Douglas Todd: ‘Religious persecution’ claimed by more asylum seekers in Canada

Of interest, including the sensible perspective of Richard Kurland “Canadians don’t have to light their hair on fire.”:

A rising number of “irregular migrants” are arriving in Canada and saying they are victims of religious persecution.

Many of the roughly 60,000 of these migrants who found a way into Canada last year are claiming either political or, increasingly, religious persecution, according to an internal report by the Canadian Border Services Agency.

The report reveals that more than four out of five claimants who arrived from India, Iran and China had found an unauthorized way to get onto Canadian soil before they made their “inland” application for refugee status. A smaller number asked to be viewed as asylum seekers when they arrived at either a land border crossing or a Canadian airport. The report doesn’t clarify which proportion claim religious persecution.

A Vancouver immigration specialist, Richard Kurland, obtained the CBSA document through an access to information request. Normally, Kurland said, about four out of 10 irregular migrants are eventually granted refugee status in Canada, regardless of whether they maintain they have been victims of political or religious persecution.

The uptick in the number of applicants in Canada making claims of religious persecution appears to be a sign of the times.

The Pew Research Center has found that, since 2007, governments around the world have generally imposed greater restrictions on religious freedom.China and Iran, major source countries of migrants to Canada, are among the worst for imposing limits on the way citizens’ practice their faith.

Although China, an officially atheist state, says it permits religious freedom, it only allows five major religious groups to operate and they’re subject to control by the United Front and the Communist Party. House churches, underground Catholics, Falun Gung members and Uighur Muslims face harassment, imprisonment and even torture.

Iran, an Islamic republic in which 98 per cent of the population is Muslim (mostly Shia), formally recognizes Jews, Christians and Zoroastrians, but not Baha’is, who are frequently imprisoned and persecuted as “misguided” Muslims. Religious minorities in Iran often report feeling threatened — and apostasy, specifically conversion from Islam, can be punishable by death.

In addition, Pew gives some its worst marks for “high levels of inter-religious tension” and “violence by organized groups” to the large migrant-source countries of India and Nigeria. It also lists Egypt and Pakistan, both Muslim-majority states.

While India is a secular state with a reputation for religious tolerance, since it is the birthplace of Jainism, Hinduism, Buddhism and Sikhism, in recent decades there have been anti-Sikh, anti-Hindu, anti-Muslim and anti-Christian riots. There are also reports of vigilantism in regions run by the Hindu nationalist BJP Party.

Nigeria’s population of 200 million is roughly divided between Muslims and Christians. In recent years gun battles have burst our between young, often-educated members of rival Christian and Muslim sects, leading to dozens of deaths and the burning of mosques and churches.

No doubt there is severe religious persecution occurring in many places. But not all maltreatment narratives are believed by Canada’s border officials, who reject the majority of irregular applicants.

Regardless of the reasons irregular migrants have for claiming refugee status, Kurland emphasizes, “The big question is: ‘How many of the failed applicants are actually removed from Canada?”

Canadian officials, like those in other immigrant-receiving nations, typically only get around to forcibly removing about 15 per cent of failed claimants, he said. The rest find ways to work with immigration officials to stretch out their stays in Canada for years.

“It’s not Amazon.com. You can’t just pack them up and return them,” Kurland said.

What is the common pattern for recent irregular migrants? The reality is that most who end up in Canada first go to the U.S., Kurland said, before they illicitly cross the land border into Quebec or Ontario.

Most don’t apply for refugee status as they cross a land border or touch down at a Canadian airport, he said, because they justifiably fear being immediately deported.

(Government-assisted refugees are in a different category, since they come to Canada recommended and approved by the United Nations.)

There are weaknesses in arguing you were persecuted for religious beliefs, Kurland said.

The main drawback is border and immigration officials will likely ask why you didn’t escape persecution by moving to another region of your own country. So-called “internal flight” is a common way to avoid harassment, especially in India, Pakistan and Nigeria.

Despite the many inconsistencies involved in the way Canada and other immigrant-receiving countries deal with irregular migrants, Kurland believes we don’t have a terrible system. “Canadians don’t have to light their hair on fire.”

Since the worst applicants are returned to their country of origin, the many others who find ways to drag out their stays often end up contributing. Many marry, find sponsors and hold down jobs, eventually obtaining permanent resident status.

“They’re the ones who’ve beaten the Darwinian system.”

Source: Douglas Todd: ‘Religious persecution’ claimed by more asylum seekers in Canada

How the U.S. asylum system’s biases affect migrants’ chances

Good data-based analysis, showing how outcomes depend upon nationality, where seekers wait (what part of the country, whether in detention or not), and the judge assigned. Sean Rehaag continues his annual analysis with respect to outcome differences, showing wide variations between IRB Members, some explicable, some not:

For the world’s most vulnerable, protection in the United States has all but disappeared.

Wait times for asylum seekers at the U.S.-Mexico border that already seemed indefinite now seem impossible. Families struggle to find food and shelter to outlast a pandemic order with no end date.

Those who cross north are sent back to Mexico in a matter of hours — or even put onto planes back to the countries from which they fled — without any opportunity to explain why they came.

In its response to COVID-19, the Trump administration achieved what it long sought, a shutdown of the U.S. asylum system. And with new regulations introduced this summer, the administration has moved to squeeze out any real chance at refuge in case the pandemic order is lifted.

But even before the current president began his campaign against asylum in the United States, people often struggled to win protection — no matter how strong their cases appeared to be.

In its 40-year history, the system has chronically fallen short of its promise of safety.

The Trump administration has used statistics about grant rates to justify closing off access to asylum, saying that those who lose their cases are illegitimate asylum seekers.

The facts show a different story: Thousands of people turned away based not on the merits of their cases, but on the capriciousness of a system so riven with inequity that many outcomes seem little more than arbitrary.

A San Diego Union-Tribune analysis of 10 years of court outcomes uncovered many symptoms of the system’s biases — shortcomings that date to the system’s creation.

Numerous factors can sway a case’s result, calling into question the administration’s assertion that a denial means an asylum seeker was lying.

Where asylum seekers wait for their day in court can mean the difference between protection and deportation.

That “where” depends on two decisions mostly out of asylum seekers’ control — whether they are held in detention and in which part of the country their hearings are scheduled.

It can ultimately influence several other important factors: their chances of finding legal representation, the judge assigned and what legal precedents the judge must follow.

Outcomes also vary by nationality, discrepancies that cannot be fully explained by the human rights violations that vary from country to country.

Mixed into all of this are the tendencies of each judge. Even among judges at the same court, grant and deportation rates vary widely.

Stories of different outcomes for similar cases, even for family members fleeing the same danger, are common.

Not a simple yes or no

When people ask for protection at the border, they enter a maze of bureaucracy that is the U.S. asylum system.

Herding them along are thousands of federal employees and contractors — asylum officers, detention center guards, deportation officers, immigration judges, court interpreters and government attorneys.

The process is an adversarial one, with a goal of determining whether the person is deportable from the United States, not whether that person merits protection.

U.S. asylum law, based on international agreements, protects people who flee persecution based on race, nationality, religion, political opinion or membership in a social group such as the LGBTQ community. Persecution must come directly from the government or from someone whom the government cannot or will not control.

In the decade of cases analyzed by the Union-Tribune, immigration judges granted asylum about 19% of the time.

These findings are based on roughly 146,300 immigration court cases with asylum applications filed that reached initial decisions from fiscal 2009 through 2018, excluding some asylum requests that didn’t originate at the border.

But asylum is not always a simple yes or no.

About a quarter of cases were closed without judges making decisions on the merits of the asylum applications. These closures generally meant that asylum seekers were allowed to stay, at least temporarily, in the United States.

Judges ordered deportations in nearly half of the total cases.

The Executive Office for Immigration Review, the agency within the Department of Justice responsible for immigration courts, did not respond to a request for comment about the various findings of the Union-Tribune’s investigation.

Where they wait

Asylum seekers often have little control over where their cases end up — and it’s not necessarily tied to where they arrived at the border.

Though the Trump administration drastically changed where asylum seekers wait beginning in 2019, during the decade analyzed by the Union-Tribune the federal government had two main options.

If immigration officials decided to keep asylum seekers in custody, they were sent to detention centers around the country depending on bed space.

If released, they went wherever someone was willing to help them — a cousin in New York, a friend in Colorado, or an unknown sponsor linked to an advocacy group.

Where this fateful combination of circumstances takes an asylum seeker can make a big difference.

Based on the 10 years of case data analyzed by the Union-Tribune, a detained asylum seeker in Texas was 9.3 times more likely to be ordered deported than a non-detained asylum seeker in New York.

Nationwide, asylum seekers who remained in custody were ordered deported at a higher rate — in 74% of cases — compared with 44% for those who were never detained. Those who were initially detained and then released were ordered deported in 37% of cases.

Being detained doesn’t necessarily reflect anything about the legitimacy of an asylum seeker’s case or hint at a criminal past. Rather, Immigration and Customs Enforcement, the agency responsible for immigration detention, has longstanding policies to keep many asylum seekers in custody regardless of their circumstances.

In or out of custody, the region where an asylum seeker ends up dictates what legal precedents will be used to decide their cases.

The example most widely cited by attorneys is the debate over the definition of what constitutes a “social group” for asylum purposes. The 5th U.S. Circuit Court of Appeals, which governs Texas, along with Louisiana and Mississippi, has long used a narrow interpretation.

How courts define which categories count as social groups makes a difference for people whose persecution claims are based on their membership in a family, or as part of a broader group such as women fleeing domestic violence in countries that don’t protect them or as young men targeted for gang recruitment, among others.

Records show judges under the 5th Circuit ordered 3 in 4 asylum seekers deported from fiscal 2009 through 2018 — more than any other circuit in the country.

At the other end of the spectrum, judges in the 2nd Circuit, which guides case law in New York, Connecticut and Vermont, ordered fewer than 1 in 3 deported.

Judges in the 9th Circuit, which includes California, ordered just over 2 in 5 asylum seekers deported.

Location also dictates how many immigration attorneys, particularly those willing to work pro bono, are available. It is notoriously difficult for asylum seekers held in rural detention centers to find attorneys.

Asylum seekers who did not have representation were ordered deported in 60% of cases in the Union-Tribune analysis, compared with 42% for those with legal help.

Unlike cases in criminal courts, attorneys are not provided to those who cannot afford them — not even when the asylum seeker is a child.

Where they’re from

Geography plays a role in another way — the Union-Tribune’s analysis revealed disparities in outcomes based on nationality.

Part of that has to do with conditions in the country and whether they create reasons to flee that are clearly defined under asylum law.

But another part may have to do with biases and preconceptions in U.S. culture about that country.

This may help explain why asylum seekers from China are much more successful than those from Somalia.

Out of the 10 nationalities with the most asylum applications filed, those two countries of origin, both with long histories of human rights violations, are near the top of the list for grant rates. China ranks second, and Somalia ranks third.

And yet, the odds of asylum seekers from China being granted asylum were 2.2 times higher than those from Somalia, according to the Union-Tribune analysis.

This disparity might be explained by the outsized focus on China in U.S. media coverage and in federal government. China’s notorious treatment of Uighurs — an ethnic minority — and the country’s violent repression of pro-democracy protests in Hong Kong are just the latest examples of human rights violations in the public eye.

In contrast, the decades-long rampant human rights abuses in Somalia that have created hundreds of thousands of refugees do not often make front-page headlines.

Add in racism and xenophobia toward people from certain regions of the world, as well as potential anti-Muslim bias, said Karen Musalo, director of the Center for Gender & Refugee Studies at UC Hastings College of the Law, and the potential for discrepancy grows.

“The relationship between the United States and the country you’re from is a big factor,” said Jeremy Slack, a University of Texas at El Paso professor and author of the book “Deported to Death.” “Chinese people get asylum right now much, much easier than most other countries because we like to poke China as a human rights abuser.”

China’s affiliation with communism is another likely influencer, especially after Congress, in 1996, made it easier for people fleeing the country because of its one-child policy to claim asylum.

These kinds of systemic biases regarding nationality have been in place since the asylum system was created.

In the early days, immigration officials who processed asylum requests relied on U.S. State Department recommendations for each individual case, guidance that was heavily influenced by U.S. foreign policy — in particular, the country’s war on communism.

Under the Reagan administration, Central Americans fleeing powerful communist leaders were granted asylum far more often than those fleeing right-leaning strongman governments because of the United States’ involvement in proxy wars in their countries.

“There was a refusal to recognize that the governments we were supporting were engaging in human rights violations,” said Lucas Guttentag, who teaches immigration law at Stanford University and Yale University.

This meant that Nicaraguan migrants, who were fleeing the left-wing Sandinistas, were granted asylum at a rate of 26%, according to a report published in the book “Threatened Peoples, Threatened Borders: World Migration Policy” in 1995, compared with Salvadorans at 2.6% and Guatemalans at 1.8%, who were fleeing right-wing regimes.

Guttentag was one of the lead attorneys in a lawsuit calling for an end to systemic discrimination based on U.S. foreign policy.

A 1990 settlement in the case allowed Salvadorans and Guatemalans to have their claims reassessed, and Congress made other changes to try to account for the system’s shortcomings.

But as the Union-Tribune’s data analysis suggests, systemic bias based on country of origin has not disappeared.

“It’s cynical to say this, but it needs to be said, which is even though the refugee definition is supposed to be applied in a neutral way, the same way to all nationalities, that has never been the case in the U.S.,” Musalo said.

The difference a judge makes

Even for nationalities with higher grant rates, family members fleeing the same persecution can be split apart by different results.

There are glaring examples among many Chinese families that sought asylum based on the country’s former one-child policy. On multiple occasions, immigration judges granted asylum to the father who was seeking refuge from forced abortions, but not the mother.

“It is difficult to imagine how a rational system of law could tolerate such inconsistent results,” appellate judges in the 2nd Circuit wrote in changing the outcome for a mother in one such case.

The difference for many of these families came down to which judges decided the cases.

The Union-Tribune found large differences in decisions among judges at the same immigration court, even when taking into account that asylum seekers held in detention facilities tend to be ordered deported at higher rates.

Take, for instance, the three judges in San Diego who heard mostly detained cases over the course of the decade analyzed by the Union-Tribune.

Judge Robert McSeveny had the highest deportation rate and ordered about 81% of asylum seekers before him deported. He also had the lowest grant rate at 13%.

Judge Carmene “Zsa Zsa” DePaolo ranked somewhere in the middle, ordering 41% deported. She granted asylum in about 55% of cases.

Judge Anthony Atenaide ordered about 20% deported and granted about 76% asylum.

These gaps between judges — some well over 60 percentage points — exist in courts across the United States.

“There shouldn’t be that much difference,” said Paul Schmidt, a former immigration judge. “It’s hard to make sense out of the system because there are so many variables superimposed on each other.”

Ashley Tabaddor, president of the National Assn. of Immigration Judges, said that different rates among judges should be expected.

There might be details in cases of two people fleeing the same harm in the same country that lead to different outcomes depending on how good their attorneys are — if they have them — as well as how much the government attorneys push back and what the judges’ own previous courtroom experiences are, she said.

Even in cases where details are exactly the same, Tabaddor said, judges can have different opinions.

“It’s not unusual for people looking at the same set of facts and same set of rules to have differing opinions about how much weight to give evidence and what the conclusion should be. That’s in every court,” Tabaddor said, pointing to differences among U.S. Supreme Court justices.

Judges’ grant rates are also influenced by their work history, according to a study from 2007 titled “Refugee Roulette” by researchers from Temple University and Georgetown University Law Center.

The Union-Tribune analysis corroborated this finding. Judges who previously worked as ICE attorneys — generally arguing in immigration court against asylum seekers and other immigrants requesting to stay in the U.S. — were about 1.4 times more likely to order asylum seekers deported during the decade analyzed.

A little more than half of immigration judges who heard cases analyzed by the Union-Tribune previously worked for ICE.

When they make the career switch, they go from one federal agency to another.

That’s because, like ICE employees, immigration judges work for the executive branch rather than the judicial branch.

The judges’ boss is the attorney general, the nation’s highest-ranking prosecutor in the Department of Justice.

Tabaddor and other leaders of the judges’ union have long argued that immigration courts should be part of the judicial branch instead — a solution that could help reduce the mistrust that many critics have toward the system.

“Why don’t you trust the judge?” Tabaddor said, addressing those critics. “It’s because you know the court is run by a law enforcement agency. You feel like the court is stacked. You feel like there’s something inherently wrong. And on those grounds I say, ‘You’re absolutely right.’”

A family separated

For one asylum seeker from Central Asia, this fateful lottery of circumstances could mean that he is deported while his family stays in the United States.

The Russian-speaking man, Mr. U, declined to fully identify himself, as well as the country that he fled, to protect family members he left behind. But he allowed the Union-Tribune to review his case files.

His experience navigating the system presents a striking example of how an asylum seeker’s physical location can impact other factors in a case — and ultimately the outcome.

Mr. U first entered the asylum system in San Diego.

He was separated from his 13-year-old son, as well as his adult stepson and his stepson’s wife, shortly after the family arrived at the San Ysidro Port of Entry in 2017.

The physical separation meant their immigration court cases were split, as well.

Though their asylum claims were all tied to the stepson’s political activities, their separation would ultimately result in dramatically different asylum outcomes.

Mr. U would spend the remainder of his case locked up at Otay Mesa Detention Center while his son was taken to a facility for unaccompanied migrant children in Chicago.

His adult stepson and the stepson’s wife ended up at a detention facility in Adelanto, a few hours north. Mr. U did not know where they were.

The day before his trial, Mr. U got some of the best news he’d received since his arrival. He finally found a pro bono lawyer willing to take his case.

“I was very happy,” Mr. U told the Union-Tribune through a translator. “I had a new hope to see my son sooner.”

On the day of his trial, he handed the judge a written statement explaining that the attorney, who then worked at Catholic Charities, was unable to be in court that day because another client had a hearing.

The statement added that Mr. U’s adult stepson was also in immigration custody and that their cases were related. Mr. U hoped that his stepson could be a witness in his case.

Mr. U asked to postpone his trial for about a month and a half.

“I do not wish to prolong my case any longer than necessary,” Mr. U said in his statement. “My young child has been taken from me and is in the custody of the government far away. He is alone and without me, and I need to get back to him.”

Immigration Judge Scott Simpson insisted that Mr. U proceed with his trial that day without the attorney and without his stepson as a witness.

“You’ve been detained for over eight months,” Simpson told Mr. U, according to court records. “That’s ample time to find an attorney. So, there’s no good cause to continue any longer.”

On his own, Mr. U, who has a high school education, struggled to explain his story clearly to the judge.

The Russian interpreter also struggled to understand him, frequently interrupting the dialogue between Mr. U and Simpson to get clarifications.

Both Simpson and ICE attorney Guy Grande called out details from his testimony that were slightly different from what a fellow detainee had translated into English for Mr. U’s asylum application.

For instance, Mr. U testified that his wife had loaned money to someone, but his application said, “I lent” the money.

He also testified in court about an incident in which police threatened him that he did not mention in his application. His application did mention other instances of threats.

In the end, Simpson did not find him credible. He ordered Mr. U deported.

Mr. U felt fear flood his body, terrified what might wait for him in his country.

“It was a big shock and a hit for me. I immediately felt bad,” Mr. U said. “My blood pressure spiked, and my heart was hurting because I cannot return home.”

Simpson had the highest deportation rate of judges at Otay Mesa Detention Center, according to the Union-Tribune analysis.

The judge, who previously worked as an ICE attorney, ordered asylum seekers deported in more than 80% of the cases he heard. He granted relief in about 15%.

About a month after Simpson decided Mr. U’s case, the stepson and the stepson’s wife were granted asylum by a different judge. They did not have a lawyer either.

That judge, Ian Simons, had the highest grant rate and one of the lowest deportation rates among judges who heard cases at Adelanto at the time. He granted asylum in more than 30% of cases and ordered asylum seekers deported in over 60%.

Holding out for appeal

Appeals are an increasingly important part of the path toward protection, a reality often reflected in high reversal rates among some judges.

The Board of Immigration Appeals, or BIA, part of the same agency in the Department of Justice that employs immigration judges, is the first step in the process.

In the cases analyzed by the Union-Tribune, the BIA told more than 1 in 5 judges nationwide that their decisions were wrong at least 20% of the time.

Judges with fewer than 25 appealed cases were not included in the analysis.

A reversal rate of 20% is a common measure when looking for red flags with judges’ decisions, according to University of San Diego law professor Shaun Martin.

Four judges had reversal rates of 40% or higher.

“A consistently high reversal rate like that would cause you to look very closely to see if the judge was doing something systemically wrong,” Martin said.

Cases appealed beyond the BIA go to the federal circuit courts of appeal, leaving the immigration court system and entering the traditional legal process in the judicial branch. Data analyzed by the Union-Tribune did not include those court decisions.

Attorneys worry that more and more asylum seekers will have to go to the circuit courts to be granted relief. Under Trump, most recent appointees to the BIA are former immigration judges who had some of the highest asylum denial rates in the nation.

Ten members of the current 23-person board are former immigration judges appointed to their positions during the Trump administration.

All but one had deportation rates of more than 70% in at least one of the courts where they heard cases during the decade analyzed by the Union-Tribune. Eight of them had asylum grant rates below 10%, including two judges who didn’t award a single grant of asylum while at a particular court.

The board includes two other Trump appointees who worked in the Office of Immigration Litigation in the Department of Justice, which argues against asylum seekers who have appealed their cases to federal circuit courts, and one Trump appointee who worked for ICE before the administration hired her as an assistant chief immigration judge and ultimately a board member.

Six board members were appointed under the Obama administration, and four were appointed by earlier administrations.

So much is riding on appeals that attorney Dree Collopy, who wrote a 1,680-page legal guide on asylum, encourages lawyers to make sure that the record created in immigration court is incredibly thorough.

“We honestly can’t depend on immigration courts or the Board of Immigration Appeals to give any kind of due process or meaningful review of asylum cases anymore,” Collopy said.

But navigating the appeals process can be daunting and often takes years. Those who are already detained usually stay in custody for the duration. Many give up before they get that far.

Mr. U is better positioned than many.

Because of the outcry over family separation at the border and a class-action lawsuit in San Diego, he was released from detention and reunited with his family in Chicago. And he has a pair of attorneys — Bardis Vakili with the American Civil Liberties Union of San Diego and Imperial Counties and Luis Gonzalez, the attorney who’d originally agreed to take his case — working on his appeal.

They argued that Simpson denied Mr. U his right to an attorney, as well as his right to present evidence.

The BIA sided with Simpson.

Now Mr. U is waiting to find out if the 9th Circuit will change the outcome in his case.

He’s not allowed to work while he waits, so he has to depend on his stepson, who already has a green card.

He hopes to learn English and one day find a profession that will allow him to be useful to the country he wants to call home.

And he worries about the family members left behind.

Dwindling odds

Though asylum has become an increasingly polarized topic, building enough political will to make the system more equitable has historically been difficult.

“Asylum was always a political football,” said Ruth Wasem, who specialized in immigration policy at the nonpartisan Congressional Research Service before becoming a professor at the University of Texas at Austin.

The asylum system is part of a worldwide effort that grew out of failures to protect Jewish migrants during the Holocaust. It took the United States decades to fully codify its commitment to help victims of future atrocities.

Larry Gollub, a retired asylum officer, said that low grant rates are not proof that asylum seekers are filing frivolous or fraudulent claims.

“It’s just proof that they can’t meet the high standard for asylum,” Gollub said.

And they are struggling with the obstacles built into the system that make it less likely for them to win.

Methodology

Immigration court records are collected, tracked and released monthly by the Executive Office for Immigration Review within the Department of Justice. The San Diego Union-Tribune used the June 2019 release in its analysis.

Since case information is entered manually, various columns throughout the more than 50 million rows of data in the various tables contained slight inconsistencies, and the Union-Tribune cleaned these entries when necessary.

The analysis includes any cases with asylum applications that were completed from fiscal 2009 through fiscal 2018. Cases flagged as legal permanent residents, rider cases, cases originating with U.S. Citizenship and Immigration Services, and cases that did not include either a charge of being present without admission or arriving without a valid entry document were excluded from the analysis. Cases with incomplete information on these distinctions remained in the analysis.

Judges who heard less than 50 cases in a particular location and nationalities with less than 100 cases during the 10-year period were excluded to prevent skewed results.

Judge work histories were gathered by the Union-Tribune based on summaries released by EOIR when the judge was hired. When necessary, histories were confirmed or clarified using news clippings, court records, law firm biographies, law school newsletters, and in some cases, contacting individuals directly.

With guidance from statisticians, the Union-Tribune performed various statistical tests, including logistic and multivariate regressions, to determine the significance of findings.

Case data and analyses steps can be found on the Union-Tribune’s GitHub page.

With few exceptions, most of the changes to the system since it was created have made the process more difficult for asylum seekers, particularly for those who come to the border.

Among recent changes is the Trump administration’s “Remain in Mexico” program, which forces many asylum seekers to wait for their cases across the border.

Most recently, the administration published new rules that would narrow longstanding definitions in parts of asylum law and fundamentally shrink what options asylum seekers have if they manage to get their cases into immigration court. A second set of proposed rules would allow the government to bar people from asylum because of the pandemic.

The changes would further erode access to a system that is meant to function as part of an international screening process, one that determines which migrants should be recognized as refugees.

“I see our current moment as one of real crisis,” said Denise Gilman, co-director of the immigration clinic at the University of Texas at Austin School of Law. “Even as limited and paltry as the system was, we’re experiencing a moment of doubt as to whether it will even exist in any meaningful way.”

The Trump administration has argued that because the majority do not win their cases, many people applying for asylum do not have valid reasons to ask for help. Recent outcomes appear even lower than in previous years, partly because the administration changed the way outcome statistics are calculated in official reports.

Source: How the U.S. asylum system’s biases affect migrants’ chances

Liberals appealing ruling striking down Canada-U.S. asylum agreement

Not surprising given that the ruling reflected in part the particular circumstances of asylum seekers that were at the heart of the case:

The Liberal government is appealing last month’s Federal Court decision that ruled the Safe Third Country Agreement — Canada’s asylum agreement with the United States — infringes upon the Canadian Charter of Rights and Freedoms.

In a decision released July 22, Justice Ann Marie McDonald said the agreement — which stops people from entering either Canada or the U.S. at official Canada-U.S. border crossings and asking for asylum — violates the section of the Charter guaranteeing “the right to life, liberty and security of the person.”

McDonald suspended her invalid ruling for six months to allow Parliament to respond.

Public Safety Minister Bill Blair said in a statement Friday the government filed an appeal today because they believe there are factual and legal errors in some of the court’s key findings.

“There are important legal principles to be determined in this case, and it is the responsibility of the government of Canada to appeal to ensure clarity on the legal framework governing asylum law,” reads the statement.

“Canada has a long and proud tradition of providing protection to those who need it most by offering refuge to the world’s most vulnerable people, and the government of Canada remains firmly committed to upholding a compassionate, fair and orderly refugee protection system. The STCA remains a comprehensive vehicle to help accomplish that, based on the principle that people should claim asylum in the first safe country in which they arrive.”

The 16-year-old agreement, which remains in effect, recognizes both countries as “safe” countries for migrants and states that refugee claimants are required to request refugee protection in the first country they arrive in — meaning Canadian border officials would send back to the U.S. any would-be refugee claimants arriving at an official border crossing into Canada.

The Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and a number of individual litigants brought the original case forward and argued that by returning ineligible refugee claimants to the U.S., Canada exposes them to risks — including detention and eventual deportation to countries where they could face harm.

Conservative MP and immigration critic Peter Kent immediately issued a statement supporting the appeal.

“While we are pleased the government has decided to appeal this ruling, Canadians’ confidence in the immigration system has been rocked by years of Justin Trudeau’s failure to address these concerns, and his failure to restore integrity and compassion to the immigration process,” he said in a statement.But the NDP’s critic Jenny Kwan called the move the a “heartless and shameful act.”

“By appealing this ruling, the federal Liberals are saying they’d rather let people seeking the safety of asylum here in Canada suffer under Donald Trump’s rules, than stand up for human rights and Canadian values,” she wrote in a statement Friday afternoon.

“It’s un-Canadian.”

Source: Liberals appealing ruling striking down Canada-U.S. asylum agreement

Le PLQ et QS dénoncent un programme de régularisation discriminatoire

Appropriate criticism over the narrowness of the program;

Le Parti libéral du Québec et Québec solidairejugent trop sévères les conditions d’admission au Programme spécial visant à faciliter l’octroi de la résidence permanente aux demandeurs d’asile qui, au plus fort de la crise sanitaire, suaient sang et eau dans les résidences pour personnes âgées assaillies par la COVID-19.

« On circonscrit l’accès à la mesure à un secteur [la santé], et à l’intérieur du secteur, même si tout le monde a eu un risque [de contracter le coronavirus], on circonscrit encore plus… Ça, ça ne serait pas discriminatoire ? » a demandé l’élu libéral Gaétan Barrette en commission parlementaire lundi.

Le Programme spécial des demandeurs d’asile en période de COVID-19 (PSDAPC) s’adresse aux « anges gardiens » qui étaient « sur la ligne de front » à prodiguer des « soins directs à la population pendant la pandémie », a expliqué la ministre de l’Immigration, Nadine Girault. « Ceux qui ont pris le plus de risque », a-t-elle résumé.

Le PLQ et QS se sont tour à tour désolés de voir les autres travailleurs du secteur de la santé — les préposés à l’entretien des résidences pour aînés frappés de plein fouet par le coronavirus, par exemple — laissés en plan par le PSDAPC. Un « vrai, vrai, vrai geste d’humanité » serait de « remercier […] tous les gens qui ont pris un risque ». « Que je sois préposé à l’entretien ménager ou gardien de sécurité, quand le virus je l’attrape, puis que je meure, c’est moi qui suis mort, c’est ma famille qui pâtit. C’est ça un risque », a souligné M. Barrette.

On circonscrit l’accès à la mesure à un secteur [la santé], et à l’intérieur du secteur, même si tout le monde a eu un risque [de contracter le coronavirus], on circonscrit encore plus…

« On a envoyé au combat […] une armée de gens sans arme », a-t-il ajouté, tout en rappelant l’absence d’équipements de protection individuelle en quantité suffisante dans les milieux de vie pour personnes âgées après l’arrivée de la COVID-19 en sol québécois.

L’ex-ministre de la Santé soupçonne le gouvernement caquiste d’avoir « mis un frein » à la volonté du gouvernement fédéral de régulariser les employés du réseau de la santé en situation de précarité afin de respecter les seuils d’immigrationqu’il s’est fixés.

Le député solidaire Andrés Fontecilla a suggéré lundi d’accroître la portée du Programme spécial afin que les préposés à l’entretien, les agents de sécurité, les travailleurs agricoles, les travailleurs d’abattoirs ou d’entrepôts en situation de précarité puissent aussi s’y inscrire.

La ministre de l’Immigration, Nadine Girault, a dit être en paix avec sa décision de permettre seulement aux demandeurs d’asile ayant prodigué des soins directs à des patients — dont des préposées aux bénéficiaires et des aides-infirmières — de s’inscrire au PSDAPC, ce qui leur permettra de s’établir au Québec. « Ce n’était pas un programme discriminatoire. C’était un programme pour remercier les gens qu’on voulait remercier chez les “anges gardiens” qui ont pris soin de nos gens. C’est tout simplement ça », a-t-elle fait valoir.

Puis, elle a cédé, sans avertissement, la parole au nouveau sous-ministre de l’Immigration, Benoit Dagenais. Béant de surprise, le haut fonctionnaire s’est mis à la tâche d’énumérer les 10 orientations de la Planification pluriannuelle de l’immigration 2020-2022 léguée par l’ex-ministre Simon Jolin-Barrette.

Il a par la suite mentionné que le Plan d’immigration du Québec 2021 sera établi à la lumière de la situation économique du Québec, qui a été fragilisée par l’arrivée du coronavirus en sol québécois le printemps dernier. « La crise sanitaire, évidemment, on va la prendre en considération », a souligné M. Dagenais.

De son côté, Mme Girault a indiqué qu’« il n’y aura pas de baisse des seuils d’immigration ».

Lutte contre le racisme

Le PLQ a aussi jeté le doute sur la volonté du gouvernement de lutter contre le racisme au Québec, lundi, après que Mme Girault eut refusé net de nommer les groupes rencontrés jusqu’à aujourd’hui par le Groupe d’action contre le racisme (GACR), dont elle assure la coprésidence.

Le « groupe des sept » élus de la Coalition avenir Québec, qui a été mis sur pied au lendemain de la mort de l’Afro-Américain George Floyd sous le genou d’un policier de Minneapolis, doit présenter une série d’actions visant à faire reculer le racisme au cours de l’automne.

« C’est malheureux et c’est décevant de ne pas avoir l’information », a dit la députée libérale Jennifer Maccarone, tout en invitant le GACR à solliciter sans délai l’avis de la Ligue des Noirs, du Congrès maghrébin au Québec, de la Ligue des droits et libertés…

Source: Le PLQ et QS dénoncent un programme de régularisation discriminatoire

‘Why not us?’: Asylum seekers on COVID-19 front lines demand permanent residency

All too predictable, the understandable debates over who’s in and who’s out, which happens with respect to most government programs, whether immigration or other:

Doll Jean Frejus Nguessan Bi says he couldn’t sleep at all last night.

The asylum seeker from Ivory Coast works as a security guard in hospitals and long-term care homes in the Montreal area, where he watched many of his colleagues stop coming in as deaths linked to COVID-19 began to mount this spring.

But while Nguessan Bi kept working, he said he found out Friday that he would be excluded from a new government program to fast-track the permanent residency applications of some asylum seekers working on the front lines during the pandemic.

“Why (not) us? We who gave our hearts and our love… Why are we abandoned?” he said in an interview at a protest camp across the street from Prime Minister Justin Trudeau’s Montreal riding office Saturday. “What did we do to deserve this?”

Ottawa announced Friday that asylum seekers working in specific jobs in the health-care sector would be eligible for permanent residency without first having to wait for their asylum claims to be accepted, as is typically the process.

Immigration Minister Marco Mendicino said the move came in response to public demand for so-called “Guardian Angels” — many in Quebec — to be recognized for their work.

“They demonstrated a uniquely Canadian quality in that they were looking out for others and so that is why is today is so special,” Mendicino said in an interview Friday afternoon.

But asylum seekers and their supporters say Ottawa’s plan excludes thousands of workers without permanent status in Canada who have laboured on the front lines during the pandemic, often at great personal risk to themselves and their families.

That includes security guards and janitorial staff, factory workers, and farm labourers, among others.

“I have friends who worked with me in security that abandoned (their posts) because they were afraid of getting infected. But I stayed,” said Nguessan Bi.

He said he wants Trudeau and Quebec Premier Francois Legault to do something to help asylum seekers who are not eligible for the new program.

Several dozen people rallied in front of Trudeau’s office on Saturday to demand permanent residency for all asylum seekers.

“It’s an act of recognition. They deserve status,” Joseph Clormeus, a member of Debout pour la dignite, a Montreal advocacy group that organized the rally, told the crowd.

Anite Presume, a Haitian asylum seeker who came to Quebec in August 2017 from the United States, was among the protesters.

She works in a medication factory, and said she kept working during the pandemic despite the risks.

“To take the bus, we were all stressed, but we still went to work because it was essential. They needed medication for the hospitals,” she said in an interview.

She said she has not received a response yet to her application for asylum in Canada, and lives under a cloud of uncertainty and stress about her future.

“It’s a feeling of rejection,” Presume said, about not being included in Ottawa’s regularization program. “They rejected us as if we did nothing.”

To apply for residency under the new program, applicants must have claimed asylum in Canada prior to March 13 and have spent no less than 120 hours working as an orderly, nurse or another designated occupation between the date of their claim and Aug. 14.

They must also demonstrate they have six months of experience in the profession before they can receive permanent residency and have until the end of August 2021 to meet that requirement.

The program was the result of negotiations between the federal government and Quebec, who have had a strained relationship on the question of immigration, and in particular the asylum claimants, in recent years.

Public support has been building for asylum seekers’ demand for permanent residency after it was revealed that refugee claimants were among those toiling in Quebec’s long-term care facilities, which were hard-hit by COVID-19.

Source: ‘Why not us?’: Asylum seekers on COVID-19 front lines demand permanent residency

Canadian court correctly finds the U.S. is unsafe for refugees

Sean Rehaag and Sharry Aiken on the court decision. To date, haven’t seen any media commentary from those more to the right on the court decision and the CPC Immigration Critic Peter Kent has also been silent. Sharp contrast to all the earlier commentary and criticism:

This week, Canada’s Federal Court ruled that the Canada-U.S. Safe Third Country Agreement (STCA) is unconstitutional.

Under the agreement, refugee claimants entering Canada at land ports-of-entry can be returned directly to the United States without being allowed to make a refugee claim in Canada. The agreement was a quid pro quo for concessions offered to the U.S. after 9/11, including a “smart border” accord, enhanced information-sharing and joint border enforcement.

Advocates for refugees have long argued that the STCA violates international refugee law and Canadian constitutional law. Differences between the refugee determination systems in Canada and the U.S., as well as differences in the rights enjoyed by refugee claimants in both countries, mean that some people who would be recognized as refugees in Canada would be denied protection south of the border.

In other words, the U.S. is not “safe” for at least some refugees.

Trump’s election worsened situation

These arguments took on an especially urgent tone after Donald Trump’s election as American president in November 2016.

The Trump administration has implemented many racist, xenophobic and anti-refugee policies to dissuade people from seeking asylum in the U.S. For example: Harsh detention practices (including detention of young children), family separation, restrictions on the refugee definition (such as excluding people facing gender-based violence), militarization of the border and of course attempting to build a wall along the U.S.-Mexico border.

This prompted a growing chorus of voices — from law professors to human rights organizations and political parties — to call on Canada to suspend or withdraw from the STCA.

Their arguments are persuasive. How can a country be considered safe for refugees if it locks up refugee kids in cages or refuses refugee protection to women facing gender-based violence?

Closing the loophole

Unfortunately, these voices have been ignored. Instead, worried about critiques from the right about weakness on border control, the federal government under Prime Minister Justin Trudeau contemplated trying to get the U.S. to extend the agreement to the entire border — not just official land ports of entry.

The U.S., however, has little incentive to expand the agreement, which would block even more asylum-seekers from leaving the United States for Canada, and there has been little movement on this front.

This inaction left the matter to the courts. Lawyers for refugee and human rights organizations, as well as refugee claimants, went to Federal Court, arguing that the STCA is unconstitutional.

Federal Court Justice Ann Marie McDonald agreed with them.

Her decision focused narrowly on what happens to refugee claimants who are turned away under the STCA.

And what happens is atrocious. Refugee claimants are handed over to American officials who detain them for weeks. Conditions of detention are inhumane. Solitary confinement is common. Access to lawyers is restricted, which makes it harder to secure refugee protection.

Worse still, these are intentional policies aimed at making the experience of seeking asylum in the U.S. so traumatic that others will be discouraged from making the same journey.

As Justice McDonald held:

“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty …. penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA or the foundational conventions upon which it was built.”

No safety for refugees

In other words, U.S. immigration detention practices violate international refugee law and undermine the basic premise of the STCA that both countries are safe for refugees.

So there we have it. A Canadian court has determined that American detention practices are “grossly disproportionate” and “shock the conscience,” and that Canada cannot be complicit by sending refugee claimants to the U.S. to face these practices without violating constitutional rights to life, liberty and security of the person.

The question now is what comes next.

The Federal Court suspended its declaration of constitutional invalidity for six months to allow Canadian Parliament to respond.

The government could appeal the decision. If that happens, the STCA will be tangled up in the courts for years — during which time more asylum-seekers like Nedira Mustefa, one of the applicants in the case, will find themselves in solitary confinement in U.S. detention centres. Mustefa told the court she felt “scared, alone and confused,” with no sense of when she would be released, during her time in American detention.

Alternatively, the Canadian government can send a clear signal that it cares about constitutional and international law, heed Justice McDonald’s findings and take steps to immediately suspend the STCA.

The detention practices that she focuses on in her decision are only one among many ways in which the U.S. has attacked refugee rights. These attacks are mounting. The Trump administration recently proposed reforms that would gut what remains of the American asylum system. Every day that the STCA remains in effect, Canada continues to be complicit in these attacks.

Enough is enough. The STCA must be suspended.

Source: Canadian court correctly finds the U.S. is unsafe for refugees

Coyne: If the United States was ever a ‘Safe Third Country,’ it is no longer

Likely the best commentary to date on the Federal Court decision.

Will be interesting to see the commentaries and reactions by those who have roundly criticized the STCA loophole, the Roxham Road asylum seekers and the government’s handling over the next few days:

One of the things on which Canadians like to congratulate themselves is our generous treatment of refugees. And it’s true, up to a point. The protections afforded asylum applicants in Canada not only meet the standards set by the 1951 United Nations Convention Relating to the Status of Refugees, but also exceed them.

Certainly if you compare Canadian refugee policy with that of the United States, it looks considerably more liberal. But here’s the thing: For particular types of refugee claimants, Canadian refugee policy is U.S. policy. For the better part of two decades, since the 2004 Safe Third Country Agreement between the two countries went into effect, asylum seekers arriving at land-based ports of entry on the border have been routinely turned back, without a hearing.

The premise: As each country deems the other to be “safe” in terms of its treatment of refugees (defined, under the UN convention, as those with a “well-founded fear of persecution” in their country of origin), so asylum seekers may be obliged to apply in whichever of the two they first arrive in. In practice, this means the U.S. agrees to take back those applicants Canada refuses to admit; the flow is almost never in the other direction.

That, indeed, was the point. The agreement was struck at Canada’s request in the aftermath of the Sept. 11, 2001, attacks, when it was feared a flood of applicants, fleeing north from the suddenly less hospitable U.S., would overwhelm the Canadian refugee system. It was vintage Canadian hypocrisy: We would preserve our more generous system by offloading much of its work onto their less generous system.

Well, now our bluff has been called. A Federal Court judge has ruled the legislation implementing the treaty is a violation of the Charter of Rights and Freedoms, specifically its guarantees of the right to “life, liberty and security of the person.” The unspoken premise of the agreement, that the Americans’ treatment of refugee claimants may be a little rough and ready, but not so bad as to be intolerable – at least to those not forced to endure it – has been held up to the light of actual experience, and found bogus.

The histories of those who brought the case make harrowing reading: a woman from El Salvador who was raped by gang members, who threatened to kill her and her daughters if she went to the police; a Muslim woman from Ethiopia, a member of its Oromo minority, who had come to the United States as a child but now faced deportation; a family from Syria, also Muslims, fleeing that country’s civil war, only to find themselves in the America of President Donald Trump’s “Muslim ban.”

Yet in all three cases, Canadian border authorities were prepared to hand them back to their U.S. counterparts. Two of the three were spared this fate only because they were able to find a lawyer in time to file emergency stays of removal. The experience of the third, Ethiopian national Nedira Mustefa, is instructive. She was thrown in prison, held in solitary confinement for a week, and detained for a month in appalling conditions: without proper food, in freezing cold, in the same cells as criminals. She told the court she “did not know when [she] would be released, if at all.”

This is not unusual. Evidence before the court showed that those turned back at the border are “immediately and automatically imprisoned” by U.S. authorities, for weeks or even months – as an explicit penalty for having applied for refugee status. They may often find themselves without lawyers, without translators, even without access to a phone. And awaiting them at the end of their ordeal is the very real prospect of deportation, with far fewer legal safeguards than the Canadian refugee determination system provides.

There is no use pretending Canada is not responsible for their treatment, though government lawyers tried. In many cases, they are physically handed over to the Americans by the Canadian authorities whose protection they had sought. Yet there can be little doubt what awaits them on the other side, and little doubt that Canadian authorities know it. It is not the right to live in Canada they are thereby denied. It is the right not to be arbitrarily detained, or to be deported to face death or persecution in their countries of origin. It is, at the very least, the right to have their cases heard fairly, which one part of our laws loudly proclaims while another quietly denies.

As a practical matter, the Safe Third Country Agreement was already imploding under the weight of its many loopholes and anomalies: Applicants who arrived “irregularly,” between ports of entry, were not turned back, even as those who entered by the normal channels were. But now its very premise has been exposed as a lie. Whatever case there may have been for designating the United States as a safe third country while George W. Bush or Barack Obama were president, it no longer exists. Outsourcing Canadian refugee policy was always a morally dicey proposition. In present circumstances, it is untenable.

That isn’t to say that the concerns that gave rise to it are entirely unfounded. The differences between U.S. and Canadian refugee policies are bound to encourage claimants to head from one to the other. Once it is known that Canadian authorities no longer have the legal power to reject their claims out of hand, they may arrive in numbers that our offices are not equipped to handle. But the alternative can no longer be just to turn them back and hope for the best – even assuming we could. Not if we wish to live up to our own lofty ideals.

This was a decision of the Federal Court, not the Supreme Court. The judge has suspended its application by six months. The government may appeal. Or it can use the time to try to come up with a solution. Six months from now there may well be a new administration in Washington. Perhaps it may adopt a less draconian position toward refugee claimants. Perhaps the agreement might even be renegotiated, in a way that gave claimants more incentive to work within the system, because they were less fearful of the result.

But whatever happens, there can be no more pretense. The United States is not a safe third country, and we know it. We have no blind eye left to turn.

Source: If the United States was ever a ‘Safe Third Country,’ it is no longer

Also, a good history and analysis by Richard Warnica:

Lise Thibault slept in the front room, with the window open, so the winter air could slip in and keep her cool. And as she slept, she dreamed. In the distance, outside the field of her sleeping sight, a baby cried. It wasn’t her baby. She knew that, even in her dreams. She was 80 years old then. Her children were grown. They had grown children of their own.

On the baby cried, and Thibault stirred, but she didn’t wake. It was the kind of cry you hear through walls — thin and high and hiccupping. The kind of cry that perks a parent’s ears, no matter how old their children are — the kind of cry you wouldn’t normally hear on a wide, wooded lot in the Quebec countryside, just over the border from Roxham Road.

Thibault opened her eyes and her dream cut short. But the crying didn’t end. It was the middle of the night in late February. Her nearest neighbours were out of earshot. But still the cries carried on. So Thibault rose from her bed. She walked to the window. She looked out into the dark road.

It was late February 2017. Donald Trump had just become president and Justin Trudeau had just told the world, via Twitter, that Canada still welcomed the persecuted and afraid. On Chemin Roxham, where Thibault has lived with her husband since 1968, the border seemed to be fading away. People were walking across — in ones and twos and 10s. They came in families and alone. They walked up a dead-end road in nowhere New York. They crossed a deep ditch and entered Canada, where for a time they became the biggest political story in the country — a lightning rod for debates over border control, loopholes, populism, racism and who is and isn’t a legitimate refugee.

Standing in the snow that night, beneath the amber streetlight, dressed for a different, much warmer world, Thibault saw a young woman holding a baby. A second child, a toddler, stood by her side. “She was so obviously cold,” Thibault said, “and so were the children.” Soon a border control official drove by. He phoned the police, and an officer followed. The mother tried to give him some money, Thibault said, but he refused. Instead, he put the children in the car. “Don’t cry,” he told them. And he drove them all away.

On Wednesday, a federal court judge in Toronto declared that the Safe Third Country Agreement, the border pact that made Roxham Road a thing, violates the Canadian Charter of Rights and Freedoms. The ruling validated decades of arguments made by refugee groups, lawyers and advocates for the displaced and stateless. At the most basic level, it also affirmed what activists on both sides of the border have been saying for almost four years, that the United States, under Donald Trump, is not a safe place for asylum seekers and refugees.

As is often the case with legal rulings of sweeping effect, Wednesday’s judgement actually turned on something quite human and narrow. The case was brought by a coalition of advocacy groups, including the Canadian Council for Refugees and Amnesty International, on behalf of several test plaintiffs. Among those was Nedira Jemal Mustefa, an Ethiopian woman who had lived in the United States since she was 11 years old.

In April 2017, Mustefa tried to cross the border at Saint-Bernard-de-Lacolle, a few kilometres from Roxham Road. After she told border guards she intended to apply for asylum, she was questioned for 30 hours, denied entry then delivered back into the hands of U.S. authorities. She spent the next 30 days in a maximum-security prison in upstate New York sometimes known as “Little Siberia” for its freezing conditions.

For the first seven days in Little Siberia, Mustefa was locked in solitary confinement, an experience she described as “terrifying, isolating and psychologically traumatic.” It was that experience that Federal Court Justice Ann Marie McDonald leaned on in her ruling. The Canadian officials, she wrote, had handed Mustefa over to the U.S. knowing she would be imprisoned, knowing, in other words, that she would be deprived of her fundamental rights under Canadian law.

“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty,” she wrote. “The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the (Safe Third Country Agreement) or the foundational Conventions upon which it was built. … For these reasons, I conclude that the Applicants have established a breach of section 7 of the Charter.”

Ironically, had Mustefa tried to cross the Canadian border a few kilometres away, at Roxham Rd., she would have been allowed in, permitted to make her claim and never would have become a test case. That’s what has long driven critics of the Safe Third Country Agreement, on the left and the right, mad.

The deal, hatched in the aftermath of September 11, 2001, was both incredibly broad and extremely porous. With few exceptions, it meant that anyone crossing into Canada from the U.S., by land, was prevented from making a refugee claim. It worked the other way too. The idea was that both Canada and the U.S. were supposed to be safe, and that would-be refugees should be making their claims in whichever “safe” country they arrived in first.

But it never totally worked that way. Critics on the left argued that the United States was not, in fact, safe. Critics on the right, meanwhile, hammered on the fact that the deal only ever applied at official border crossings. For a long time, those arguments weren’t academic. But they weren’t totally mainstream, either. People crossed irregularly. But never in great numbers. When Donald Trump was elected, the levees broke and the floods began.

Beginning almost immediately after Trump’s election, people starting walking over the border in serious numbers. They crossed in the winter, at great peril, into Manitoba and Saskatchewan. They crossed outside Vancouver and near Niagara Falls. But most of them, tens of thousands of them, crossed at Roxham Road, a dead-end street in upstate New York that ended in a tiny ditch in the Canadian woods.

So many of them crossed, so regularly, that Canadian officials eventually filled in a path over the creek so asylum seekers could roll their luggage across. They hauled in trailers and port-o-potties and built a semi-permanent reception centre on the other side of the border. Mounties would stand and sternly warn asylum seekers they’d be arrested if they crossed, then, once they crossed, help them with their bags.

It was a strange and contradictory thing to witness. And it represented, with each crossing, the strange and contradictory nature of asylum policy under Justin Trudeau. He wanted Canada to look welcoming. It was good for the brand. But he didn’t love dealing with what it meant to welcome so many, so fast.

For months, Roxham Road was the biggest story in Canada. It carried on as a political lightning rod for more than a year. And then, the issue just faded away. The traffic at the border never really stopped. People kept on crossing. But Canadians and Canadian politicians mostly stopped talking about it. The Liberals didn’t love getting painted as soft on border security. The Conservatives weren’t fond of getting lumped in with the angry, anti-outsider right. In any case, when the election came last year, Safe Third Country, asylum seekers, and Roxham Road barely made a ripple.

All the while, in the background, lawyers kept working away at the case that ended Wednesday. And that case means that now, whether they like it or not, the Liberals have to deal with the issues underlying Roxham Road. It is patently clear that the United States under Donald Trump is not a safe country for asylum seekers. Indeed, the Trump administration doesn’t want it to be. That’s their border plan: Make things so inhospitable in the U.S. that asylum seekers never even bother to try. That the Liberal government went to court to argue otherwise was absurd. That they lost was something of a surprise.

What happens next though, isn’t clear. Justice McDonald gave the government a six-month grace period before her ruling comes into effect. In six months, the world could be a different place. Joe Biden could be the U.S. president. The conditions for asylum seekers in the U.S. could be different than they are today. The government could amend the law, appeal the ruling or find another way to punt the issue down the road. Until then, in theory, asylum seekers could still get turned away at a border crossing and welcomed at a border ditch. A system that never totally made sense, one that is now officially, legally, in violation of the Charter, could remain in place.

Whatever comes next, the government should be careful. This country has an obligation to treat people who come here, by any route, as human beings. That obligation doesn’t go away just because our closest neighbour has decided it doesn’t apply to them anymore.

Source: Canadian federal court ruling could mean the end of Roxham Road border crossings

Asylum claims being filed in Canada continue to rise slightly despite pandemic

The overall trend, however, is overwhelming lower than pre-COVID as shown in the chart above (June data to be added):

The number of asylum claims being filed in Canada continues to rise slightly despite ongoing global travel restrictions.

The latest figures from the Immigration Department show 1,500 claims for refugee status were filed in Canada in June, up from 1,400 in May.

For the first time since April — the first full month of major travel restrictions designed to slow the spread of COVID-19 —  refugee claims were filed at airports. There were also multiple claims at marine ports.

Also slightly on the rise were the number of people stopped by the RCMP trying to cross irregularly into Canada: 32 in June, up from 21 in May.

Currently, Canada is turning back those who show up at unmarked border crossings, one of several measures being taken at the border in response to the pandemic.

How many people will continue to attempt to enter Canada irregularly may change in the coming months, in the wake of a Federal Court decision Wednesday that the Safe Third Country Agreement between Canada and the U.S. violates the charter.

The agreement is the reason just over 3,000 people this year have tried to cross irregularly into Canada in order to file for asylum. Under the deal, they would be turned away at formal border points.

They can still, however, lodge a claim once they are inside Canada.

But Federal Court Justice Ann Marie McDonald said Wednesday that elements of the law underpinning the agreement violate the constitutional guarantee of life, liberty and security.

Under the agreement, which took effect in 2004, Canada and the U.S. recognize each other as safe places to seek protection.

That means Canada can turn away those who arrive at land ports of entry along the Canada-U.S. border on the basis they must pursue asylum in the U.S., the country where they first arrived.

In the long-running court case, the applicants, who are citizens of El Salvador, Ethiopia and Syria, arrived at a Canadian land entry port from the U.S. and sought refugee protection but were refused.

They had argued in court that when returning ineligible refugee claimants to the U.S., Canada exposes them to risks in the form of detention and other rights violations.

In her decision, McDonald concluded the consequences ineligible claimants may face upon return to the U.S. are “inconsistent with the spirit and objective” of the refugee agreement and amount to a violation of the rights guaranteed by Section 7 of the charter.

The judgement, however, was suspended for six months to allow the government to find a solution.

Talks between Canada and the U.S. to update the Safe Third Country Agreement have been underway for a while, and rights advocates in both countries have urged Canada to use the ruling as opportunity to push them forward.

“Human Rights First notes that the Trump administration’s treatment of asylum seekers is now even worse than it was at the time evidence was submitted in this case,” the non-partisan American group said in a statement.

“In light of the court’s decision and this ongoing deterioration, Human Rights First urges the Canadian government to take this opportunity to withdraw from the ‘safe third country’ agreement.'”

The government can’t sit on its hands and do nothing, said Queen’s University professor and immigration law expert Sharry Aiken.

She said the agreement should be suspended immediately, as the while the court was only dealing with the legality of the deal, it continues to impact refugee claims.

“In my view the Canadian government has a responsibility to act immediately to prevent further violations of our constitution and the international human rights commitments to which Canada has agreed to be bound,” she said.

“It also means that it would be unconscionable for the government to appeal this ruling and seek a stay of the ruling.”

Current travel restrictions in place to slow the spread of COVID-19 appear to have placed downward pressure overall on asylum claims.

By the end of June 2019, 26,725 claims were filed, compared with 16,865 asylum claims filed so far this year.

The rise in June of this year was due to an increase in people already in Canada making claims at government offices, as opposed to those requesting asylum immediately upon arrival in Canada.

Source: Asylum claims being filed in Canada continue to rise slightly despite pandemic

‘Canada cannot turn a blind eye’: Federal court says Safe Third Country Agreement with U.S. violates charter

The big news this week, with the question will the government accept or appeal this decision given that defending the STCA with the Trump administration would be different under a possible Biden administration:

In a ruling that lambastes the American government’s detention of asylum-seekers and chastises Canadian officials as complicit, this country’s Federal Court has ruled the so-called Safe Third Country Agreement is unconstitutional.

The ruling is being hailed as a major victory for refugee rights — and drawing calls from advocates for Ottawa to immediately and unilaterally suspend the agreement with the United States.

“Security of the person encompasses freedom from the threat of physical punishment or suffering,” Justice Ann Marie McDonald wrote in her 62-page decision, which was released Wednesday.

“The accounts of the detainees (in the U.S.) demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims.”

Under the bilateral pact, Canada and the U.S. each recognize the other country as a safe place to seek protection.

That means Canada can turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border on the basis they should pursue their claims in the States, the country where they first arrived.

The agreement, which took effect in 2004, was originally touted by officials in both countries as a way to curb “asylum shopping.” However, critics have long argued that the U.S. asylum system is cruel and inhumane — critiques that have grown louder and more pronounced during the Trump administration.

In its judgment, the court found it unconstitutional to ban would-be claimants from attempting to enter either country at official border crossings. The court gave Ottawa six months to respond and fix the policy to make sure it complies with the Canadian charter before declaring the accord invalid.

“The evidence demonstrates that the immediate consequence to ineligible STCA claimants is that they will be imprisoned solely for having attempted to make a refugee claim in Canada,” McDonald said. “The ‘sharing of responsibility’ objective of the STCA should entail some guarantee of access to a fair refugee process.”

Refugee advocates urged the Liberal government to move quickly to suspend the agreement, which the terms allow.

“Refugee claimants turned away at the Canada-U.S. border face grave human rights violations in the United States, notably atrocious conditions in immigration detention,” said Alex Neve, Secretary General of Amnesty International Canada, one of the parties.

“Under no circumstances should the government consider appealing this ruling. It is time to stop pretending that all is right when it comes to protecting the rights of refugees in the U.S. Not one more refugee claimant should be turned away at the Canada-U.S. border.”

Mary-Liz Power, spokesperson for Public Safety Minister Bill Blair, would not say whether the government planned to appeal the court decision.

“We are aware of the Federal Court’s decision and are currently reviewing it. Although the Federal Court has made its ruling, that decision does not come in effect until January 22, 2021. The Safe Third Country Agreement remains in effect,” Power said in an email.

U.S. President Donald Trump’s anti-migrant policies have spurred an influx of so-called irregular migrants skirting asylum restrictions by crossing outside of Canada’s official ports of entry, where restrictions have applied.

More than 50,000 asylum seekers have come here that way via the U.S. over the past two years. Once here, after passing initial medical and security screenings, refugees can work and access health-care pending a decision on their asylum claims.

“When the Trump administration attempted to impose their travel ban in January 2017, it was obvious that the Liberal government could no longer count on the United States to live up to its international and humanitarian obligations,” said NDP immigration critic Jenny Kwan.

“Contrary to what Minister Blair has said in the past, this (ruling) proves that refugees are not simply ‘asylum shopping.’”

After Trump’s election in November 2016 with an anti-immigration agenda, Canadian and U.S. non-governmental organizations and refugee lawyers started their effort to challenge the legality of the asylum restrictions.

In 2017, they connected with a Salvadoran woman in the U.S. who sought asylum after she was raped and threatened by the notorious Mara Salvatrucha gang in El Salvador, and agreed to be the lead litigant. The other litigants included a Syrian family of four and a young Ethiopian woman, all of whom were denied access to asylum in Canada. The three Canadian rights groups, including the Canadian Council for Refugees and the Canadian Council of Churches, also enlisted nine other witnesses

During the hearing in November, the court reviewed evidence that showed detainees in the U.S. had no access to phone calls and legal counsel or translators; have been lost due to transfers between detention centres; and sometimes were held in solitary confinement.

“The court could hardly fail to be moved by the testimonies of the appalling experiences of people in the U.S. immigration detention system, after Canada closed the doors on them,” said Dorota Blumczynska, president of the Canadian Council for Refugees.

“Their experiences show us and convinced the court that the U.S. cannot be considered a safe country for refugees.”

The court decision also called out Canadian officials’ responsibility.

“Canada cannot turn a blind eye to the consequences … in its efforts to adhere to the STCA. The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty,” Justice McDonald wrote.

Queen’s University immigration law professor Sharry Aiken said it’s “reasonable” to expect an influx of refugee claimants at official ports of entry from south of border in light of the ruling, though it may not happen immediately due to the COVID-19 border restrictions.

“The court ruling itself does not address the current (pandemic) context but the implications of the ruling signal that Canada should step up immediately to protect the rights of claimants approaching Canada for asylum,” Aiken said.

“Canada has proven itself more than capable of adequately addressing spikes in the numbers of asylum seekers. Constitutional rights are not about the numbers, in any event.”

Source: https://www.thestar.com/news/canada/2020/07/22/canadian-court-says-safe-third-country-agreement-with-us-violates-charter.html

Trump administration extends work visa ban, creating uncertainty for Canadians

The Canadian angle (applies more broadly of course, with India likely being the country most affected):

The Trump administration said Monday that it is extending a ban on green cards issued outside the United States until the end of the year and adding many temporary work visas to the freeze — including those used heavily by technology companies and multinational corporations — tossing a cloud of uncertainty over thousands of Canadians, including cross-border workers and their families.

The administration cast the effort as a way to free up jobs in an economy reeling from the coronavirus. A senior official who spoke to reporters on condition of anonymity estimated the restrictions will free up to 525,000 jobs for Americans.

The ban, while temporary, would amount to major restructuring of legal immigration if made permanent, a goal that had eluded the administration before the pandemic. Long-term changes targeting asylum seekers and high-tech workers are also being sought.

Business groups pressed hard to limit the changes, but got little of what they wanted, marking a victory for immigration hardliners as Trump seeks to further solidify their support ahead of the November election.

The ban on new visas applies to H-1B visas, which are widely used by major American and Indian technology company workers and their families, H-2B visas for nonagricultural seasonal workers, J-1 visas for cultural exchanges and L-1 visas for managers and other key employees of multinational corporations.

There will be exemptions for food processing workers, which make up about 15 per cent of H-2B visas, the official said. Health care workers assisting with the coronavirus fight will continue to be spared from the green-card freeze, though their exemption will be narrower.

“In the administration of our nation’s immigration system, we must remain mindful of the impact of foreign workers on the United States labour market, particularly in the current extraordinary environment of high domestic unemployment and depressed demand for labour,” Trump wrote in his presidential proclamation.

Potential effect on Canadians

These moves could affect thousands of Canadians. They are far more severe than an earlier immigration announcement from Trump in April, which affected only applications for permanent immigration visas.

The new provisions touch work visas used by many Canadians. Canadians filed more than 4,000 H-1B applications in each of the last two years, and numerous others would get L1 business visas in a normal year, including executives working for cross-border companies.

Source: Trump administration extends work visa ban, creating uncertainty for Canadians