Inside the So-Called “Safe Third”—and Trump’s Latest Attack on Asylum-Seekers

The Trump administration has been engaged in an all-out assault on the right of asylum-seekers. 

Instead of protecting those fleeing danger, this administration has put them in harm’s way with policies such as “Remain in Mexico,” which has forced them to wait in some of the most dangerous border cities in Mexico, and has subjected them to unspeakable cruelty and trauma through policies such as family separation at the border.

“Orwellian” is the only word to describe one of the administration’s latest assaults on asylum, which would deem the northern triangle countries of El Salvador, Guatemala and Honduras—which all experience crisis levels of violence—to be “safe third countries” to which the U.S. could “outsource” its obligations to refugees. 

(Molly Adams)

Under this policy, the U.S. could refuse to consider the claims of asylum seekers fleeing any country in the world, and could instead send them to these three countries for their claims to be considered there.  El Salvador, Guatemala and Honduras have signed “cooperative agreements” with the United States agreeing to undertake this responsibility. 

Under U.S. law, safe third country agreements can be entered into if two conditions are met: the country has to be safe, such that asylum seekers would not be at risk there; and the country must have a “full and fair procedure” for deciding asylum claims. Up until the Trump administration, these requirements were taken seriously, and the only country with which the U.S. had such an agreement was Canada—which truly is safe, and has a robust asylum system.     

The same is not true for the northern triangle countries, which cannot seriously be considered to be safe. Widespread violence and instability have caused their own inhabitants to flee in large numbers, seeking protection outside their borders, and none of these countries have asylum systems capable of processing the claims of the hundreds or thousands of asylum seekers the U.S. could send their way.  Yet El Salvador, Guatemala and Honduras are now to serve as safe havens for those who flee persecution, giving the U.S. yet another way to flout its legal and moral obligations. 

I recently returned from a human rights fact-finding trip with colleagues to El Salvador, and our findings illustrate the absurdity of a U.S. / El Salvador safe third country agreement. (Others have written similar country-specific critiques of the agreements with Guatemala and Honduras.)

El Salvador has long experienced some of the highest homicide and femicide levels in the world. Although the underlying causes are multiple and complex, and are often linked to the proliferation of violent gangs and organized crime, the U.S. bears more than a small amount of responsibility.  The U.S. government supported a brutal military during El Salvador’s 12-year civil war—which resulted in 75,000 deaths, 7,000 disappearances, and the displacement of 500,000. After the war, the U.S. government then deported youth who had become gang members back to El Salvador at a time when the country lacked sufficient infrastructure to rehabilitate and reintegrate them into society.  

Although El Salvador’s murder rate has declined over the past three years, at 50 killings per 100,000 inhabitants, the country continues to have the highest murder rate in Latin America—one that is five times the rate which the United Nations considers to be epidemic. The new Salvadoran government, led by President Nayib Bukele, is also now going out of its way to hide data that would reveal the true murder rate. Without justification, the government has decided that suspected gang members killed in clashes with security forces will no longer be counted. It has also removed from the homicide count bodies found in clandestine graves. Given the broad consensus that the bodies found in these graves are murder victims, there is no logic to exclude them—other than to mask the actual levels of violence.  

Our fact-finding trip had a specific focus on gender-based violence, and there too, touted improvements are highly questionable. The sleight-of-hand reclassification of deaths noted above has allowed El Salvador to report a small decrease in its femicide rate, but any improvement is belied by the fact that sexual violence has increased by almost a third (31 percent) in the last two years, with a girl or woman being raped every four to five hours. Salvadoran experts informed us that such statistics represent just the tip of the iceberg, because more than 80 percent of crimes against women are not reported.

Violence against women remains prevalent in El Salvador because it is not taken seriously by government authorities, and impunity therefore prevails. Gender bias infects the process—beginning with the police, to the prosecutors, to the judges themselves, who all too often see gender violence as normal, and blame the woman for bringing it upon herself. 

Because “regular courts” have failed to take gender violence seriously, El Salvador has been forced to create specialized courts to prosecute violent crimes against women, but the specialized courts do not have jurisdiction over the two most common acts of violence against women—rape and domestic violence, where prosecutions remain in the regular courts. The reason repeatedly given by our sources: the prevalence of these crimes would lead to a “collapse” of the specialized courts if they had to deal with them.

Even in the areas of their jurisdiction, the specialized courts have been a failure by most measures. Impunity remains unacceptably high; more than 95 percent of the crimes go unpunished.  

El Salvador is unsafe for its own citizens, and it does not have the resources or capacity to host asylum seekers and decide their claims. There are currently almost 275,000 internally displaced Salvadorans, with more than 90 percent of them having abandoned their homes because of violence. A July 2018 decision by El Salvador’s Supreme Court ordered the government to address the needs of this population. The experts we met with in El Salvador—governmental, non-governmental and UN-related—lamented that their government had signed a cooperative agreement with the U.S., obligating the country to host an untold number of asylum seekers, while it clearly was incapable of even taking care of those displaced within its borders.  El Salvador’s asylum system is also not equipped to deal with large numbers of asylum applications: the office charged with deciding cases, Comision para la Determinacion de la Condicion de Personas Refugiadas (CODER) has a single staff person for the entire country.    

As has been the case with so many of the Trump administration’s attempts to gut the asylum system, this one is certain to face legal challenge.  If the U.S. courts apply the law on safe third countries to the reality on the ground in El Salvador, it is hard to imagine that this latest assault on asylum will pass muster.   


Karen Musalo is a law professor and director of the Center for Gender & Refugee Studies at the University of California Hastings College of the Law. She has litigated major landmark cases on behalf of women asylum seekers fleeing gender-based violence and published extensively on refugee issues and conditions in Central America which force women to flee and seek protection.