US–Guatemala Asylum Cooperative Agreement: Asylum Seekers Transferred to Guatemala Without a Hearing (2019–2020)

What happened

On 26 July 2019 the United States and Guatemala signed an Asylum Cooperative Agreement (ACA). Under INA § 208(a)(2)(A), such an agreement lets the US refuse an asylum application and send the applicant to a third country instead. The statute requires that the third country offer "access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection."

DOJ and DHS put the agreement into operation with an interim final rule that took effect on 19 November 2019 (Federal Register). Under the rule, an asylum officer first decides whether the person is covered by an ACA. If so, the person cannot apply for asylum in the US unless they show it is "more likely than not" that they would be persecuted or tortured in the third country itself. The rule itself notes that applying the ACA bar does not involve asking whether the person has shown even "a significant possibility" of qualifying for asylum. The rule does not ask whether the person faces danger in the country they fled.

The transfers

According to Human Rights Watch and Refugees International (HRW/RI), the US transferred 939 Honduran and Salvadoran asylum seekers to Guatemala between 21 November 2019 and 16 March 2020, when Covid-19 halted transfers. Of these, 345 were women, 357 children and 237 men. Transferees were flown to Guatemala City, often on the same planes as deported Guatemalans, and given 72 hours to apply for asylum or temporary residence in Guatemala, return home, or leave. Refugees International observed an orientation session in which, for most transferees, "this was the first time they learned they were not going to be allowed to lodge asylum claims in the United States."

Only 20 of the 939 filed official asylum applications in Guatemala. UNHCR's local partners had found that about two-thirds of the transferees they interviewed had international protection concerns. HRW/RI report that people stayed away from Guatemala's system because they could not support themselves, distrusted the authorities, and feared that the gangs they fled operate across the border.

Guatemala's capacity was minimal. A June 2019 US embassy cable cited in the report put the asylum office at three caseworkers, three investigators and one supervisor, able to process 100 to 150 claims a year. The backlog had reached 713 cases by the end of March 2020, and the National Migration Authority, which decides asylum claims, had not met from mid-March, when Covid-19 restrictions began, to late April 2020.

The 30 transferees HRW/RI interviewed said CBP held them for 7 to 20 days before transfer, longer than DHS's own 72-hour standard, with frozen food, constant lighting, no showers for days, and denial of medical care. One former Honduran police officer said border officials "threw away" documents showing he was a witness against gang members.

The ACLU, the National Immigrant Justice Center, the Center for Gender & Refugee Studies and Human Rights First challenged the policy in U.T. v. Barr, arguing that Guatemala and the other ACA countries cannot meet the "full and fair procedure" requirement (ACLU). The case was filed on 15 January 2020 and has produced no merits ruling; on 21 September 2026 Judge Emmet Sullivan certified a class and granted leave to file a second amended complaint (CourtListener docket).

Legal analysis

Upgrade check (international crimes). Article 7(1)(d) of the Rome Statute covers deportation "without grounds permitted under international law" as part of a widespread or systematic attack on a civilian population. Transfers under a bilateral agreement with a statutory basis, during a four-month programme, are not shown to be part of an "attack directed against a civilian population." No Rome Statute crime is in play, and no warCrimeClassification is given.

Human-rights elements.

1. Removal to a third state. Confirmed by the rule and the agreement.
2. Absence of effective protection there. Strongly supported. HRW/RI document a system with seven staff, a growing backlog and a decision body that had stopped meeting, and conclude that Guatemala does not meet the US statutory standard. This is one field investigation, not a court finding.
3. Onward return to persecution (indirect refoulement). Supported but not quantified. Only 2% applied in Guatemala, and HRW/RI report that some transferees with well-founded fears went home. No systematic monitoring of returnees exists, so the number harmed is unknown.
4. Procedural fairness. The rule asked only about danger in Guatemala, and transferees report not being told they would be barred from US asylum.

Strongest defence argument. Congress expressly authorised safe-third-country agreements, and the rule did screen for danger in the receiving country. Guatemala had a functioning, if small, asylum office and transferees could apply there; their choice not to do so was their own. The answer is that the statute's own condition, a "full and fair procedure," appears not to have been met in practice, and a 72-hour window in a country without shelter or work authorisation is not a free choice. That answer rests on the HRW/RI evidence, which has not been tested in court.

Why this grade

Severe. The policy took actions against asylum seekers that a credible investigation found to be in tension with the non-refoulement obligation in the Refugee Protocol, with concrete harm to an identifiable group of 939 people, most of them women and children. It is not critical, because the programme was limited in time and size and no court found it unlawful. The core figures come from a single investigation, and the entry says so.