Redefining the Safe Third Country Exception of the Immigration and Nationality Act in the Wake of Trump

The U.S. Immigration and Nationality Act lays out when an asylum seeker has the right to apply for asylum in the United States. This right is not available, however, when an asylum seeker passes through a designated Safe Third Country. A Safe Third Country is an internationally used concept that, pursuant to an international agreement, requires refugees to seek asylum in the first safe country that they step foot in. As the Safe Third Country exception on the Immigration and Nationality Act stands now, there are no guidelines on how to evaluate whether a country is in fact safe. This allows for any presidential administration to subvert our commonsense notion of what safe is in an effort to reduce asylum claims and appear strong on immigration. Most recently, the Trump administration distorted the Safe Third Country Exception to that end. Drawing on Hungarian Law, Canadian Law, and the United Nations High Commissioner for Refugees, this note proposes that clear guidelines must be woven into the Safe Third Country Exception, so that the United States Attorney General can better determine if a country is in fact safe for asylum seekers. This would better prevent a presidential administration from subverting the idea of what a safe country is, while still allowing Safe Third Country agreements to be humane, effective, and diplomatic tools to distribute asylum claims.