Agency (UNHCR) and International Organization 
for Migration (IOM) to help strengthen Guatemala's asylum 
capacity on September 23, 2019.\64\In response to a written 
question from Senator Menendez, the State Department admitted 
in December 2019--after implementation of the Guatemala ACA had 
begun-- that: ``The United States government is actively 
working with our partners and the Government of Guatemala to 
better understand its current capacities.''\65\
---------------------------------------------------------------------------
    \62\ Statement of Michael J. Kozak, Acting Assistant Secretary of 
State, Bureau of Western Hemisphere Affairs, U.S. Department of State, 
U.S. Policy in Mexico and Central America: Ensuring Effective Policies 
to Address the Crisis at the Border, hearing before the Senate 
Committee on Foreign Relations, Sept. 25, 2019.
    \63\ U.S. Department of State, Bureau of Population, Refugees, and 
Migration, ``Fiscal Year 2019 Summary of Major Activities: Year in 
Review,'' June 2020, https://bit.ly/3cqPaiB.
    \64\ ``Acting Secretary McAleenan's Prepared Remarks to the Council 
of Foreign Relations,'' U.S. Department of Homeland Security, Sept. 23, 
2019, https://bit.ly/3fVD8Qp.
    \65\ See Annex 4 (Document 2): Responses from Assistant Secretary 
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak, 
U.S. Department of State (Dec. 23, 2019), to Questions for the Record 
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign 
Relations, Sept. 25, 2019.

Nascent Institutional Capacity
    U.S. officials were fully aware that the asylum systems in 
ACA countries ranged from extremely weak to non-existent. In 
Guatemala, the most advanced of the three countries in terms of 
asylum capacity, the U.S. Embassy's June 2019 assessment of 
Guatemala's asylum system noted that the Comision Nacional para 
Refugiados (CONARE, the National Commission for Refugees) had 
no dedicated full-time staff, that ``asylum is only one of 
their many portfolios,'' and that these staff lacked sufficient 
training. The assessment stated that some provisions of 
Guatemala's Migration Code ``may not be fully compatible with 
the principles of non-refoulement,'' that it ``does not clearly 
state a prohibition on returning individuals who may face 
torture,'' and that ``documentation issued to refugees lacks 
recognition by many public and private institutions.'' SFRC 
Democratic Staff find that these statements presented red flags 
regarding the ACA's compliance with the safe third country 
provision in U.S. law. The embassy further assessed that, 
``[h]istorically, Guatemala has had capacity to process about 
100-150 cases per year,'' or roughly 8-12 cases per month.\66\ 
This number is alarmingly below the expected 1,620 individual 
monthly transfers described in the agreement's initial 
implementation plan or the 945 asylum-seekers actually 
transferred to Guatemala since the ACA became operational over 
one year ago.\67\
---------------------------------------------------------------------------
    \66\ Annex 3 (Document 3): U.S. Embassy Guatemala, Diplomatic Cable 
19 Guatemala 536, ``Assessment of the Guatemalan Asylum System,'' June 
12, 2019.
    \67\ ``Agreement Between the Government of the United States of 
America and the Government of the Republic of Guatemala on Cooperation 
Regarding the Examination of Protection Claims, Annex 1: Initial 
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85, 
U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. Mar. 27, 2020).
---------------------------------------------------------------------------
    After Senator Menendez returned the State Department's 
incomplete responses to his written questions for revision, in 
July 2020 the State Department submitted evidence to SFRC 
showing that asylum capacity in Honduras and El Salvador is far 
weaker than in Guatemala. Neither Honduras nor El Salvador has 
any full-time staff dedicated to refugee or asylum 
determinations, according to the State Department. In 2019, 
Honduras adjudicated only 46 asylum claims and El Salvador 
adjudicated none.\68\ The State Department's 2019 Country 
Reports on Human Rights Practices in Honduras stated: ``The 
government has a nascent system to provide protection to 
refugees, the effectiveness of which had not been fully proven 
by year's end.''\69\ The State Department's July 2020 responses 
to SFRC Democratic Staff noted that ``UNHCR estimates El 
Salvador can adjudicate five cases per year with its current 
personnel and resources.''\70\
---------------------------------------------------------------------------
    \68\ Annex 4 (Document 3): Responses from Assistant Secretary 
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak, 
U.S. Department of State (Feb. 14, 2020), to Questions for the Record 
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign 
Relations, Sept. 25, 2019.
    \69\ Bureau of Democracy, Human Rights, and Labor, ``2019 Country 
Reports on Human Rights Practices: Honduras,'' U.S. Department of 
State, https://bit.ly/3z4oZIp.
    \70\ Annex 4 (Document 3): Responses from Assistant Secretary 
Kirsten D. Madison and Acting Assistant Secretary Michael G. Kozak, 
U.S. Department of State (Feb. 14, 2020), to Questions for the Record 
Submitted by Ranking Member Bob Menendez, Senate Committee on Foreign 
Relations, Sept. 25, 2019.

Grave Dangers on the Ground
    Beyond their limited institutional capacity, Guatemala, 
Honduras, and El Salvador are plagued by such high levels of 
violence, pervasive corruption, and widespread human rights 
abuses that they cannot reasonably be expected to provide 
conditions of safety or adequate protection to refugees and 
asylum seekers. The U.S. Embassy's asylum system assessment 
described Guatemala as ``among the most dangerous countries in 
the world,'' citing a homicide rate approaching 22 per 100,000 
inhabitants ``driven by narco-trafficking activity, gang-
related violence, a heavily-armed population, and police/
judicial system unable to hold many criminals 
accountable.''\71\ The State Department's 2019 Country Reports 
on Human Rights Practices in Guatemala noted that ``[v]iolence 
against women, including sexual and domestic violence, remained 
widespread and serious,'' and also identified violence and 
discrimination against lesbian, gay, bisexual, transgender and 
intersex (LGBTI) individuals as a major concern.\72\ In August 
2020, a transgender asylum seeker in Guatemala was killed after 
fleeing gender-based violence and persecution by gangs in El 
Salvador.\73\ As a result of these dangerous conditions, by the 
end of 2019 more than half a million Guatemalans had fled their 
homes, including over 142,000 refugees and asylum seekers and 
over 200,000 internally displaced persons.\74\
---------------------------------------------------------------------------
    \71\ Annex 3 (Document 3): U.S. Embassy Guatemala, Diplomatic Cable 
19 Guatemala 536, ``Assessment of the Guatemalan Asylum System,'' June 
12, 2019.
    \72\ U.S. Department of State, Bureau of Democracy, Human Rights, 
and Labor, ``2019 Country Reports on Human Rights Practices: 
Guatemala,'' https://bit.ly/2RtYSJI.
    \73\ ``Death of transgender asylum seeker in Guatemala highlights 
increased risks and protection needs for LGBTI community,'' United 
Nations High Commissioner for Refugees (UNHCR), Aug. 6, 2020, https://
bit.ly/3z2kC0e.
    \74\ ``Global Trends: Forced Displacement in 2019,'' United Nations 
High Commissioner for Refugees (UNHCR), June 18, 2020, https://
www.unhcr.org/globaltrends2019/; see also ``GRID 2020: Global Report on 
Internal Displacement,'' Internal Displacement Monitoring Centre, Apr. 
2020.
---------------------------------------------------------------------------
    Conditions in Honduras and El Salvador are even more 
dangerous, with gang violence persisting throughout both 
countries, the highest rates of femicide in the entire Western 
Hemisphere, and serious violence and threats against LGBTI 
persons, according to the State Department's 2019 Country 
Reports on Human Rights Practices.\75\ Honduras' murder rate 
increased in 2019 to 41.2 homicides per 100,000 individuals and 
El Salvador had 36 homicides per 100,000 people.\76\ In El 
Salvador, according to a 2020 U.S. Department of State Overseas 
Security Advisory Council (OSAC) report, ``[v]iolent, well-
armed street gangs . . . concentrate on street-level drug 
sales, extortion, arms trafficking, murder for hire, 
carjacking, and aggravated street crime.''\77\ By the end of 
2019, violent conditions in Honduras had compelled over 247,000 
Hondurans to flee internally and nearly 150,000 Hondurans to 
flee the country entirely as refugees and asylum seekers. At 
the same time, over 450,000 Salvadorans were internally 
displaced by the end of 2019, and nearly 180,000 Salvadorans 
sought protection abroad as refugees and asylum seekers.\78\ 
Taken together, the nearly 470,000 refugees and asylum seekers 
from Guatemala, Honduras, and El Salvador represent a six-fold 
increase over the past five years.\79\
---------------------------------------------------------------------------
    \75\ ``Latin America, the Caribbean and Spain (19 countries): 
Femicide or feminicide, most recent data available (In absolute numbers 
and rates per 100.000 women),'' Gender Equality Observatory for Latin 
America and the Caribbean, https://bit.ly/3z2l4LY.
    \76\ Parker Asmann & Eimhin O'Reilly, ``InSight Crime's 2019 
homicide round-up,'' InSight Crime, Jan. 28, 2020.
    \77\ ``El Salvador 2020 crime & safety report,'' U.S. Department of 
State Overseas Security Advisory Council, Mar. 31, 2020.
    \78\ ``GRID 2020: Global Report on Internal Displacement,'' 
Internal Displacement Monitoring Centre, Apr. 2020; see also ``Global 
Trends: Forced Displacement in 2019,'' United Nations High Commissioner 
for Refugees (UNHCR), June 18, 2020, https://www.unhcr.org/
globaltrends2019/.
    \79\ ``UNHCR Global Report 2019: The Americas,'' United Nations 
High Commissioner for Refugees (UNHCR), https://bit.ly/3uZYFvF.

International Condemnation
    In light of these dangerous conditions and weak 
institutional capacities, international condemnation of the 
ACAs has been swift and unrelenting. While ACA negotiations 
were underway on July 23, 2019, the Inter-American Commission 
on Human Rights (IACHR) expressed concerns about U.S. policies 
toward Central American migrants, with specific attention to 
the ACAs, stating:


        The acts of violence and human rights violations that 
        the IACHR has monitored . . . regarding Guatemala show 
        that these countries would not comply with conditions 
        necessary to offer the security guarantees that a safe 
        third country must guarantee. This agreement could 
        increase the conditions of vulnerability for migrants 
        and refugees and could expose them to greater risks 
        than those that led them to move originally.\80\
---------------------------------------------------------------------------
    \80\ ``IACHR Expresses Deep Concern about the Situation of Migrants 
and Refugees in the United States, Mexico, and Central America,'' 
Inter-American Commission on Human Rights, July 23, 2020, https://
bit.ly/2S9xWzy.


    As soon as the Guatemala ACA was published in the Federal 
Register, the Office of the UN High Commissioner for Refugees 
(UNHCR) issued a statement expressing its ``serious concerns'' 
and calling the ACA ``an approach at variance with 
international law that could result in the transfer of highly 
vulnerable individuals to countries where they may face life-
threatening dangers.'' UNHCR described the asylum systems of 
Guatemala, Honduras, and El Salvador as ``still very 
nascent.''\81\
---------------------------------------------------------------------------
    \81\ ``Statement on new U.S. asylum policy,'' UNHCR, Nov. 19, 2019, 
https://bit.ly/3zima6H.
---------------------------------------------------------------------------
    Non-governmental human rights advocates have condemned the 
ACAs even more forcefully. Amnesty International called them `` 
`unsafe third country' agreements because that is in fact what 
they are.''\82\ The American Immigration Council said the 
Guatemala ACA ``will place thousands of asylum seekers at risk 
in a country ill-prepared to process a high volume of 
applications for protection and with safety problems of its 
own.''\83\ Refugees International stated it ``sees the ACAs 
not, as the [Federal Register publication] suggests, an attempt 
to `share the burden' of protection between countries, but as 
an effort by the United States to shift the responsibility of 
protection to those countries less able to bare it.''\84\ 
Physicians for Human Rights warned that the Guatemala ACA 
``violates the provisions of U.S. law which prohibit `safe 
third country' relocation of asylum seekers unless that third 
country can ensure their protection from persecution and 
guarantee a full and fair asylum process.''\85\
---------------------------------------------------------------------------
    \82\ Charanya Krishnaswami, Advocacy Director for the Americas at 
Amnesty International USA, Interview with Noah Lanard, Mother Jones, 
Feb. 28, 2020.
    \83\ Royce Murray, ``Why a Safe Third Country Agreement with 
Guatemala is Unsafe and Unworkable,'' Immigration Impact, July 29, 
2019, https://bit.ly/2S8vbOX.
    \84\ Andrew Davidson & Lauren Alder Reid, ``Refugees International 
Opposes Asylum Cooperative Agreements with Guatemala, El Salvador, and 
Honduras,'' Refugees International, Dec. 23, 2019.
    \85\ ``U.S. government's new `safe third country' deal with 
Guatemala puts asylum seekers at grave risk,'' Physicians for Human 
Rights, Nov. 20, 2019.

            VI. Implementation in Violation of Human Rights

                              ----------                              

    To fulfill the safe third country provision under U.S. law 
and enable ACA implementation, the Attorney General and DHS 
Secretary each had to make a determination that transferred 
migrants would not be refouled and that the country of transfer 
provides ``full and fair'' access to asylum.\86\ These 
determinations would ensure that the United States fulfills its 
obligations under international laws to uphold the principle of 
non-refoulement as well as the right to seek asylum. Given the 
highly dangerous conditions in Guatemala, Honduras, and El 
Salvador, and the fact that their asylum systems are nascent at 
best, Senator Menendez and SFRC Democratic Staff sought to 
understand how Attorney General William Barr and DHS Acting 
Secretary McAleenan determined that the law's requirements had 
been met. As documents obtained by SFRC Democratic Staff show, 
both officials signed memoranda attesting, ``I find that the 
Guatemalan refugee protection system satisfies the `access to a 
full and fair procedure' requirement of INA section 208 
(a)(2)(A).''\87\ Although the Honduras ACA took effect on March 
25, 2020 and the El Salvador ACA took effect on December 15, 
2020, and despite repeated requests by Senator Menendez and 
SFRC Democratic Staff, the Trump administration has continued 
to hide the determinations by the Attorney General and DHS 
Secretary that enabled that agreements' entry into force.
---------------------------------------------------------------------------
    \86\ U.S. Department of Homeland Security, U.S. Citizenship and 
Immigration Services, and U.S. Department of Justice, Executive Office 
of Immigration Review, Implementing Bilateral and Multilateral Asylum 
Cooperative Agreements under the Immigration and Nationality Act, 84 
Fed. Reg. 63997, Nov. 19, 2019.
    \87\ Annex 3 (Document 1): Memorandum from the Attorney General re 
``Whether Guatemala's Refugee Protection Laws and Procedures Satisfy 
the ``Access to a Full and Fair Procedure'' Requirements of Section 
208(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. 
Sec. 1158(a)(2)(A),'' Nov. 7, 2019, at 2; Annex 3 (Document 2): 
Memorandum from the Secretary re ``Whether Guatemala's Refugee 
Protection Laws and Procedures Satisfy the ``Access to a Full and Fair 
Procedure'' Requirements of Section 208(a)(2)(A) of the Immigration and 
Nationality Act, 8 U.S.C. Sec. 1158(a)(2)(A),'' Oct. 16, 2019, at 2.

Determinations Based on Partial Truths
    The determinations for the Guatemala ACA relied entirely on 
laws and procedures that exist only on paper, never grappling 
with inconvenient facts on the ground demonstrating that 
Guatemala is largely unsafe for asylum seekers. The Department 
of Justice memo drafted by Gene Hamilton, counselor to the 
Attorney General, and the corresponding DHS memo, relied on 
responses to detailed questionnaire, that the Government of 
Guatemala produced with coaching by Trump administration 
officials.\88\ The memos ignored significant concerns about 
gaps in Guatemalan domestic law, minimal operational capacity, 
and dangerous country conditions that the U.S. Embassy clearly 
identified. The memos also failed to consider whether processes 
outlined in existing laws are routinely implemented. SFRC 
Democratic Staff's analysis finds that:
---------------------------------------------------------------------------
    \88\ See Annex 3 (Document 1): Memorandum from the Attorney General 
re ``Whether Guatemala's Refugee Protection Laws and Procedures Satisfy 
the ``Access to a Full and Fair Procedure'' Requirements of Section 
208(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. 
Sec. 1158(a)(2)(A),'' Nov. 7, 2019, at 2; see also Annex 3 (Document 
2): Memorandum from the Secretary re ``Whether Guatemala's Refugee 
Protection Laws and Procedures Satisfy the ``Access to a Full and Fair 
Procedure'' Requirements of Section 208(a)(2)(A) of the Immigration and 
Nationality Act, 8 U.S.C. Sec. 1158(a)(2)(A),'' Oct. 16, 2019, at 2; 
see also Agreement Between the Government of the United States of 
America and the Government of the Republic of Guatemala on Cooperation 
Regarding the Examination of Protection Claims; Questions Regarding 
Access to Full and Fair Procedures, Doc. 85, U.T. v. Barr, Case no. 
1:20-cv-00116 (D.D.C. Mar. 27, 2020).


   The Attorney General and DHS Acting Secretary's 
        determinations cite Article 46 of Guatemala's Migration 
        Code as fulfilling its non-refoulement obligations 
        under the Refugee Convention and Protocol, but fail to 
        consider the gaps identified in U.S. Embassy's 
---------------------------------------------------------------------------
        assessment related to non-refoulement and torture;

   Both determinations cite Article 12 of Guatemala's 
        Migration Code as guaranteeing that all migrants are 
        not to be subject to ``any form of violence,'' yet fail 
        to acknowledge the extreme levels of violence faced by 
        citizens and non-citizens across the country;

   Neither determination considers whether violent gangs 
        committing persecution in Honduras and El Salvador 
        would threaten asylum seekers transferred to Guatemala;

   Neither determination discusses the deadly risks faced by 
        women and LGBTI individuals in Guatemala; and,

   Neither determination considers whether refugee protection 
        would suffer if the volume or speed of transfers far 
        exceeds Guatemala's capacity to process asylum claims 
        and provide reception services, as envisioned in the 
        implementation plan.

Degrading Conditions During Transfer
    Within days of DOJ and DHS issuing their determinations, 
DHS proceeded with implementation despite clear risks to 
individuals' safety and with little consideration for 
overwhelming Guatemala's capacity. The initial implementation 
plan agreed to between the Trump administration and Guatemalan 
authorities to transfer asylum seekers from the United States 
to Guatemala limited transfers to adult nationals of Honduras 
and El Salvador.\89\ Shortly after transfer flights began, 
however, DHS began sending families with children in apparent 
violation of the agreed implementation plan. The agreement 
exempts unaccompanied children and the implementation plan 
makes exceptions for persons with special needs and certain 
health conditions.\90\ However, other highly vulnerable asylum 
seekers, such as LGBTI individuals and survivors of gender-
based violence, were transferred under the Guatemala ACA 
because neither the text of the agreement, the implementation 
plan, nor the guidance to DHS asylum officers referring 
individuals for ACA transfers provides such humanitarian 
exceptions.\91\
---------------------------------------------------------------------------
    \89\ ``Agreement Between the Government of the United States of 
America and the Government of the Republic of Guatemala on Cooperation 
Regarding the Examination of Protection Claims, Annex 1: Initial 
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85, 
U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. Mar. 27, 2020).
    \90\ Agreement Between the Government of the United States of 
America and the Government of the Republic of Guatemala Concerning 
Cooperation Regarding the Examination of Protection Claims, 84 Fed. 
Reg. 64095, Nov. 20, 2019.
    \91\ U.S. Citizenship and Immigration Services, US-Guatemala Asylum 
Cooperation Agreement (ACA) Threshold Screening Guidance for Asylum 
Officers and Asylum Office Staff, Nov. 19, 2019.
---------------------------------------------------------------------------
    Additionally, ACA transfers arrive at the same reception 
center at the airport just outside Guatemala City that receive 
deportees from the United States, including convicted 
criminals.\92\ When ACA implementation began in late November 
2019, this reception center was still under construction 
following an infusion of $1 million from USAID.\93\
---------------------------------------------------------------------------
    \92\ ``Agreement Between the Government of the United States of 
America and the Government of the Republic of Guatemala on Cooperation 
Regarding the Examination of Protection Claims, Annex 1: Initial 
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85, 
U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. Mar. 27, 2020)
    \93\ International Organization for Migration (IOM) Central America 
Meeting with Senate Foreign Relations Committee Democratic Staff, Oct. 
16, 2020.
---------------------------------------------------------------------------
    The Trump administration's rush to implement the ACA 
exposed both U.S. officials' cruel treatment of asylum seekers 
and Guatemala's lack of institutional capacity and experience 
in refugee protection. Migrants transferred under the ACA 
described abusive conditions and degrading treatment while in 
the custody of U.S. Customs and Border Patrol (CBP), including 
being denied medical care and children being separated from 
their parents.\94\ CBP agents grievously misinformed asylum 
seekers, telling them the United States ``wasn't giving asylum 
anymore,'' and denied them meaningful access to an 
attorney.\95\ Of those who received accurate information, many 
without English language skills or legal counsel misunderstood 
and believed they would be able to apply for U.S. asylum from 
Guatemala.\96\ ACA transferees were shackled and transported on 
the same flights as criminal deportees.\97\
---------------------------------------------------------------------------
    \94\ Maya Srikrishnan, ``Border Report: Complaints Detail Abuses 
Against Asylum-Seekers in U.S. Custody,'' Voices of San Diego, Feb. 24, 
2020, https://bit.ly/3ir7DzA.
    \95\ Cora Currier, ``Redirecting Asylum-Seekers from U.S. to 
Guatemala was a cruel farce, report finds,'' The Intercept, May 19, 
2020.
    \96\ Rachel Schmidtke, Yael Schacher, & Ariana Sawyer, 
``Deportation with a Layover: Failure of protection under the U.S.-
Guatemala Asylum Cooperative Agreement,'' Refugees International, May 
19, 2020, https://bit.ly/353gjE0.
    \97\ Nick Miroff, ``ICE Air: Shackled deportees, air freshener and 
cheers. America's one-way trip out,'' The Washington Post, Aug. 10, 
2019; see also Reynaldo Leas Jr., ``Asylum-Seekers Reaching U.S. Border 
are Being Flown to Guatemala,'' NPR, Mar. 11, 2020.

Coercion and Fear in Guatemala
    Once in Guatemala, many ACA transferees, including small 
children, waited hours on the tarmac without adequate food, 
water, or medical assistance.\98\ At the airport, transferees 
were required to tell immigration officials whether they 
intended to apply for asylum in Guatemala, seek assistance from 
the International Organization for Migration to return to their 
country of origin, or depart on their own.\99\ After their 
initial decision, transferees only had 72 hours to change their 
status. This arbitrary 72-hour deadline, imposed by Guatemalan 
authorities, forced transferred individuals and families to 
make major decisions about their future under intense time 
pressure and without sufficient information. Guatemalan 
officials initially refused to allow NGOs to provide 
information or assist migrants at the reception center.\100\ 
The Guatemalan government provides no money to civil society 
organizations to care for ACA transferees after their 
arrival.\101\
---------------------------------------------------------------------------
    \98\ Rachel Schmidtke, Yael Schacher, & Ariana Sawyer, 
``Deportation with a Layover: Failure of protection under the U.S.-
Guatemala Asylum Cooperative Agreement,'' Refugees International, May 
19, 2020, https://bit.ly/3w3peRL.
    \99\ ``Agreement Between the Government of the United States of 
America and the Government of the Republic of Guatemala on Cooperation 
Regarding the Examination of Protection Claims, Annex 1: Initial 
Implementation Plan; Phased Initial Implementation Plan,'' Doc. 85, 
U.T. v. Barr, Case no. 1:20-cv-00116 (D.D.C. Mar. 27, 2020).
    \100\ International Organization for Migration (IOM) Central 
America Meeting with SFRC Democratic Staff, Oct. 16, 2020.
    \101\ Schmidtke, Schacher, & Sawyer, Deportation with a Layover, at 
30.
---------------------------------------------------------------------------
    Given the dangerous and intimidating conditions they faced, 
it is not surprising that very few asylum seekers transferred 
under the ACA actually applied for asylum in Guatemala. The 
degrading treatment, arbitrary time pressure, and inadequate 
information provided both in the United States and in 
Guatemala, all contributed to a coercive context for asylum 
seekers' decision-making that was further compounded by fear of 
the country's high levels of violence, and the psychological 
traumas of persecution and displacement. Of the 945 asylum 
seekers transferred to Guatemala under the ACA, only 18 (less 
than two percent) are actively pursuing asylum claims there, 
and not one has received a decision.\102\ Many transferred 
asylum seekers said they felt unsafe in Guatemala and that 
their only option was to return to Honduras or El Salvador 
where at least they could access support networks while they 
decide their next move. One Honduran woman transferred under 
the ACA said: ``Guatemala? It's the same as Honduras. The 
difference is that in Guatemala I don't have relatives.''\103\ 
Another Honduran woman said of the gang members who threatened 
to kill her and her son: ``Guatemala is the first place they 
would look for me.'' She went into hiding in Honduras following 
her ACA transfer to Guatemala.\104\
---------------------------------------------------------------------------
    \102\ UNHCR Guatemala meeting with SFRC Democratic Staff, Oct. 21, 
2020.
    \103\ Kirk Semple, ``Asylum Seekers Say U.S. is Returning Them to 
the Dangers They Fled,'' The New York Times, Mar. 17, 2020.
    \104\ Id.

                   Table 1: ACA Transfers to Guatemala
                     November 2019-March 2020 \105\
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total ACA Transfers                               945
Indicated protection concerns              108 of 130                83%
ACA Asylum applications                            34               3.5%
  Abandoned                                        16               1.6%
  Active                                           18               1.9%
Guatemala ACA asylum decisions                      0                  0
------------------------------------------------------------------------
\105\ UNHCR Guatemala meeting with SFRC Democratic Staff, Oct. 21, 2020.
  The percentages reflected on this table are based on the number of
  individuals that UNHCR and its partners were able to interview and not
  on the total number of ACA transfers.

    Neither the State Department, DHS, or any other component 
of the U.S. government is responsible for monitoring the safety 
of asylum seekers transferred to Guatemala under the ACA. 
Without an ability to follow up, it is difficult to confirm, 
but seems highly likely that there are specific cases in which 
the ACA has violated the prohibition on refoulement in U.S., 
Guatemalan, and international law. Civil society groups were 
able to interview only 130 ACA transferees upon reception in 
Guatemala, but found that a large proportion (108 out of 130) 
indicated they had protection concerns.\106\ Based on this 
assessment, a rate of protection concerns of 83 percent and an 
asylum application rate of less than two percent, it is clear 
to SFRC Democratic Staff that the vast majority of asylum 
seekers transferred under the Guatemala ACA did not have ``full 
and fair'' access to asylum.
---------------------------------------------------------------------------
    \106\ Id.

COVID-19 and Displacement Trends
    The outbreak of the COVID-19 pandemic resulted in border 
closures and travel restrictions around the world, including 
Guatemala's decision to suspend ACA implementation. Although 
the Honduras ACA entered into force on March 25, 2020 and the 
El Salvador ACA entered into force on December 15, 2020, the 
requisite determinations by the Attorney General and the DHS 
Acting Secretary of ``full and fair'' access to asylum in 
Honduras and El Salvador have not been made available to 
Congress or the public. The COVID-19 pandemic has delayed the 
start of ACA transfer flights from the United States to 
Honduras. Still, international organizations and NGOs have 
expressed concern that the Honduras ACA's implementation plan 
indicates it would apply to nationals of Mexico, Guatemala, El 
Salvador, Brazil and Nicaragua, noting that two asylum seekers 
from Nicaragua were brutally murdered in Honduras in 2019.\107\ 
Surging migrant apprehensions at the U.S. southern border, 
ongoing migrant caravans from Central America, and other data 
show that anti-immigrant policies have not had the deterrent 
effect intended by the Trump administration.\108\ Evidence of 
Guatemala ACA transferees re-grouping to journey again towards 
the United States demonstrates the futility of ``burden 
shifting'' policies when asylum seekers are forced to flee 
persecution, violence, and other grave threats to their lives 
and freedom at home and throughout the region. Dangerous 
conditions in Central America, compounded by economic 
contractions related to COVID-19 and the devastating impact of 
Hurricanes Eta and Iota, are push factors more powerful than 
U.S. immigration policy.\109\
---------------------------------------------------------------------------
    \107\ ``Human Rights First Warns Against Implementation of Honduras 
Asylum Agreement During Pandemic,'' Human Rights First, Apr. 30, 2020, 
https://bit.ly/3g1Yxrp; see also ``Cuerpos de nicaragenses refugiados 
en Honduras son enviados a su pais,'' La Tribuna, June 29, 2019, 
https://bit.ly/3x6JClq.
    \108\ Nick Miroff, ``Migrant Arrests at the U.S. Border Rose to a 
13-month High in September,'' The Washington Post, Oct. 14, 2020.
    \109\ Natalie Kitroeff, ``Two Hurricanes Devastated Central 
America. Will the Ruin Spur a Migration Wave?'' The New York Times, 
Dec. 4, 2020.

             VII. Conclusion, Findings, and Recommendations

                              ----------                              


    During negotiations with the Trump administration, the 
Government of Guatemala sought to change the name of the 
agreement from ``safe third country agreement'' to 
``Cooperation Agreement for the Assessment of Protection 
Requests.''\110\ In agreeing to this request, the Trump 
administration's decision to remove the word ``safe'' from the 
name of all three agreements was an implicit acknowledgement 
that Guatemala, Honduras, and El Salvador are not actually safe 
for the transfer of asylum seekers. In this way, the name 
change suggests that the agreements do not comply with the 
``safe third country'' provision of U.S. law.
---------------------------------------------------------------------------
    \110\ Sam Levin, ``Trump Says Agreement Reached with Guatemala to 
Restrict Asylum Seekers,'' The Guardian, July 26, 2019.
---------------------------------------------------------------------------
    As the Trump administration pursued the ACAs, it shrouded 
the details of the agreements in secrecy and obstructed 
oversight by members of Congress, attempting to hide its 
callous abuse of the human rights of vulnerable people. 
President Trump's bullying tactics bruised U.S. relations in 
the region, and resulted in agreements that the governments of 
Guatemala, Honduras, and El Salvador do not have the capacity 
to implement. But the most shameful aspects of the ACAs are 
their grave consequences for refugees and asylum seekers who--
under the Guatemala ACA--suffered degrading treatment and were 
coerced into situations where their lives and freedom remain in 
danger.
    In an era of historic levels of forced displacement in the 
Western Hemisphere and around the world, the ACAs are 
especially cruel and counterproductive. They distort U.S. 
asylum law and accompany a series of pernicious policies to 
exclude asylum seekers and refugees from protection in the 
United States. As the director of the American Immigration 
Lawyers Association, Ruben Reyes said: ``The purpose of this 
administration's policy with asylum seekers is to put one more 
finger around the necks of refugees . . . [t]o try and make it 
so difficult, so onerous, so awful that they just give 
up.''\111\
---------------------------------------------------------------------------
    \111\ Megan Janetsky, ``Asylum Seekers in Limbo Look to US election 
With Hope and Fear,'' Al Jazeera, Nov. 1, 2020.
---------------------------------------------------------------------------
    The ACAs inflict harm not only on the lives of individuals 
and families, but on U.S. national interests. Eighteen states 
and the District of Columbia called the Guatemala ACA 
``inimical to the interest of the States and the public in 
ensuring that those in need of protection are not sent into the 
hands of their persecutors,'' and noted ``asylees' significant 
economic and community contributions.''\112\ Former White House 
chief of staff Denis McDonough has said that ``the United 
States' historic commitments to refugees, immigration, and 
asylum are sources of great strength rather than sources of 
weakness or threat.''\113\ When the United States demonstrates 
leadership in protecting refugees and asylum seekers, other 
countries often follow suit, taking critical steps toward 
global cooperation to address instability and resolve conflicts 
and crises. Simply put, protection of refugees and asylum 
seekers is in the interest of the American public and U.S. 
national security.
---------------------------------------------------------------------------
    \112\ Amicus Curiae Brief of the States of California, Connecticut, 
Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, 
Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode 
Island, Vermont, Washington, and the District of Columbia in Support of 
Plaintiffs' Motion for Summary Judgment and Permanent Injunction, U.T. 
v. Barr, at 12, Case no.1:20-cv-00116 (D.D.C. 2020).
    \113\ ``Denis McDonough on the Future of Migration,'' Georgetown 
Journal of International Affairs, Nov. 30, 2018, https://bit.ly/
3cpLnSP.
---------------------------------------------------------------------------
    The Trump administration views the ACAs as a model to be 
replicated with other countries around the world.\114\ This is 
precisely the opposite of what needs to happen. Shifting 
responsibility for refugee protection onto countries so 
dangerous their own citizens are fleeing en masse only 
demonstrates inhumanity and cruelty while exacerbating the dire 
conditions that fuel the ongoing global forced migration 
crisis. Especially in an era of unprecedented levels of forced 
displacement around the world, these harmful policies must end. 
The United States must terminate the ACAs. Congress must pass 
legislation to clarify its intent and strengthen accountability 
for legitimately safe third country agreements. More broadly, 
U.S. policies must restore our leadership in upholding the 
right to seek asylum and in protecting refugees at home and 
around the world. The latter is imperative to truly and 
sustainably increase responsibility sharing with other 
countries so that future safe third country agreements might be 
possible, but more importantly, so that refugees and asylum 
seekers find protection and displacement crises are resolved.
---------------------------------------------------------------------------
    \114\ Elliot Spagat, ``Top Trump Advisor Wants More Nations to 
Field Asylum Claims,'' Associated Press, Oct. 24, 2020.

PRINCIPAL FINDINGS
   The ACAs appear to violate U.S. law and international 
        obligations by posing serious risks of refoulement. 
        Guatemala, Honduras, and El Salvador are not safe 
        places for refugees and asylum seekers as the law 
        underpinning these agreements requires. These countries 
        are among the most dangerous countries in the world. 
        High levels of violence, especially gang violence and 
        gender-based violence, pose grave risks for many 
        refugees and migrants. All three countries have 
        ``nascent'' asylum systems that lack institutional 
        capacity to screen asylum seekers transferred under the 
        ACAs and to uphold their legal obligations to protect 
        refugees from refoulement.

   Of the 945 asylum seekers transferred to Guatemala under 
        the ACA since November 2019, to date not one has been 
        granted asylum. The numbers underscore the fact that 
        asylum seekers subject to the ACA lack access to asylum 
        and remain doubly at risk of refoulement to Guatemala 
        as their country of transfer and to their country of 
        origin.

   Determinations by the Attorney General and DHS Acting 
        Secretary that Guatemala provides ``full and fair'' 
        access to asylum were based on partial truths and 
        ignored critical State Department input and widely held 
        information about the country's general level of 
        violence. They relied on a paper review of the 
        country's Migration Code that failed to consider the 
        U.S. Embassy's assessment of Guatemala's asylum 
        capacity and dangerous conditions, as well as other 
        evidence that Guatemala does not meet the requirements 
        of the safe third country provision in U.S. law.

   The Trump administration radically distorted and willfully 
        disregarded the intent and statutory language related 
        to safe third country agreements. Although Congress 
        intended the safe third country provision to return 
        asylum seekers in the United States to a safe country 
        of transit, the Trump administration crafted the ACAs 
        to allow asylum seekers of any nationality to be 
        transferred from any location in the United States to 
        the agreed third country. The ACAs serve not as an 
        exception to the right to seek asylum enshrined in U.S. 
        law, but as a broad bar to any asylum screening by U.S. 
        officials. They deny asylum seekers the opportunity to 
        claim a reasonable fear of persecution, and hold them 
        to the higher standard of being ``more likely than 
        not'' to face persecution or torture in the country of 
        removal.

   Asylum seekers transferred to Guatemala under the ACA were 
        subjected to degrading treatment and effectively 
        coerced to return home where many feared persecution 
        and harm. Although a large proportion of transferees 
        indicated protection concerns, they were not fully 
        informed about their right to seek asylum, lacked legal 
        counsel, and faced arbitrary deadlines and other 
        conditions that precluded ``full and fair'' access to 
        asylum. DHS did not provide guidance to exempt highly 
        vulnerable asylum seekers from transfer, such as LGBTI 
        individuals and survivors of gender-based violence. 
        Transferring responsibility for asylum processing 
        exacerbates the problem of forced displacement rather 
        than resolving it.

   The White House and DHS used coercive tactics to hastily 
        conclude the ACAs, dismissing serious objections by 
        Guatemalan authorities, civil society, the State 
        Department, and others. The State Department took a 
        subordinate role in ACA negotiations. President Trump 
        rejected State Department concerns, and bullied the 
        government of Guatemala into signing the agreement with 
        threats of visa sanctions and tariffs.

   The Trump administration continues to maintain secrecy and 
        obstruct accountability in its pursuit of ACA 
        implementation. It has repeatedly refused to provide 
        documents related to the ACAs to Congress for over a 
        year and failed to respond fully to written questions 
        from Senator Menendez and SFRC Democratic Staff.

RECOMMENDATIONS

 1. The Biden administration must immediately terminate the 
        Asylum Cooperative Agreements with Guatemala, Honduras, 
        and El Salvador: Pending termination, the United States 
        should immediately suspend all implementation. Any 
        future consideration of countries for negotiation of 
        safe third country agreements (STCAs) should not occur 
        without a set of clear criteria established by the 
        State Department, in consultation with international 
        and non-governmental organizations, as to what is a 
        safe place for the transfer of asylum seekers. STCA 
        negotiations should not begin until such criteria are 
        met.


 2. Congress must ensure it plays a more active role in the 
        enactment and implementation of all future safe third 
        country agreements, either by:

   a. Passing legislation requiring the State Department to 
            submit the details of a Safe Third Country 
            Agreement to Congress for review and for Congress 
            to approve or disapprove each agreement; or

   b. Requiring the Secretary of State to submit to Congress a 
            certification before the transfer of aliens 
            pursuant to a Safe Third Country Agreement begins 
            that such country meets certain requirements prior 
            to the use of relevant appropriations.


 3. Congress must amend INA Section 208(a)(2)(A) to:

   a. Ensure that asylum seekers are not transferred to safe 
            third countries that they have not transited or to 
            which they have no meaningful connection;

   b. Require that the Secretary of DHS, in consultation with 
            the Secretary of State, establish in each future 
            safe third country agreement clear and specific 
            criteria for exceptions based on humanitarian and 
            public interests;

   c. Require determinations concerning whether a potential 
            safe third country provides ``full and fair'' 
            access to asylum to be made jointly by Secretary of 
            State, Attorney General, and Secretary of Homeland 
            Security, and that it be informed by input from the 
            United States Ambassador, to the relevant country; 
            and

   d. Authorize judicial review of executive branch safe third 
            country determinations.


 4. The DHS Inspector General and Office of Civil Rights must 
        investigate and review abusive conditions and degrading 
        treatment of ACA transferees: Without discrimination, 
        asylum seekers in custody at the U.S. southern border 
        should be treated with dignity and respect for human 
        rights. They should be provided accurate and full 
        information by trained USCIS asylum officers about 
        their right to seek asylum in the United States, and be 
        allowed access to legal counsel and language 
        interpretation. U.S. officers must make special 
        accommodations in their treatment of highly vulnerable 
        asylum seekers such as pregnant women, LGBTI 
        individuals, survivors of gender-based violence, and 
        children.


 5. U.S. foreign policy toward Central America should take a 
        holistic approach to addressing the drivers of forced 
        displacement: Rather than the Trump administration's 
        singular focus on stemming irregular migration, U.S. 
        policies and programs should aim to reduce gang 
        violence and gender-based violence, to combat 
        corruption and strengthen access to justice, and to 
        reduce poverty and protect human rights, particularly 
        for LGBTI individuals and other marginalized 
        populations. The State Department should continue to 
        strengthen asylum systems, responses to internal 
        displacement, resettlement processing, and other 
        protection mechanisms in Central America through 
        support to international organizations and should 
        authorize Migration and Refugee Assistance funding to 
        NGOs working in the region.


 6. The Governments of Guatemala, Honduras, and El Salvador 
        should dedicate resources to strengthen their capacity 
        to protect refugees, asylum seekers, and internally 
        displaced persons: They should implement national 
        action plans to advance the Comprehensive Regional 
        Protection and Solutions Framework (MIRPS) in 
        coordination with international organizations.

                                ANNEX 1

                        Definitions of Key Terms

                              ----------                              

    Refugee: A refugee is ``any person who is outside of any 
country of such person's nationality or, in the case of a 
person having no nationality, is outside any country in which 
such person last habitually resided, and who is unable or 
unwilling to return to, and is unable or unwilling to avail 
himself or herself of the protection of, that country because 
of persecution or a well-founded fear of persecution on account 
of race, religion, nationality, membership in a particular 
social group, or political opinion.''\115\ This definition 
under U.S. law largely mirrors the refugee definition outlined 
in the 1951 Convention relating to the Status of Refugees and 
its 1967 Protocol. Having acceded to the Refugee Convention and 
Protocol, Guatemala, Honduras, and El Salvador agreed to this 
definition. They also have adopted the broader refugee 
definition under the 1984 Cartagena Declaration, which includes 
``persons who have fled their country because their lives, 
safety or freedom have been threatened by generalized violence, 
foreign aggression, internal conflicts, massive violation of 
human rights or other circumstances which have seriously 
disturbed public order.''\116\
---------------------------------------------------------------------------
    \115\ See INA 101(a)(42), 8 U.S.C. Sec. 1101(a)(42).
    \116\ See Article III(3) of the Cartagena Declaration on Refugees, 
adopted by the Colloquium on the International Protection of Refugees 
in Central America, Mexico and Panama, Cartagena de Indias, Colombia, 
Nov. 22, 1984, https://bit.ly/3gxV3fl.


    Asylum-Seeker: The UN Refugee Agency defines an asylum-
seeker as an individual who is seeking international protection 
and whose request for asylum has not yet been finally decided 
on.\117\ Although not every asylum-seeker will ultimately be 
recognized as a refugee, every refugee was initially an asylum-
seeker.
---------------------------------------------------------------------------
    \117\ UN High Commissioner for Refugees, The 10-Point Plan in 
Action, 2016--Glossary, Dec. 2016, https://bit.ly/355TtM1.


    Migrant: The International Organization for Migration 
defines a migrant as any person who is moving or has moved 
across an international border or within a State away from his/
her habitual place of residence, regardless of (1) the person's 
legal status; (2) whether the movement is voluntary or 
involuntary; (3) what the causes for the movement are; or (4) 
the length of the stay.\118\
---------------------------------------------------------------------------
    \118\ United Nations, Global Issues, ``Migration,'' https://bit.ly/
3iqGpZJ (last visited Dec. 16, 2020).


    Protection: In the context of international humanitarian 
action, the Inter-Agency Standing Committee defines protection 
as ``all activities aimed at obtaining full respect for the 
rights of the individual in accordance with the letter and the 
spirit of the relevant bodies of law (i.e., international human 
rights law, international humanitarian law, international 
refugee law).''\119\ Protection includes measures to stop or 
prevent violence, abuse, coercion and deprivation of civilians 
affected by crises as well as efforts to restore safety and 
dignity to their lives. Governments have primary responsibility 
for the protection of persons on their territory. Major 
protection challenges for refugees and asylum seekers often 
include barriers to asylum, lack of access by humanitarian 
organizations to those in need of assistance, gender-based 
violence, family separation, and forcible recruitment into 
armed groups, among others.
---------------------------------------------------------------------------
    \119\ Inter-Agency Standing Committee, ``Policy: Protection in 
Humanitarian Action,'' Oct. 2016, at 2.


    Non-refoulement: A cardinal principle of refugee protection 
codified in Article 33 of the 1951 Convention relating to the 
Status of Refugees and its 1967 Protocol, non-refoulement most 
commonly refers to the obligation or principle of not returning 
a refugee to a territory where there is a risk that his or her 
life or freedom would be threatened on account of race, 
religion, nationality, membership of a particular social group, 
or political opinion, although the concept could apply to 
broader forms of harm as well. Article 3 of the 1984 Convention 
Against Torture contains a non-refoulement obligation with 
respect to torture. The principle of non-refoulement applies 
not only with respect to the individual's country of origin but 
to any country where he or she would face persecution. Properly 
applied, the principle protects those who are seeking 
international protection even if they have not been formally 
recognized as a refugee.\120\ Indeed, the threat of refoulement 
is often a concern where a country lacks effective systems or 
procedures for determining refugee status or conducts mass 
deportations. The United States implements its non-refoulement 
obligations through a provision on withholding of removal in 
INA Section 241(b)(3).
---------------------------------------------------------------------------
    \120\ UN High Commissioner for Refugees, Note on Non-Refoulement 
(Submitted by the High Commissioner), 38th Session, Aug. 23, 1977, 
http://www.refworld.org/docid/3ae68ccd10.html.

                                ANNEX 2

               Legal Challenges to Trump Administration 
                          Immigration Policies

                              ----------                              


    The Trump administration has pursued a series of 
restrictive immigration policies that have faced serious 
challenges in U.S. courts. While not an exhaustive list, the 
policies facing legal challenges below indicate a pattern of 
unlawful maneuvers to close pathways for refugees and asylum 
seekers in need of protection in the United States.

1. Family Separation at the U.S.-Mexico Border
    The lawsuit Ms. L v. ICE and a writ for habeas corpus was 
filed in the U.S. District Court for the Southern District of 
California on February 26, 2018 by an asylum seeker from the 
Democratic Republic of Congo who was forcibly separated from 
her then-six-year old daughter. Represented by the American 
Civil Liberties Union, the plaintiff sued U.S. Immigration and 
Customs Enforcement (ICE), the U.S. Department of Homeland 
Security (DHS), and other government agencies for the forcible 
separation of over 2,000 asylum-seeking families who arrived at 
the southern border without documentation. In June 2018, the 
judge issued a preliminary injunction requiring U.S. 
immigration authorities to reunite most separated families 
within 30 days and to reunite children younger than age five 
within two weeks, however the Trump administration continued to 
separate families. The case is ongoing in the district 
court.\121\
---------------------------------------------------------------------------
    \121\ See Ms. L v. United States Immigration & Customs Enf't 
(``ICE''), 415 F. Supp. 3d 980 (S.D. Cal. 2020).

2. State and Local Consent for U.S. Refugee Admissions Program
    On November 21, 2019, HIAS, Inc., Church World Service, 
Inc., and Lutheran Immigration & Refugee Service, Inc. filed 
the lawsuit HIAS, Inc. v. Trump in the U.S. District Court for 
the District of Maryland. The plaintiffs, challenged the 
``Enhancing State and Local Involvement in Refugee 
Resettlement'' Executive Order 13888, alleging that this action 
by the Trump administration violates the Refugee Act of 1980, 
the Administrative Procedure Act (APA), and principles of 
federalism. The plaintiffs argued that Executive Order 13888 
makes an unprecedented change to the refugee resettlement 
process by mandating that refugees not be resettled in the 
United States unless the state and locality where they are to 
be resettled take the affirmative step of providing written 
consent. On January 15, 2020, Judge Peter J. Messitte granted 
the plaintiffs' motion for a preliminary injunction and 
ultimately issued a nationwide injunction enjoining Executive 
Order 13888. The Fourth Circuit affirmed the nationwide 
preliminary injunction on January 8, 2021.\122\
---------------------------------------------------------------------------
    \122\ Miriam Jordan, ``Judge Halts Trump Policy That Allows States 
to Bar Refugees,'' The New York Times, Jan. 15, 2020; see also HIAS, 
Inc. v. Trump, 415 F. Supp. 3d 669 (D. Md. 2020); Ann E. Marimow, 
``Trump's Refugee Resettlement Policy Blocked by Federal Appeals 
Court,'' Washington Post, Jan. 8, 2021; see also HIAS, Inc. v. Trump, 
Case no. 20-1160, 2021 WL 69994 (4th Cir. Jan. 8, 2021).

3. Termination of Temporary Protected Status
    The lawsuit NAACP v. DHS was filed in the U.S. District 
Court of Maryland on January 24, 2018. Represented by its own 
counsel, the NAACP challenged DHS' November 2017 termination of 
Temporary Protected Status (TPS) for Haitians living in the 
United States. On March 23, 2020, the judge granted the 
defendants' motion to stay proceedings due to the 
interconnected nature of parallel litigation and the COVID-19 
pandemic. This case is ongoing.\123\
---------------------------------------------------------------------------
    \123\ See NAACP v. United States Dep't of Homeland Sec., Case No. 
18-0239, 2020 U.S. Dist. LEXIS 49818 (D. Md. 2020).
---------------------------------------------------------------------------
    Nine TPS recipients and five U.S. citizen children of TPS 
holders filed the class action lawsuit Ramos et al v. Nielsen 
in the U.S. District Court in the Northern District of 
California on March 12, 2018. The plaintiffs argued that the 
new DHS rule for determining whether to end TPS designations 
for immigrants from countries facing various crises violated 
their rights under the Fifth Amendment as well as requirements 
set out by the APA. On October 3, 2018, the judge granted a 
preliminary injunction in which the court determined that 
plaintiffs would suffer irreparable harm, including family 
separation and being forced to move back to countries where 
neither the children nor adults have any remaining ties. DHS 
subsequently appealed the decision to the Ninth Circuit. On 
September 14, 2020, the Ninth Circuit vacated the preliminary 
injunction having found that the district court did not have 
jurisdiction to review the plaintiffs APA claim because the TPS 
statute itself states that the Secretary of Homeland Security 
possesses full and unreviewable discretion in designating 
foreign states under the statute. After vacating the 
preliminary injunction, the Ninth Circuit remanded the case to 
the district court for further proceedings. The plaintiffs are 
likely to challenge the Ninth Circuit's decision.\124\
---------------------------------------------------------------------------
    \124\ See Ramos v. Nielsen, 975 F.3d 872 (9th Cir. 2020).
---------------------------------------------------------------------------
    Four noncitizens, on behalf of a proposed class of 
Temporary Protected Status recipients, filed the lawsuit Moreno 
v. Nielsen against DHS and the U.S. Citizenship and Immigration 
Services (USCIS) on February 22, 2018. The case was filed in 
the U.S. District Court for the Eastern District of New York to 
challenge the defendants' denial of their applications for 
lawful permanent resident status. On May 18, 2020, the court 
denied the plaintiffs' motion for a preliminary injunction. The 
court stated that the plaintiffs failed to make a ``strong 
showing'' of irreparable harm needed to obtain injunctive 
relief. The case is ongoing.\125\
---------------------------------------------------------------------------
    \125\ See Moreno v. Nielsen, 460 F. Supp. 3d 291 (E.D.N.Y. 2020).

4. Asylum Cooperative Agreements
    On January 15, 2020, the lawsuit U.T. v. Barr was filed in 
U.S. District Court for the District of Columbia by six 
plaintiffs, along with the Tahirih Justice Center and Las 
Americas Immigrant Advocacy Center. Represented by the 
Americans Civil Liberties Union, National Immigrant Justice 
Center, Center for Gender & Refugee Studies, and Human Rights 
First, the lawsuit challenged the Trump administration's new 
policy of removing asylum seekers to Guatemala pursuant to an 
``asylum cooperative agreement.'' The plaintiffs alleged that 
the government's new policy violated the APA, the Immigration 
and Nationality Act (INA), and Foreign Affairs Reform and 
Restructuring Act of 1998 (FARRA). The case is ongoing.\126\
---------------------------------------------------------------------------
    \126\ See U.T. v. Barr, Case no. 1:20-cv-00116-EGS (D.D.C. 2020).

5. The ``Interim Final Rule''
    The East Bay Sanctuary Covenant, Al Otro Lado, Innovation 
Law Lab, and the Central American Resource Center in Los 
Angeles filed the lawsuit East Bay Sanctuary Covenant v. Barr 
with the U.S. District Court in the Northern District of 
California on July 16, 2019. Represented by the American Civil 
Liberties Union, Southern Poverty Law Center, and the Center 
for Constitutional Rights, the plaintiffs challenged an interim 
final rule promulgated by the Attorney General and Acting 
Secretary of Homeland Security, which made noncitizens who 
transit through another country prior to reaching the southern 
border of the United States ineligible for asylum. On July 24, 
2019, the plaintiffs' motion for a preliminary injunction to 
prevent the government from taking any further action to 
implement the interim final rule was granted by the court. On 
August 16, 2019, the Ninth Circuit denied a stay for the 
application of the injunction inside its boundaries, but 
granted the stay for all locations outside the Ninth Circuit. 
On September 9, 2019, the judge granted the plaintiffs' motion 
to restore the nationwide scope of the injunction, which was 
subsequently appealed by the defendants. The Supreme Court 
stayed the re-instated injunction on September 11, 2019 pending 
the Ninth Circuit's decision on the appeal.\127\ The Ninth 
Circuit affirmed the injunction in July 2020 and the case is 
ongoing.\128\
---------------------------------------------------------------------------
    \127\ Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (Sept. 11, 
2019).
    \128\ East Bay Sanctuary Covenant v. Barr, Case no. 10-16485, (9th 
Cir. 2020).

6. Migrant Protection Protocols
    On February 14, 2019, Innovation Law Lab and its co-
plaintiffs filed the lawsuit Innovation Law Lab v. Wolf before 
the U.S. District Court for the Northern District of 
California. Co-plaintiffs of Innovation Law Lab include Al Otro 
Lado, Central American Resource Center of Northern California, 
Centro Legal de la Raza, University of San Francisco School of 
Law Immigration & Deportation Defense Clinic, and Tahirih 
Justice Center. The co-plaintiffs alleged that the Trump 
administration's Migrant Protection Protocols, commonly 
referred to as the ``Remain in Mexico'' policy, violates the 
INA, the APA, and the United States' duty under domestic and 
international law to not return people to dangerous conditions. 
On April 8, 2019, the district court judge ruled that the 
policy is unlawful and temporarily blocked its implementation. 
On May 7, 2019, the Ninth Circuit stayed the lower court's 
injunction. While a panel of the Ninth Circuit held that the 
policy is unlawful and lifted the stay in February 2020, the 
Supreme Court ultimately granted the federal government's 
application for a stay of the lower court's preliminary 
injunction that had blocked the implementation of the ``Remain 
in Mexico'' policy on March 11, 2020. The stay will remain in 
place until the Supreme Court resolves the government's appeal 
from the Ninth Circuit proceedings.\129\
---------------------------------------------------------------------------
    \129\ Stephen Manning, ``Innovation Law Lab v. Wolf,'' Innovation 
Law Lab, Feb. 28, 2020, https://bit.ly/2TSfn3d; see also Ramon Valdez, 
``U.S. Supreme Court Allows `Remain in Mexico' To Stay In Effect, 
Innovation Law Lab, Mar. 11, 2020, https://bit.ly/3w7DsBh.

7. Revisions to Existing Asylum Practices
    On December 21, 2020, Pangea Legal Services and Immigration 
Equality filed separate lawsuits, Pangea Legal Services v. DHS 
and Immigration Equality v. DHS, in the U.S. District Court for 
the Northern District of California to block the implementation 
of a final rule issued by the Department of Homeland Security 
and the Department of Justice on December 11, 2020. The rule, 
scheduled to go into effect on January 11, 2021, would have 
radically changed U.S. legal standards for asylum claims, 
including by barring aliens from asylum if they spent 
significant time in a third country before arriving in the 
United States, and effectively establishing a presumption 
against asylum claims rooted in gender-based persecution.\130\ 
On January 8, 2021, the court granted a nationwide preliminary 
injunction against the rule pending further proceedings, in 
part based on the likelihood of irreparable harm without 
injunctive relief.\131\
---------------------------------------------------------------------------
    \130\ Procedures for Asylum and Withholding of Removal; Credible 
Fear and Reasonable Fear Review, 85 Fed. Reg. 80274, 8 C.F.R. parts 
208, 235, 1003, 1208, 1235 (Dec. 11, 2020).
    \131\ Pangea Legal Services. v. U.S. Dep't of Homeland Sec., Case 
no. 20-Cv-09253-JD, 2021 WL 75756, at *1 (N.D. Cal. Jan. 8, 2021).
---------------------------------------------------------------------------

                                ANNEX 3

              Key Documents Related to the U.S.-Guatemala 
                            Asylum Agreement

                              ----------                              


              Document 1: Attorney General's Determination


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


                     Document 2: DHS' Determination


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


         Document 3: Diplomatic cable: U.S. Embassy Guatemala 
               Assessment of the Guatemalan Asylum System


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


                                ANNEX 4

                     State Department Responses to 
                     SFRC Questions for the Record

                              ----------                              


                 Document 1: State Department Responses
                      --Submitted December 2, 2019


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


                 Document 2: State Department Responses
                     --Submitted December 23, 2019


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


             Document 3: Revised State Department Responses
                       --Submitted Feb. 14, 2020


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


             Document 4: Revised State Department Responses
                        --Submitted July 9, 2020


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                ANNEX 5

                 Correspondence Between U.S. Senators 
                      and the Trump Administration

                              ----------                              


                Document 1: Letter from Sen. Menendez, 
                 Warren, et al. to State Dept. and DHS


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

               Document 2: DHS Response to Feb. 5, 2020 
                         Warren-Menendez Letter


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]



               Document 3: Letter from Sen. Menendez to 
                  Assistant Secretary of State Taylor


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]



                 Document 4: Letter from Sen. Menendez 
                          to Secretary Pompeo


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                  [all]