This Obscure Treaty Is the Blueprint for Trump’s New Asylum Rule

The Trump administration's latest attempt to end asylum protections for Central American migrants bears close resemblance to a formal agreement the U.S. has with only one other country: Canada.

The new rule, which took effect Tuesday, aims to make asylum claims ineligible if an asylum-seeker passes through another country first.

"Until Congress can act, this interim rule will help reduce a major pull factor driving irregular migration to the United States," Homeland Security Acting Secretary Kevin K. McAleenan said in a statement about the new rule.

The Canada-U.S. Safe Third Country Agreement, which the two nations signed in 2002, requires most asylum-seekers to request protection in the first of those safe countries in which they arrive, either the U.S. or Canada. Once they've begun the asylum process in one country, they can't start it in the other.

"What the administration is doing is trying a back door around safe third country agreements," attorney Lee Gelernt said Monday. Gelernt is deputy director of the Immigrants' Rights Project at the American Civil Liberties Union, which on Tuesday sued the administration over the new rule.

In November, Gelernt successfully persuaded U.S. District Judge Jon Tigar to halt another Trump administration policy aimed at blocking migrants from seeking asylum if they entered the U.S. from Mexico in between official border crossings. Department of Justice attorneys argued that allowing that policy would help the administration's ongoing attempts to broker a safe third-party country agreement with Mexico.

Gelernt says that even if the administration had managed to broker safe third country agreements with Mexico or Guatemala, the ACLU could challenge them on the grounds that, for asylum-seekers, those nations are not safe like Canada.

"When you have an agreement with another country, you can require people to apply for asylum in those countries if and only if that country can provide a safe, effective and meaningful asylum hearing," Gelernt said.

Unlike Canada, Mexico and Guatemala lack the legal infrastructure to provide protections to asylum-seekers looking for a safe haven, scholars say.

"Guatemala's legal infrastructure is weak, to say the least. Mexico has offered very limited legal protections for Central Americans," said Dean Kevin Johnson of the UC Davis School of Law. "That makes it very different from the safe third country agreement with Canada.  Few would dispute that Canada has an asylum system that's efficient, generous and fair."

Origins of the Canada-U.S. Safe Third Country Agreement

Canada and the U.S. began discussions about a safe third country agreement less than two months after the 9/11 terrorist attacks in the U.S., when both nations agreed to coordinate more on safety along their shared border.

When the Canada-U.S. Safe Third Country Agreement took effect in December 2004, one stated purpose was to protect refugees by creating a framework to govern how the two countries would share responsibility for hearing asylum claims.

A 2006 U.S. government review of the deal cites a finding by the U.N. High Commissioner for Refugees that cooperation between nations could "enhance the international protection of refugees by ensuring the orderly handling of asylum applications."

In the report, the global growth of migration is cited as one reason for the deal, as well as the need to crack down on abuse by bad actors, including smugglers and traffickers. The report also says some refugees may pass up earlier opportunities to obtain asylum in one country "in order to claim refugee protection in a country of their choice" — for reasons that having nothing to do with the need for protection from persecution or torture.

Third Party Agreement Is Problematic Under Trump

Even with its robust immigration system, Canada has encountered domestic political fallout from the safe third country agreement since President Trump took office in 2017. That's due to a loophole in the agreement, which allows asylum-seekers to start the process anew in a second country by crossing between ports of entry.

That's exactly what started happening en masse shortly after the Trump administration's travel ban was announced in January 2017. The ban prompted a wave of asylum-seekers streaming north from the U.S. into Canada illegally.

Captivating images of Canadian Mounties rescuing helpless migrants in the dead of winter made the rounds on social media. At the time, Canadian Prime Minister Justin Trudeau sealed his role as foil to President Trump when he tweeted the hashtag #WelcomeToCanada as he made it clear that his nation's doors were open to immigrants.

That open-door policy would go on to cause headaches for Trudeau, who is preparing for the next national election in October. The masses of refugees that headed into Canada as Trump took office have put pressure on municipalities like Montreal and Toronto, which have struggled to figure out how to house migrants escaping what they would have once considered a safe country: the U.S.

This post has been updated.