Is Canada Violating Its Constitution by Sending Refugees Back to the United States?

A federal court case could stop Ottawa from treating the United States as a safe third country due to the Trump administration’s harsh policies toward asylum-seekers.

A man faces a member of the Canadian police as he carries baggage as he crosses the U.S.-Canada border on Feb. 26, 2017, in  Champlain, New York.
A man faces a member of the Canadian police as he carries baggage as he crosses the U.S.-Canada border on Feb. 26, 2017, in Champlain, New York. DON EMMERT/AFP via Getty Images

MONTREAL—Murder, rape, extortion, and threats of violence: The affidavit presented to the Federal Court of Canada read like a list of horrors, detailing the circumstances that forced a Salvadoran woman and two of her children to flee their home.

“They said they were going to kill me and my daughters,” the woman, identified only as ABC, said in the 14-page document, about an incident involving local gang members in 2016. “I decided I could not keep living this way, having constantly paid these men money for years, and having my life threatened constantly. I decided to leave my home.”

After traveling through Mexico and into the United States, the woman’s journey to find protection brought her to Canada, where her husband had sought refuge a few years earlier. But when she got to the border in January 2017, Canadian officials turned her away, pointing to a little-known bilateral accord known as the Safe Third Country Agreement (STCA).

The idea underpinning the deal is that each country has an asylum system that meets international standards, and therefore both Canada and the United States can be deemed safe countries for refugees.

After consulting with lawyers, she went back to the border months later to file another application for refugee protection in Canada. But this time, she also would challenge the constitutionality of the deal itself. “Despite my great fear of being returned to the U.S., I saw no other option,” she said in her affidavit.

Enacted in 2004, the STCA makes it impossible for most refugee claimants, barring certain exceptions, to make an application for protection in Canada at an official border crossing if they first arrived in the United States and vice versa. The idea underpinning the deal is that each country has an asylum system that meets international standards, and therefore both Canada and the United States can be deemed safe countries for refugees.

But refugee advocates in Canada have raised concerns for years that Washington is skirting its responsibilities, and they have repeatedly called on Ottawa to suspend the agreement. The Salvadoran woman’s lawsuit, which was heard in Toronto in November, is the latest attempt to have the bilateral accord deemed unlawful.

“Our argument is that by sending the people back to the U.S., we are violating their rights to particularly liberty and security of the person,” said Janet Dench, the executive director of the Canadian Council for Refugees, an advocacy group that is supporting the woman in her case alongside Amnesty International and the Canadian Council of Churches.

The risks asylum-seekers face in the United States have been widely documented, including prolonged detention, family separation, and forced returns to the countries from which they fled. Amnesty International last year said the Trump administration’s policies had “caused catastrophic irreparable harm to thousands of people.”

“With the risks that the U.S. will not protect people and will send them back to face persecution in their country of origin, then Canada is also complicit in that,” Dench said.

The Canadian government says checks and balances are in place under the STCA to make sure refugee claimants do not face a risk of refoulement—the forced return to a country where they could face persecution—and that it regularly monitors whether the U.S. government is meeting its human rights obligations. The United States is a signatory to the Convention Against Torture and the Refugee Convention, and it remains safe, Ottawa argues.

“Claimants are returned to a highly developed asylum system that grants protection to large numbers of persons every year,” government lawyers said in a submission to the Federal Court.

But Maureen Silcoff, the president of the Canadian Association of Refugee Lawyers, a national legal advocacy group, said the legal case rests on “thousands of pages” of evidence demonstrating that the United States is not safe for refugees.

“Given what we know is going on in the United States … how can it be said that it’s reasonable to continue this agreement?” she told Foreign Policy, pointing to a key piece of evidence in the case: severe restrictions on getting asylum in the United States on the basis of domestic or gang violence.

Generally, individuals applying for refugee protection must prove they face a reasonable fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group.

In June 2018, then-U.S. Attorney General Jeff Sessions intervened in an immigration case and issued a decision stating that asylum should not be granted on the basis of domestic or gang violence.

But in June 2018, then-U.S. Attorney General Jeff Sessions intervened in an immigration case and issued a decision stating that asylum should not be granted on the basis of domestic or gang violence, two types of persecution that can fall under the “social group” category but which Sessions dubbed “private violence.” Criminal gangs are pervasive in El Salvador, and gang violence killed nearly 20,000 people there between 2014 and 2017 and pushed thousands of families to flee their homes. Some Salvadoran gangs also operate inside the United States, such as the infamous Mara Salvatrucha (MS-13) and its rival, the 18th Street Gang (Barrio 18).

“The situation for gender and fear of gang cases was difficult in U.S. law even before then,” said Karen Musalo, the director of the Center for Gender and Refugee Studies at the University of California, Hastings College of the Law and an expert witness in the Canadian case. “Sessions’s decision just made it far worse.”

The United States also bars people from being able to apply for asylum more than a year after they first arrive in U.S. territory, a policy that Musalo said also disproportionately affects women. “Many of the women asylum-seekers have suffered extremely traumatizing and also very humiliating forms of persecution, which makes it exceedingly difficult for them to come forward and seek asylum soon upon arriving,” she said.

Furthermore, the Trump administration passed a decree that bars asylum-seekers from making a claim in the United States if they transited through a third country and didn’t first apply for asylum there, and most recently it signed deals with Guatemala, Honduras, and El Salvador, establishing the Central American nations as “safe third countries” to which the United States could return asylum-seekers.

Musalo said returning people to Central American countries, which are among some of the most dangerous places in the world, is “an obscenity.”

The federal case in Canada rests on the idea that by returning asylum-seekers to the United States, Canada is violating two sections of the country’s own Charter of Rights and Freedoms, a series of rights and protections enshrined in the Canadian Constitution.

Lawyers for the Salvadoran woman argue that Canada is breaching Section 7 (the right to life, liberty, and security) and Section 15 (the right to equality) of the charter when it sends asylum-seekers back to mistreatment in the United States and risk of return to their countries of origin. The groups involved in the case are also arguing that Ottawa has failed to monitor Washington’s human rights record, thus breaching the deal itself.

This isn’t the first time a Canadian court has been tasked with deciding whether the STCA is lawful. In 2007, the Federal Court of Canada ruled that the U.S. government had not met its human rights obligations and that Canada had not properly reviewed that rights record. It said the deal violated the Canadian human rights charter and that it should be quashed. But the Federal Court of Appeal later overturned the decision for technical reasons. (This court hears appeals of rulings handed out in the Federal Court, and it is considered the highest court for 95 percent of all cases, sitting just below the Supreme Court of Canada.)

The current legal challenge includes the claimant’s testimony—the plaintiff in the previous case, known only as John Doe, was never actually turned away at the border—and the situation for refugee applicants in the United States has dramatically worsened under President Donald Trump, Dench said.

Indeed, many people on both sides of the border say the asylum system in the United States has reached a crisis point. “The administration is making systematic efforts to end asylum in the United States,” said Elora Mukherjee, the director of Columbia Law School’s Immigrants’ Rights Clinic.

She said those efforts include the detention and separation of families on the U.S.-Mexican border, a “Remain in Mexico” policy that forces asylum-seekers to wait in Mexican border towns while their U.S. asylum claims are decided, and a dramatic drop in the number of claimants who pass their “credible fear” interviews, a critical step that safeguards asylum-seekers against immediate removal.

Mukherjee pointed to data from the Dilley Pro-Bono Project, a legal aid group that represents detainees at the South Texas Family Residential Center, the largest immigration detention facility in the United States, which is known as Dilley. “Historically, moms and kids detained at Dilley have passed their credible fear interviews at a rate of about 97 percent. But that has plummeted … and the credible fear interview passage rates are now less than 10 percent,” she said. “It is no longer a fair and functioning system.”

Petra Molnar, the acting clinic director of the international human rights program at the University of Toronto, added that keeping the STCA in place has highlighted just how many people cannot “really participate meaningfully” in both the U.S. and Canadian systems. “One of the ideas in refugee law is that if a state is unable or unwilling to protect you, then you can go and claim asylum somewhere else,” Molnar said.

She added that the Federal Court of Canada recognized in 2007 that the STCA was “an inappropriate and unconstitutional agreement” and it’s “now particularly salient to have this conversation” again in light of the Trump administration’s migration policies.

“It’s one thing to say that a country is safe, but then if your own refugee determination processes are falling short of international standards—which really is the case in the United States—it’s really inappropriate to say that it’s a safe country for refugees.”

While the U.S.-Canada deal remains on the table, it contains an important loophole that has pushed thousands of people to walk across the 5,500-mile border in search of protection: Most asylum-seekers who enter Canada without going through official border crossings can file a refugee claim once they make that intention known to officials on Canadian soil and stay in Canada until their claim is heard by the immigration and refugee board.

Between February 2017 and September 2019, more than 50,000 people applied for refugee status in Canada after entering the country in that way. Nearly 60 percent of those applications are still pending, while about 20 percent have been accepted and another 20 percent rejected.

Sharry Aiken, an associate professor in Queen’s University’s law department in Kingston, Ontario, and expert on Canadian immigration and refugee law, said that if Canada suspends the agreement, the number of claims would remain about the same. That is “well within Canada’s capacity to deal with,” she said.

But Canada has actively sought to dissuade people from entering the country irregularly, sending members of Parliament to meet with would-be asylum-seekers to urge them not to make the journey north. The right-wing Conservative Party also put pressure on Prime Minister Justin Trudeau to “close the loophole” and extend the agreement to the entire U.S.-Canada border, a move that would effectively slam the door on any and all asylum-seekers trying to enter Canada from the United States.

Trudeau’s Liberal Party, which secured a minority government in October elections, said it plans to work with the U.S. government “to modernize” the STCA. But it’s unclear what that means in practice, said Justin Mohammed, a human rights law and policy campaigner at Amnesty International Canada who attended the Federal Court hearings in November.

While Mohammed said Canada has a limited ability to get the United States to abide by human rights standards, the government must apply Canadian law and abide by the rules of the deal rather than assume that the U.S. government is applying refugee law fairly.

“There has been such an erosion in the refugee protection regime in the United States that Canada is now in the awkward position of effectively having to defend it,” he said. “Because if we cannot justify it, then the reciprocity which underpins the agreement has fallen away.”

That was echoed by Aiken, the Canadian immigration law expert, who said the central argument in the challenge to the STCA isn’t that the United States has to have the same or even similar standards for refugee status determination as Canada but that “it has to meet minimum international legal requirements.”

“It’s a floor, not a ceiling, in other words. And the U.S. has fallen from the floor—it’s in the basement right now,” Aiken said. “When Canada acts to send someone back to treatment that fails to meet the floor, we’re violating our own constitution in doing so.”

Jillian Kestler-D’Amours is a journalist based in Montreal. Twitter: @jkdamours

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