February 06, 2020

Warren, Menendez Lead Senators Questioning Agreements Used by the Trump Administration to Expel Asylum Seekers to Northern Triangle Countries

Touted in the State of the Union Address, the Trump Administration's implementation of these agreements is cruel and inhumane, may violate the law

Text of the Letter (PDF)

Washington, D.C. -- United States Senator Elizabeth Warren (D-Mass.), along with Senate Committee on Foreign Relations Ranking Member Robert Menendez (D-N.J.) and 19 of their Senate colleagues, sent a letter to Secretary of State Mike Pompeo, Attorney General William Barr, and Acting Secretary of Homeland Security Chad Wolf requesting information about the negotiation and implementation of three international "asylum cooperative agreements" (ACAs) signed by the U.S. Department of Homeland Security (DHS). The ACAs enable the Trump Administration to deport asylum seekers to Guatemala, El Salvador, and Honduras--countries collectively referred to as the "Northern Triangle"--regardless of where the migrants are from or where they have transited en route to the United States. As the President noted in his State of the Union address on Tuesday, the Administration has transferred hundreds of Honduran and Salvadoran asylum seekers to Guatemala in the past few weeks and plans to implement the ACA with Honduras shortly. In their letter, the senators raised concerns about the legality of these transfers, the lack of asylum capacities in the three countries, and the great dangers faced there by asylum seekers.

Joining the letter are Senators Richard Blumenthal (D-Conn.), Tim Kaine (D-Va.), Kirsten E. Gillibrand (D-N.Y.), Benjamin L. Cardin (D-Md.), Edward J. Markey (D-Mass.), Christopher S. Murphy (D-Conn.), Bernard Sanders (I-Vt.), Jeffrey A. Merkley (D-Ore.), Thomas R. Carper (D-Del.), Kamala D. Harris (D-Calif.), Jacky Rosen (D-Nev.), Cory A. Booker (D-N.J.), Richard J. Durbin (D-Ill.), Patty Murray (D-Wash.), Mazie K. Hirono (D-Hawai'i), Catherine Cortez Masto (D-Nev.), Amy Klobuchar (D-Minn.), Jack Reed (D-R.I.), and Christopher A. Coons (D-Del.).

"The Trump Administration's approach to asylum seekers is not only inhumane and potentially illegal; it could also overwhelm the asylum systems of Guatemala, El Salvador, and Honduras and further destabilize those countries," the senators wrote in their letter to the agencies. "As such, these agreements could have serious and detrimental implications for U.S. national security."

The ACAs raise serious legal and procedural questions. In general, the law enables migrants arriving or physically present in the United States to apply for asylum. However, the Immigration and Nationality Act creates exceptions to who may apply for asylum. In particular, it authorizes the executive branch to remove migrants to instead seek asylum in "safe third countries" with which the United States has entered into agreements. Importantly, those agreements must satisfy two primary requirements: in the view of the Attorney General, the country must provide access to a "full and fair" asylum procedure, and must be a place in which the migrant would not face persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion."

However, the senators raised doubts about whether transferred asylum seekers would have access to a "full and fair" asylum procedure in these countries. "The notion that Guatemala or the other two Northern Triangle countries offers such a procedure strains credulity-their systems for determining asylum claims are, at best, deeply flawed and under-resourced, and at worst, practically non-existent," the lawmakers wrote. The senators also raised concerns about the safety of asylum seekers transferred to the Northern Triangle, noting that the State Department's own human rights reports describe the dangers of "rape, femicide, forced child labor, and threats against the LGBTQ community."

The senators also drew attention to the rushed process by which the agreements were drafted and implemented. They noted that the Northern Triangle countries may have signed the ACAs under duress, and that Secretary Pompeo himself reportedly "called the agreement flawed and a mistake" and told President Trump that "the Guatemalan government did not have the ability to carry out its terms."

To address their concerns, the senators asked a series of questions about the State Department's involvement with the negotiation of the ACAs, the assessment by the Attorney General and the Secretary of Homeland Security that the Northern Triangle countries offer "full and fair" asylum procedures, and the implementation of the ACAs. They requested answers by February 18, 2020.

The letter is part of Senator Warren's ongoing efforts to protect the health and safety of migrants and asylum seekers through Senate oversight:

  • Following a DHS Inspector General (IG) report regarding unsafe conditions and mistreatment of immigrants at a number of privately-run immigration detention centers, Senator Warren opened investigations into two of the country's largest private prison contractors and the contractor responsible for auditing detention facilities. She released findings that revealed that none of the companies had taken responsibility for egregious failures identified by the DHS IG and demonstrated an ongoing dispute between the auditor and the IG about the quality of the auditor's inspections. 
  • In November 2019, Senator Warren sent a letter to the DHS's Office for Civil Rights and Civil Liberties (CRCL) requesting information regarding CRCL's oversight of U.S. Immigrations and Customs Enforcement (ICE) detention facilities and ICE's reported misuse of solitary confinement at those facilities. She also requested an investigation into reports of solitary confinement being used to coerce participation in "voluntary" work programs at immigration detention facilities.
  • Also in November 2019, Senator Warren joined Senator Merkley in requesting the public release of a DHS report detailing the flaws in the Remain in Mexico program.
  • Last year Senator Warren joined Ranking Member Menendez and colleagues in calling on the Trump Administration to end the Remain in Mexico program.
  • Senator Warren and Senator Tammy Baldwin (D-Wisc.) wrote to DHS, ICE, and U.S. Customs and Border Protection (CBP) last year, citing reports of abuse and neglect of transgender migrants and asylum seekers, and urging the Trump Administration to reverse policies-including misuse of solitary confinement-that are harming these vulnerable populations.
  • In May 2019, the senator opened an investigation into the accreditation process for private detention operators following widespread reports of mismanagement and poor conditions for detainees in facilities nationwide.
  • She joined Senator Brian Schatz (D-Hawai'i) and seven other senators calling for the federal government to investigate federal contractors after disturbing reports of hungry, sick, and unbathed children being held in federal contractor facilities near the border were made public. She also wrote to CBP requesting answers on steps being taken to protect children and called for the Homestead Temporary Shelter for Unaccompanied Children to be shut down. 
  • In September 2019, Senator Warren expressed serious concerns over DHS's announcement that migrant families currently detained at CBP holding centers would not be vaccinated for the flu ahead of the flu season. She and Representative Rosa DeLauro (D-Conn.) followed up with another letter in December 2019.