Jacob Tingen: Today, we're going to take a quick break from our asylum discussion. I mean, what we're talking about today is related to asylum, but for the past couple of episodes, I've been talking specifically about why Central American immigrants are coming and claiming asylum. Today, we're going to kind of change topics a bit, and just address something that I'm seeing a lot on the news, which is these Safe Third Country Agreements that the Trump administration is trying to get with Central American countries. That's the topic today. Let's get started.
Announcer: You're listening to Nation of Immigrants.
President Obama: America is a nation of immigrants.
Announcer: A podcast about US immigration law, with your host, Jacob Tingen.
Jacob Tingen: All right, so as I said, Safe Third Country Agreements. First, I wanted to dive into the Immigration and Nationality Act. It's always a good idea to know where these concepts come from. I feel like that's one of the things that we can do better to kind of raise the discussion, is to make sure we're all talking about the same thing. So if you dive into the Immigration and Nationality Act section 208, you get this, "Authority to apply for asylum. Any alien who's physically present in the United States, irrespective of their status at the time, may apply for asylum." And then it moves on to number some exceptions to that general rule.
Jacob Tingen: The first exception that's listed is safe third country. Okay. It says "The authority to apply for asylum 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 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 full and fair procedure for determining a claim to asylum." So unless, of course, the Attorney General finds that it's in the public interest to keep them here for some reason, which they're not likely to do these days.
Jacob Tingen: So that's the language. I wanted to kind of address this concept and then address the language more specifically. So for starters, we see a lot of Venezuelan immigrants these days. Obviously, there are specific challenges that Venezuelans are facing. I know that there's a movement to get TPS for Venezuelans and that can't come quickly enough. I can tell you that. But we meet many immigrants from Central America, South America who have European ancestry. So sometimes they will have dual citizenship. And so if they flee from a central or South American country to the US and they have dual citizenship, one of the responses is, "Well, why should America protect you if you can relocate to a country in Europe?"
Jacob Tingen: Let's say you're from Venezuela and you have citizenship in Italy or Spain, well, are you going to be persecuted in Italy or Spain? Are you undergoing the same hardships in Italy or Spain that you are undergoing in Venezuela? If you have citizenship there, you should look there first for protection from the hardships you're passing through before you look to the US of A. I get that. It makes sense to me. Why wouldn't we encourage people to go where they can easily get settled and get safe?
Jacob Tingen: So this concept as a general rule is not a bad thing. However, when it's used to kind of push off responsibility or to cut off flow of immigrants, that can be a bad thing. Let's talk about this language again and take a look a little more closely and see what the Trump administration is trying to do. Over the summer, the administration announced that they would impose some kind of tariffs or tax or basically weaken the relationship with Mexico if we couldn't get some kind of concessions from them for increased border enforcement on their part, that they should do more to help these Central American migrants. Now, I don't have any problem with that in principle. I think that Mexico should of course step up efforts to help Central American migrants. However, if these people still come to our borders, I don't think that that absolves us of our duty to help where we can help.
Jacob Tingen: So let's closely look at the language again. It says, "Exception to authority to apply for asylum. People can't apply for asylum if the Attorney General determines that the alien may be removed pursuant to a bilateral or multilateral agreement to a country in which the alien's life or freedom would not be threatened on account of a protected ground and where they'd have a full and fair procedure for determining a claim to asylum." So what's interesting here is that over the past couple of days, if you've been following along, you know that we've already talked about conditions in El Salvador, Honduras, Guatemala, and even a little bit about Mexico. We've talked about how dangerous it is for some of these migrants, immigrants.
Jacob Tingen: It's interesting to say, "Okay, well, Trump is now trying to form a Safe Third Country Agreement with these countries, and it seems a little disingenuous, right? How can we claim that Honduras is a safe third country when it has a murder rate that's multiple times the murder rate of the US and where, for example, when we publish our Department of State Travel Advisories we tell our citizens, "Don't go. It's so dangerous. There's literally no protection." So it seems disingenuous to say, "Oh no, those are perfectly safe for you, even when we tell our own citizens, they're not safe for us."
Jacob Tingen: So that is, in my head, just the general, first-level issue is that we acknowledge that these aren't safe countries and yet now we're going to sign agreements to call them safe countries just so that we can deport people under this authority. I mean, it's in the law and I get that. However, you can't just wave a magic wand and say, "It's safe now," especially again when you have this level of transparency that's kind of required. I mean, the US can't go around saying, "Oh, these countries are safe" in one document and say they're not safe and another.
Jacob Tingen: I mean, there's some self-interest involved here, again, because the Department of State issues these travel advisories to its own citizens. We don't want to tell our citizens, "Oh yeah, Honduras is completely safe. You're going to be fine," and then end up with a lot of US nationals who are struggling when they visit some of these countries. So there is some external pressure to kind of keep our country honest, and yet when it comes to these safe Third Country Agreements, all that I think the Trump administration is looking for is the ability to remove people more quickly and not have to deal with their asylum claim.
Jacob Tingen: So it seems that there's two prongs. Well, three prongs. Prong is a word that they use in law school. I don't know if I should disabuse myself of it. There are three factors that kind of have to be shown here. The first is there's a bilateral agreement or multilateral agreement. That's what Trump is trying to put in place. Now, the second factor is the country has to be a country where the alien's life or freedom would not be threatened on a protected ground. And then finally, the third factor would be where they'd have access to a full and fair asylum proceeding. Well, I think that that would be hard to argue that Central American countries can give that to these immigrants. I think it would also be hard to argue that Mexico can give that to these immigrants. So safety first of all, and then secondly, a full and fair proceeding in immigration court.
Jacob Tingen: I mean, as we'll be arguing in this podcast, it's tough enough for them to get a full and fair proceeding in our immigration courts, much less immigration courts in countries that are demonstrably dangerous and demonstrably lack the infrastructure to do some of these things. I mean, if we don't have capacity to process asylum, what's the likelihood that Guatemala and Honduras and Mexico and El Salvador do?
Jacob Tingen: All right, well, so let's jump into why these countries aren't necessarily safe, why they couldn't be considered safe third countries. Mexico, in particular, there was public outcry many years ago when mass graves of Central Americans were discovered in Mexico. So that's a basic concern. Prejudice and bias is something that should be discussed here. The United States of America has its own issues with, of course, prejudice and racism, but we're not the only society that struggles with issues like that. We see reports of a lot of just kind of racism and prejudice that people suffer as they travel north, especially those from Central America. They don't always receive great treatment from different people in Mexico as they travel North.
Jacob Tingen: That's not a condemnation of Mexico in general, just of human nature, unfortunately. People have biases and prejudices throughout the world. And then there's the issue with Guatemala. Of course I can see why, strategically, the Trump administration would like to get a Safe Third Country Agreement with Guatemala. If you're from Honduras or El Salvador, chances are you're going to pass through Guatemala on your way through to Mexico and up to the US. So the idea is if the Trump administration can say, "Well, you traveled through Guatemala," then they can return you there. So that makes it attractive to get an agreement as a safe third country.
Jacob Tingen: But again, would Guatemala qualify? We've talked about these gangs and how they control vast swaths of territory in Honduras and El Salvador and in Guatemala as well. Will people be safe from gangs in Guatemala? I don't think there's a clear answer for that. I don't think the answer is yes. When we talk about the government organizations in the Northern Triangle, I think it's important to acknowledge Guatemala, Honduras, and El Salvador. Those are nations. But as we talk about the level of organized crime, MS-13, these gangs have parlayed treaties out of the local governments. So to not acknowledge that they have a presence in Guatemala, is unfair.
Jacob Tingen: If somebody flees from Honduras to Guatemala and MS-13 is in both countries and country conditions show that the gangs, even across international borders, have a level of communication and territorial control that goes beyond national borders, how can anyone make the case that Guatemala is a safe third country for someone who's fled Honduras? How can anyone make the case that Guatemala is a safe third country for anyone who's fled El Salvador? I don't think it's fair to make that case.
Jacob Tingen: So that's the basic nitty-gritty on Safe Third Country Agreements, why the Trump administration is pushing for them. They want to use this rationale that like, "Well, it would be safe for them in Guatemala, so we don't have an obligation to go through an asylum proceeding with them here in the US. They should go through that asylum proceeding there." But yet when you take a closer look at the level of safety of these countries, it doesn't meet the standards of our laws here in the United States. Again, our laws are pretty straightforward. Pursuant to a Safe Third Country Agreement, a bilateral agreement, the Attorney General could remove an alien to a country in which the alien's life for freedom would not be threatened.
Jacob Tingen: You can't really say that about the countries that Trump is looking to make these agreements with, and where they'd have full and fair procedure for. We didn't really focus too much on whether or not they'd have a full and fair procedure, but it's safe to say that these countries perhaps don't have the infrastructure. If we're struggling with the infrastructure to do this, it's safe to say that they don't have the infrastructure to handle the volume of asylum claims that are coming through.
Jacob Tingen: And again, as a final note, I don't think that me saying that we can't make Safe Third Country Agreements, I don't think that absolves Central American countries or Mexico of their responsibility to help out in this humanitarian crisis. I think everybody should pitch in and help. But the whole purpose of this agreement is to wash our hands and say, "Not my job." That's not in accordance with our values or with international law.
Jacob Tingen: So that's it for Nation of Immigrants today. Again, we are on iTunes. You can subscribe to our YouTube channel, follow us on Facebook. And then if you visit my website at JacobTingen.com there is an opportunity to contribute, donate, support the podcast. Again, we're still setting up the 501(c)(3), but any funds that you donate, we're going to try to put towards immigrants' legal fees so we can help defray the cost of the things that they're going through. All right, thanks again for listening and thank you for following me here on Nation of Immigrants.
Announcer: Thank you for listening to Nation of Immigrants.
President Obama: America is a nation of immigrants.
Announcer: Subscribe to the podcast on iTunes, watch the live stream on YouTube and Facebook, or visit JacobTingen.com to learn more.
