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Canada’s top court hears that U.S. is unsafe for asylum seekers

Migrants line up at an informal border crossing from Champlain, N.Y. to Saint-Bernard-de-Lacolle, Quebec, on Jan. 12. When they arrive, they're arrested by the Royal Canadian Mounted Police and then allowed to claim asylum. (Wilson Ring/AP)

TORONTO — Advocates told Canada’s top court on Thursday that a nearly 20-year-old deal under which Canada and the United States share responsibility for migrants in need of protection should be struck down because the United States is not a safe destination for asylum seekers.

At issue in the hearing, which was being closely watched in Ottawa and Washington, was the constitutionality of the Safe Third Country Agreement, the 2004 pact between the two countries. Under the deal, asylum seekers who enter Canada at official land border crossings are sent back to the United States — and vice versa. The premise is that both nations meet their obligations under international refugee law and are safe for those seeking refuge, so claimants must request protection in the country where they first arrive.

The appellants included several refugee advocacy groups; a Salvadoran woman and her daughters who fled gender-based persecution and gang violence; a family from Syria who sought asylum in Canada after President Donald Trump issued an executive order barring entry to people from seven majority-Muslim countries; and a Muslim woman from Ethiopia who feared her Oromo ethnicity made her a target for persecution.

They said they are not opposed to “safe third country” agreements in theory but argued that this one violates the right of “life, liberty and security of the person” guaranteed by Canada’s constitution because it subjects asylum seekers who are bounced back to the United States to possible detention on the U.S. side and removal to the countries and persecution they sought to flee.

That, they said, puts both countries at risk of violating international conventions on refugees that commit signatories to the principle of non-refoulement — refraining from sending refugees and asylum seekers back to countries where they could face the very persecution or torture they sought to flee.

“The underlying issue is whether or not the obligation to provide effective protection and to ensure effective protection is being respected by the country to which Canada is transferring refugee claimants,” Andrew J. Brouwer, a lawyer for the appellants, told the court. “Our submission on the evidence is that it’s not.”

Canadian court says sending asylum seekers back to U.S. violates their rights

Lawyers representing Canada’s ministers of immigration and public safety countered that the agreement complies with the country’s constitution and features adequate “safety valves” and “different avenues of relief in exceptional cases.”

“We start from the proposition that the general return to the United States is safe,” Marianne Zoric, a government lawyer, told the court. “The necessary elements of what is required for a safe third country are met in terms of international law.”

The government noted that two of the families were granted a judicial stay from a Canadian court after their lawyers launched a constitutional challenge of the agreement, which prevented them from being turned back to the United States while their case was being heard.

“How can we possibly say that these safety valves are illusory if there they are?” Zoric asked.

Lawyers for the asylum seekers argued that these cases were “extraordinary” because the families had contacted Canadian lawyers before they arrived at the border, allowing them to bring a court motion.

“They had counsel, and the vast, vast, vast, vast majority of claimants who show up at the border don’t,” Jared Will, one of their lawyers, told the court. “There is in 99.999 percent of cases no opportunity to seek a judicial stay.”

Canada is turning asylum seekers away at the border. In the U.S., they face deportation.

In a 2020 decision, a Canadian federal court in Ottawa said that while it was not the “role of the Court to pass judgment on the U.S. asylum system,” the Safe Third Country Agreement violated the constitutional right to life, liberty and security of the person.

“The evidence establishes that … applying” the agreement “will provoke certain, and known, reactions by U.S. officials,” Justice Ann Marie McDonald wrote. “Canada cannot turn a blind eye to the consequences.”

A federal appeals court last year overturned the lower court’s decision — in part, it said, because the evidentiary record on key issues was “thin” and the “alleged constitutional defect … stems from how administrators and officials are operating the legislative scheme, not the legislative scheme itself.”

The Safe Third Country Agreement has long drawn criticism from refugee advocates and human rights groups. In 2007, they successfully petitioned a court to declare the United States unsafe for refugees, but that was also overturned on appeal.

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The deal has drawn broader attention here in recent years because it has a loophole. While asylum seekers who enter the country at official land border crossings are sent back to the United States, those who make unauthorized entries elsewhere along the 5,500-mile border may stay and file their claims.

Since 2017, more than 67,800 asylum seekers have entered Canada at such crossings and filed claims for protection. Around 28,300 claims have been accepted; around 19,600 have been rejected.

The number of asylum seekers crossing into Canada at unofficial points of entry rose sharply under Trump, who sought to limit illegal immigration, legal immigration and asylum.

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Such crossings have not abated under President Biden. The Royal Canadian Mounted Police has “intercepted” more than 23,000 asylum seekers at unofficial border crossings during the first eight months of this year — the most since Canada began tracking the number in 2017.

Prime Minister Justin Trudeau’s government has pressed U.S. officials to extend the Safe Third Country Agreement to cover the entire U.S.-Canada border, not just official crossings. Advocates argue that that would push migrants to pursue more dangerous routes to avoid authorities.

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The Department of Homeland Security did not respond to a request for comment.

The Canadian ministers of immigration and public safety, in a submission to the court, asked that any declaration that the agreement was invalid be suspended for 12 months so that the government could respond.

“It is vital during that time to preserve certainty and order at Canada’s land border,” the ministers wrote. “There may be a range of remedies available to the government to respond to the declaration and there are significant competing and complex policy matters including foreign policy considerations that must be accommodated.”