On December 15, 2020, the U.S. Department of Homeland Security (DHS) concluded implementing the Asylum Cooperative Agreement (ACA) with El Salvador. Nicknamed the “Safe Third Country” program, the agreement will return certain migrants apprehended at the U.S. southern border to apply first in El Salvador for asylum or select other humanitarian protections before they are eligible to do the same in the U.S.

The Trump Administration and El Salvador signed the ACA in September 2019. It has undergone numerous enactment negotiations cumulating in the final implementation of the policy this month. Similar agreements were signed in September and July of 2019 with Guatemala and Honduras, respectively, and are continuing to progress into full execution. These ACAs stem directly from the Interim Final Rule signed in July 2019 entitled Asylum Eligibility and Procedural Modification.

Acting Secretary of Homeland Security Chad F. Wolf, appointed by President Trump in November 2019, stated the agreements are a “critical step in the establishment of a truly regional approach to migration,” relieving the United States of the majority of the burden in accommodating these requests. Numerous policy updates passed by DHS under the Trump Administration stress that asylum is a “discretionary benefit.”

DHS clarifies in the final rule that the removal of migrants due to the ACAs is not an indication that the migrants would not have been admitted to the United States for asylum benefits; rather the removal is a way to evenly distribute asylum-seekers among the United States and Central American countries.

DHS does state that a migrant will not be removed to El Salvador (or to other signatories of similar agreements) if the immigration judge or the Attorney General determines the individual’s life is in danger “in that third country on account of race, religion, nationality, membership in a particular social group, or political opinion.” Interestingly, a Final Rule signed by DHS and the DOJ on December 11, 2020, just days before this one, adds new, narrower definitions to what qualifies to be classified in terms such as “particular social group” or “political opinion.”

According to DHS, by the end of August in Fiscal Year 2019, 72% of the migrants apprehended at the Southwest border of the United States were from El Salvador, Honduras, and Guatemala. This statistic, according to DHS, is one of the main reasons why the United States entered into agreements with the three countries. DHS further justifies the rule by stating “the U.S. asylum system remains overtaxed” with a backlog of 474,327 asylum cases in Fiscal Year 2019, and that many of these claims are “meritless” and place an “extraordinary strain” on the U.S. immigration system.

8 U.S. Code section 1158 states that a person eligible for asylum is “any alien who is physically present in the United States or who arrives in the United States … irrespective of such alien's status.” Those who wish to claim asylee status must apply within one year of arriving in the United States. Additionally, they have the sole burden of establishing they are running from persecution that is a result of their “race, religion, nationality, membership in a particular social group, or political opinion.”

Unlike an asylee, a refugee is a migrant who fears the same persecution as stated above, but requests refugee protection in a third country other than their home country or the country from which they wish to obtain protection. A refugee must go through an extensive vetting process that involves DHS, the State Department, and usually the United Nations.

To be considered for admission as a refugee, an applicant must be referred to DHS by the U.S. Refugee Admissions Program, which has its own list of priorities and limited quotas set by the President every year. Also, a refugee is not admissible to the United States if they are firmly resettled in another country, which can be difficult to disprove since the refugee process is usually lengthy.

This finalized rule comes days after the Department of Homeland Security and the Department of Justice finalized a rule streamlining the asylum adjudication process. The joint final rule claims to expedite the asylum process by giving immigration judges further discretion on whether a case is "frivolous." Individuals with cases deemed to have no merit will no longer have the opportunity to review the evidence or argue their case in a hearing; rather, they will be denied immediately.

Additionally, this finalized rule lists many inherently negative factors for immigration judges to consider when reviewing asylum applications. One of these factors is whether or not an applicant has applied for asylum in a country the applicant traveled through to get to the United States. If they hadn’t, the new rule makes this factor sway the adjudicator to not give the applicant a favorable outcome, further implementing the ACA into codified law.

Critics of the agreements question the ethics of turning asylum seekers away and whether these Central American countries have the infrastructure to provide adequate asylum benefits to migrants. However, these agreements are not new in United States history. In 2002, the United States signed an ACA with Canada; the two countries implemented it in 2004. However, that agreement provides that “one country or the other (but not both) will assume responsibility for processing the claims of asylum seekers.” Whereas the DHS policy states it is spreading the burden of asylum seekers in the recent ACAs, there is no reciprocity for El Salvador, Guatemala, or Honduras.