Following the United States’ reactivation and expansion of the Asylum Cooperative Agreement (ACA), more and more Chinese asylum seekers entering the U.S. through a third country are receiving motions filed by the Department of Homeland Security (DHS) to immigration courts. These motions argue against accepting their asylum, withholding of removal, and Convention Against Torture (CAT) applications in the U.S., requesting their transfer to a third country.
Upon the emergence of such cases, many applicants have expressed a high degree of uncertainty regarding their legal status, especially concerning whether the application of the ACA implies the absence of any legal space in the U.S., leading to serious misunderstandings. From the perspective of current legal systems and practical operations, such understanding is not entirely accurate.
The U.S. immigration legal system indeed includes statutory and regulatory exceptions for the ACA. However, these exceptions are not conceptual or humanitarian protections but highly institutionalized, evidence-based, and narrowly applicable legal arrangements. Misinterpretation of the exceptional conditions by applicants may lead to missed opportunities for crucial defenses in the process.
Based on existing immigration laws and federal regulations, this article systematically explains the legal basis of the ACA system, the main types of statutory exceptions that can be claimed, and situations commonly mistaken as exceptions in practice but do not actually block legal proceedings.
The foundation of the ACA lies mainly in two legal levels. One is Section 208(a)(2)(A) of the Immigration and Nationality Act (INA), which specifically authorizes the U.S. government to transfer asylum seekers to a designated “safe third country” for protection under certain conditions rather than adjudicating their asylum claims on U.S. soil.
The second level is the federal regulations that implement the ACA, particularly 8 C.F.R. § 1240.11(h). This section not only grants DHS the authority to invoke the ACA in immigration court proceedings but also regulates its application conditions, procedural arrangements, and exceptional circumstances. Section (h)(3) specifies the core provision governing statutory exceptions for the ACA.
According to current regulations and Federal Register explanations, the statutory exceptions for the ACA mainly focus on several directions. If an applicant meets the legal definition of an unaccompanied minor when being controlled, detained, or entering immigration procedures by the DHS, the ACA is generally not applicable.
The key to this exception lies not only in age but in whether the complete legal requirements are met, including being under 18 years old upon entry or detention, lacking parents or legal guardians with lawful status in the U.S., and having undergone an official UAC status determination by the DHS.
A common misunderstanding in practice is that even if an applicant was under 18 at the time of entry but was not officially recognized as a UAC or has since transitioned into regular adult immigration proceedings, this exception does not automatically apply.
The ACA system also includes limited family reunification exceptions. If an applicant in the U.S. has established verifiable family relationships with a legally present spouse, parent, or minor child, and this relationship existed prior to the ACA’s application, under specific conditions, the ACA’s application may be excluded.
However, the threshold for the application of such exceptions is extremely high. Blood or marital relationships alone are not sufficient; it must be proven that family members physically reside in the U.S., the relationship has legal effect, and official documents can be provided for verification by the DHS and immigration court.
Cousins, friends, compatriots, unregistered partners, or family connections asserted solely orally do not constitute statutory exceptions.
Regulations also recognize that in specific circumstances, even with the existence of the ACA, an applicant may still be practically unable to be sent to the designated third country.
Such situations include but are not limited to: the third country refusing to accept the applicant, its laws or administrative practices not allowing entry, or the applicant objectively lacking any viable means of reaching that country.
It is worth noting that such exceptions must be based on concrete, provable facts rather than speculation, anxiety, or subjective fears.
These exceptions carry substantial legal significance under the ACA framework and represent the most challenging category with the highest evidentiary standard. Applicants may argue that they face a high risk of meeting the legal standards for “persecution” or “torture” in the designated third country due to specific identities, backgrounds, or reasons.
The key to this claim does not lie in the overall security, economic, or human rights conditions of the third country but rather in the applicant’s ability to prove that they face a high likelihood of persecution or torture in that country meeting the “preponderance of the evidence standard” and complying with relevant international and U.S. legal definitions of persecution and torture.
Such defenses typically require a combination of country-specific human rights reports, individual background analysis, expert opinions, and documentary evidence, falling within the realm of highly specialized legal arguments.
In practical adjudication, the following reasons are unlikely to be recognized by immigration judges as statutory exceptions under the ACA: economic hardship in the third country, linguistic barriers, lack of family or friends, inadequate medical conditions, general public safety issues, or simply stating a reluctance to go to that country.
These circumstances involve humanitarian considerations but do not constitute legal exceptions.
In ACA cases, the law clearly places the burden of proof on the applicant’s side. DHS is not required to prove the third country’s absolute safety, and immigration judges are not obligated to actively search for exceptions for the applicant.
If an applicant argues for a statutory exception, they must present specific evidence and meet the “preponderance of the evidence standard,” meaning their claim is more likely to be established based on the overall evidence assessment.
While statutory exceptions under the ACA indeed exist, their design inherently represents exceptions within exceptions. Their applicability does not depend on subjective feelings or sympathy but on precise interpretation of the laws and whether the evidence is sufficient to support the claim.
For applicants who have received DHS motions and are facing ACA proceedings, clarifying early on whether they truly fall within the statutory exception scope is crucial in avoiding wasting time in the wrong direction and seizing the limited procedural space available.
(This article provides general legal information and does not constitute specific legal advice for any case; the application of ACA exceptions involves highly factual and legal judgments, and practical outcomes may differ due to case variances.)