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In 2019, the Trump Administration signed asylum cooperative agreements, commonly known as “Safe Third Country” agreements, with Guatemala, Honduras, and El Salvador. Under these agreements, those seeking asylum in the United States can be denied if they passed through those one of those three countries without seeking asylum there.

On February 2, 2021, the Biden Administration announced that it was suspending these agreements, and had initiated the process to terminate them. My question is, did the Biden administration successfully terminate these agreements, or are they still there?

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You can read the text of the Biden Administration's Executive Order announcing the change in policy here.

Human Rights First is a non-profit organization that published a checklist (PDF) in September 2022 attempting to answer this question. They are ostensibly non-partisan and due to the nature of their work are formally for humane and dignified treatment of migrants. They compiled a list of 11 commitments made from the February 2021 Executive Order and offered a critical update on the progress of each commitment.

Commitment:

Asylum Cooperative Agreements (ACAs) to send asylum seekers to unsafe countries: "Promptly review and determine whether to rescind the interim final rule titled "Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” 84 Fed. Reg. 63,994 (November 19, 2019), as well as any agency memoranda or guidance issued in reliance on that rule."

Criticism:

Important initial progress, but lack of prompt and critical follow up to firmly end unsafe schemes: In February 2021, the Secretary of State terminated the Asylum Cooperative Agreements with Guatemala, El Salvador and Honduras, which the Trump administration used to summarily send nearly one thousand people to Guatemala without potential access to U.S. asylum assessments, even if they feared return to persecution in their home countries. However, further steps are needed by DHS and DOJ to rescind the regulation authorizing these agreements and to bring to safety asylum seekers sent to danger under this policy.

As far as I can tell the criticism offered is correct; the regulation adopted to implement the Trump-era ACAs is still in effect (84 FR 63994). You can search for yourself the Monthly LSAs ("List of CFR Sections Affected") here.

The Biden Administration has rescinded a Trump-era rule on "expedited removal" on specific classes of immigrants, you can see the original rule in the Federal Register (84 FR 35409) as well as the rule that rescinded it (87 FR 16022). The updated policy became effective March 21st, 2022. Those classes of immigrants were generally determined by how the immigrant arrived (e.g. by sea vs. by land), and not related directly to the ACAs initiated by the Trump administration.

So, all in all, I would say the answer is no, Biden has not terminated this policy completely. I think you can argue that with the single action taken by Secretary of State Blinken in informing those governments that the U.S. would "suspend" the agreements that they are no longer "agreements," but the underlying U.S. policy remains unchanged. The Biden administration has been attempting to end Title 42 which allows officials to quickly expel asylum seekers even if they would nominally qualify, but was blocked earlier this week by the Supreme Court while legal challenges continue to play out. Arizona, et al. v. Alejandro Mayorkas, Secretary of Homeland Security. While not strictly related to the ACAs, the policy of sending asylum seekers to those countries is sometimes how the expulsions under Title 42 are carried out. Whether or not the receiving countries are continuing to adjudicate the immigrant's claim of asylum under their immigration system as the ACA requires is unclear, and is outside the realm of U.S. Government authority.

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  • But whether the actual regulation was rescinded or not, is there evidence that the agreements were actually terminated, after the suspension and announcement of beginning the process to terminate them in February 2021? Dec 29, 2022 at 23:05
  • @KeshavSrinivasan The State Dept. notifying those governments would be all that would be needed to terminate those agreements, as I allude to in the final paragraph. There was no formal treaty, in regards to foreign policy simply telling them "we're no longer interested in pursuing this" would be all they would need to do. What those 3 countries do in response is likely 3 different things altogether, perhaps not, but their response would certainly not be up to Biden or anyone in the US administration.
    – user5155
    Dec 29, 2022 at 23:12
  • My point is that the only other thing Biden can do to more formally rescind the agreement is to get rid of the federal regulation implementing it.
    – user5155
    Dec 29, 2022 at 23:15
  • "They are ostensibly non-partisan". Quite. Such groups when making their arguments so often use the terms "inhumane", "dignity", and even "asylum" so loosely as to provide no point at all. The de facto definitions they use are apparently "whatever we disagree with". BUT, this is actually a great answer; answers everything asked and then some.
    – user2578
    Dec 31, 2022 at 18:10
  • See their official response to the SCOTUS Title 42 ruling. It reads very much as a partisan complaint.
    – user2578
    Dec 31, 2022 at 18:14

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