Canada Questions the Safety of Asylum Seekers in the U.S.

A legal challenge to a bilateral treaty argues that the Trump Administration is not meeting its commitments to human rights.

On a brisk morning in February, 2016, Ahmad, his pregnant wife, and their two toddlers got into a taxi in Buffalo, New York. “I want to go to the Canadian border,” he told the driver. Their journey had begun five years earlier, when Ahmad and his wife attempted to flee Syria, in the run-up to the civil war. On their way to the Damascus airport, the couple was stopped at a checkpoint, where Ahmad, who had participated in opposition protests, was beaten by Syrian officials and forced to pay a five-hundred-dollar bribe in exchange for his and his family’s release. They were able to live as temporary residents in Abu Dhabi until the U.A.E. government unexpectedly expelled the family, in December, 2015. Ahmad, who asked to be identified only by his middle name, knew that his life would be at risk if the family returned to Syria; instead, they flew to New York on U.S. tourist visas. Two days after landing at J.F.K. airport, Ahmad got a call from a Syrian friend in Canada, who told him that the new Prime Minister, Justin Trudeau, was welcoming Syrians. “Come to the border,” he said. “They will accept you.”

What Ahmad didn’t know, though, is that the few days his family had spent in the U.S., researching where they could get refugee status, would ultimately decide their fate. An agreement between the U.S. and Canada, called the Safe Third Country Agreement (S.T.C.A.), prohibits most immigrants who pass through the U.S. from making a subsequent claim for asylum at a land-border entry in Canada, and vice versa. The agreement, which was signed in 2002, is designed to prevent “asylum shopping.” Canada deems the U.S. “safe” as long as it maintains a good human-rights record and complies with its obligations under accords stipulating that asylum seekers cannot be returned to countries where they may face persecution. At the Canadian border, where Ahmad’s family was held for twelve hours, an officer told them, “I have to send you back to the U.S.” Ahmad’s wife screamed and collapsed. They spent the night sleeping on the floor of a jail cell in Buffalo.

Following Trump’s executive orders on immigration, in 2017—including a travel ban for several Muslim-majority countries—Canada reviewed its asylum agreement with the U.S. According to the Canadian Press, which obtained documents under Canada’s access-to-information law, Canadian officials concluded that the U.S. “continues to meet the requirements for designation as a safe third country.” Last year, Trump began the practice of separating families at the U.S.-Mexico border, as part of his zero-tolerance policy on illegal immigration. Trudeau was fiercely criticized for his initial silence on the issue, and legal experts again called for the government to suspend the S.T.C.A. A number of critics, including Nadia Abu-Zahra, an associate professor of international development and global studies at the University of Ottawa, noted that Canada signed the agreement two months after the U.S. government deported a Canadian citizen, Maher Arar, to Syria, where he was subsequently tortured. Regarding the U.S. as safe for refugees, she told CTV News, “was incorrect in 2002 and that assumption is now very visibly incorrect with babies being taken away from their mothers and children being held in cages.”

A team of attorneys began the search for a federal-court challenge. In the summer of 2017, Prasanna Balasundaram, an attorney with the University of Toronto’s Downtown Legal Services, got a call from a client he was representing in immigration proceedings. The client’s common-law partner had travelled from El Salvador with her two young daughters and arrived at the Fort Erie–Buffalo border crossing, hoping to join him in Toronto. But when she asked for asylum in Canada, claiming that she feared returning to El Salvador, where she had been raped and extorted by MS-13 gang members, officials told her she was ineligible; because she had first entered the U.S., she was only allowed to seek asylum there. Balasundaram told me, “There was no doubt in my mind that these are people who truly face risk in El Salvador.”

Eventually, the woman and two other parties agreed to be litigants in a legal challenge to the S.T.C.A.; it argues that continuing to designate the U.S. as safe violates Canada’s Charter of Rights and Freedoms. The S.T.C.A. was nearly overturned in 2007, when a federal judge ruled that the agreement was unconstitutional, in part because the U.S. was not a safe third country for asylum seekers. “There are the vagaries of U.S. law which put women, particularly those subject to domestic violence, at real risk of return to their home country,” the judge wrote. An appeals court, however, overturned the decision the following year, and the Supreme Court of Canada declined to hear the case. “That was before the more recent changes in the U.S.,” Janet Dench, the executive director of the Canadian Council for Refugees, one of the applicants in the current case, told me. “There’s even more evidence the U.S. is not safe, and many Canadians are watching in horror with what is happening in the U.S.”

In January, 2018, an investigation in this magazine by Sarah Stillman documented the fates of women who are deported from the U.S. despite expressing fears of returning to their countries of origin. I was a member of Stillman’s research team, which recorded more than sixty cases of people who had been deported to gendered violence and death. The first screening of asylum seekers at the U.S. border often falls to Customs and Border Protection officers, who are required to identify whether such migrants fear return. Stillman wrote, “My team and I heard stories from more than a dozen women who say that they were never asked the required questions, or were ignored, mocked, or even sexually propositioned by U.S. agents after expressing their fears—and then deported to harm.”

In June, 2018, Jeff Sessions, who was then the Attorney General, issued a ruling that blocked asylum for victims of domestic violence. According to attorneys in the U.S. who shared a number of judicial decisions with The New Yorker, immigration judges routinely cited Sessions’s opinion as the reason for denying a claim. In one case, a Salvadoran woman described her husband pouring hot coffee on her, threatening to kill her, and physically abusing her to the point of hospitalization. In another, a Honduran woman faced persistent sexual and physical abuse by her husband, who commandeered her children’s documents and threatened to harm her if she went to the police. In yet another case, a Honduran woman’s domestic partner kept her locked in her home and subjected her to repeated sexual assault.

Sessions’s opinion—which narrowed the definition of persecution to exclude non-governmental groups, including gangs—substantially reduced the rate of Central Americans granted asylum. According to Human Rights First, over the following six months, acceptance rates for people from Honduras, El Salvador, and Guatemala fell from 23.9 per cent to 14.4 per cent. Dench, at the Canadian Council for Refugees, thought that the ruling amounted to a “nail in the coffin” for the S.T.C.A. Karen Musalo, the director of the Center for Gender & Refugee Studies at the University of California’s Hastings College of the Law, is an expert witness for the plaintiffs in the legal challenge to the S.T.C.A. During the government’s cross-examination, she shared her concerns about the “bullying, chilling effect on adjudication” of Sessions’s decision. “You have to look at what effect it has when the Attorney General is issuing a decision like this, and you have immigration judges who are basically the employees of the Attorney General,” she told me. “He’s sending a clear message that these cases are not to be granted.”

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