Originally published by The Intercept
RONALD SYLVAIN WAS feeling confident as he approached the U.S.-Canada border crossing in Champlain, New York in a taxi with his wife and their 9-month-old son last July. The 36-year-old Haitian national had been assured that it was best to “do it legally.” After all, they are professionals: Ronald is an economist and his wife Pamela is a nurse. While other refugees opted to roll their suitcases into Canada over a narrow dirt path five miles to the west at Roxham Road, border agents would surely understand Ronald’s asylum request, based on the fact that gangs in Haiti had threatened him.
Instead, an agent directed his family to wait overnight. They slept uncomfortably on hard benches at the Lacolle Inspection Station next to a public restroom. The next morning, they were turned back to the United States. Under the Safe Third Country Agreement, a 2004 treaty between the United States and Canada, most refugees who approach Canada at an official border crossing are rejected, on the grounds that they should have tried for asylum in the United States first.
Two weeks later, Ronald and his family decided to try to enter Canada again, this time over Roxham Road. (“Given the current situation in the U.S., we were really afraid to stay there,” Ronald later testified.) The process was smooth, eerily so. Yet migrants who attempt to cross the border at land ports only have one chance to make a refugee claim. Without realizing it, they had already blown their shot. Ronald and Pamela are now fighting a deportation order from Canada.
The theory behind the Safe Third Country Agreement, or STCA, is that the United States and Canada are interchangeable options for refugees. Not everyone agrees. Three major organizations fighting for immigrant rights in Canada — the Canadian Council for Refugees, the Canadian Council of Churches, and Amnesty International Canada — filed a challenge in federal court last year to the “safe third country” designation. For the second time in a decade, they’re arguing that the United States is not, in fact, safe.
Janet Dench, executive director of the Canadian Council for Refugees, can quickly tick off conditions in the United States that make the country hostile to refugees. Asylum claimants often don’t have access to counsel and are often kept in detention while their claims are assessed. The Trump administration has launched an aggressive crackdown on asylum-seekers, through policy changes that Amnesty International recently said“appear to be aimed at the full dismantling of the U.S. asylum system.” (Most recently, President Donald Trump has threatened to hold asylum-seekers along the southern border in tent cities.) Whereas in Canada, detention is rare (less than 1 percent of all foreign entries annually, according to government data) and many claimants, depending on which province they entered through, can have access to a free lawyer.
This is “a story about whether Canada wants to take responsibility for its human rights obligations,” explained Dench. When asylum claims fail in the United States, she said, “Canada is bearing one part of the responsibility for those people who end up being sent back to their country of origin and persecuted.”
Photos: Christinne Muschi/Reuters
For thousands of refugees, crossing between land ports has proven a viable alternative. According to the United Nations Refugee Agency, 50,469 refugees asked for asylum in Canada last year, a 10-year high and more than twice 2016 levels. About 40 percent of those claimants crossed from the United States on foot between official points of entry, where the STCA doesn’t apply.
The surge has had logistical consequences. Stéphanie Valois, a refugee lawyer of 25 years based in Montreal, told The Intercept that she’s never had a summer quite like 2017. “I felt like a doctor in the emergency room but without the pay,” she said. Unofficial border crossings have slowed this year: There were 15,726 between January and September. Still, on June 25, the city manager of Toronto issued a report stating that the city has “exhausted all facilities, personnel, and financial resources” attempting to shelter refugees who have traveled from Quebec.
But Dench challenges the notion that suspending the STCA would open the floodgates to migration across the U.S. border, which has been increasing since Obama’s second term as the global refugee crisis has intensified. As it stands, she says, the agreement is “not really working anymore as a break from letting people into Canada.” Instead, it is pushing people to unofficial crossings.
Canadian Prime Minister Justin Trudeau has positioned himself as a great defender of refugees, in contrast to Trump. But Canadian academics and immigrant advocates told The Intercept that the STCA has given Conservative politicians in Canada a powerful political tool that Trudeau’s Liberal government has failed to adequately challenge. Both Canadian and international law protects refugees seeking asylum across the Canadian border, but in the last year, the technical term for crossing outside of land ports, “irregular,” is becoming interchangeable with the more loaded “illegal.” Rather than suspend the STCA — and allow asylum-seekers to come through legal ports of entry — Trudeau’s administration is fighting to maintain it. The next hearing in the rights groups’ challenge will take place in May 2019. Meanwhile, Dench says, “the situation in the U.S. has been getting worse.”
“The spectacle of [irregular] border crossings incites people because of this obsession with loss of control,” says Audrey Macklin, chair of human rights law at the University of Toronto. Remove the STCA, she says, and the spectacle would evaporate. “Why not do that?”
IN THE LATE 1990s, Canada hoped to emulate the European Union, where several countries had signed on to the now-defunct Dublin Regulation requiring refugees to apply for asylum in whichever participating country they entered first. The United States dismissed Canada’s request for a similar agreement, though, until September 11, 2001, when border security became a central issue. “The United States demanded and secured a series of border management concessions from Canada,” Macklin explained. “And in exchange for that, Canada said, ‘Now it’s your turn to do something for us.’” The STCA took effect in December 2004.
Efrat Arbel, an assistant law professor at the University of British Columbia, has been studying the impacts of the STCA since 2005. She says she’s been most troubled to see refugee flows shifting into more treacherous territory. In the eight years before the STCA took effect, between 6,000 and 14,000 refugee claims were being made annually at land ports on the border. The average number between 2005 and 2012 was just 5,600. “The Safe Third blocks the safest, most organized mode through which asylum-seekers can enter,” Arbel said.
“The Safe Third blocks the safest, most organized mode through which asylum-seekers can enter.”
Roxham Road is by far the most popular alternative. Wendy Ayotte, 66, is part of a Canadian neighborhood group called Bridges Not Borders that has been crossing into the United States on Sundays since November to offer encouragement to refugees. She said that Roxham Road has become more orderly lately, and that the Royal Canadian Mounted Police had responded to her group’s concerns about officers they’d observed telling refugees to turn back or go to an official border crossing.
Still, smaller numbers of refugees continue to cross at less organized irregular points. This year to date, more than 700 people have crossed at Manitoba and in British Columbia, representing about 4 percent of the total crossers. There were multiple reports of frostbite at Manitoba during the winter of 2016 and last May, the body of 57-year-old Mavis Otuteye, a Ghanaian woman, was found just south of the Canadian border at Manitoba in Noyes, Minnesota.
Photos: Scott Heins
Refugees like the Sylvains, who choose to cross at an official point of entry, are taking a different gamble. The number of refugee claimants turned back annually from the Canadian border because they do not qualify for an exception to the STCA more than doubled in 2017 over the previous year, to 1,949 claimants. In all of 2015, before Donald Trump’s election, 418 people were turned back.
It is Canada Border Services Agency policy to notify U.S. Customs and Border Protection whenever a claimant is turned back from the border, which can result in detention for refugees without valid U.S. visas. Immigration detention centers in the U.S. are rife with reports of abuses, including sexual assault, inadequate food, lack of medical care, and racism. The Intercept spoke with a 22-year-old Haitian woman who was arrested with an expired visa before she made it to Canada last year. During her 100-day stint in Clinton County Jail in New York, she said, “They treated us like criminals. … The food was bad. I didn’t eat it. It’s cold, no heat, and they didn’t give us jackets.” (The Intercept is withholding her name because her U.S. immigration case is pending.)
Nadege Jean-Mardy volunteered last year as a translator for refugee claimants arrested by CBP and detained in Clinton County Jail. “People are definitely confused by the law,” she told The Intercept. “In their head, it doesn’t make sense because … the way they see it: ‘OK, I’m going to ask for asylum, but I’m going to do it the right way.’”
Inside the jail, she recalled, refugees “were sleeping on benches and they were treated as prisoners, [when] their only fault was asking for help.”
IN 2007, CANADIAN Federal Court Judge Michael Phelan upheld the first legal challenge to the STCA. “The U.S. does not meet the Refugee Convention requirements nor the Convention Against Torture,” Phelan ruled. But a Canadian appeals court granted a stay of Phelan’s order one day before it was set to go into effect and ultimately overturned his ruling — not on the grounds that the United States was safe, but that this was not the court’s decision to make.
Advocates’ current legal strategy is similar to the first. They’re highlighting the story of a woman who fled gang violence in El Salvador with her two young daughters: first to Texas in November 2016 and then to the official Canadian border crossing at Fort Erie, where she was denied asylum because of the STCA. They’ve also collected testimony from a man who came to the United States on a student visa last year and was placed in immigration detention in March after attempting to join his aunt in Canada, and another man who spent 10 days in solitary confinement after Canadian officials turned him away.
Meanwhile, a fresh wave of anger is cresting among refugee advocates and attorneys in Canada. Sean Rehaag, a law professor at York University, described the STCA as “dead” in the face of the Trump administration’s particular hostility to asylum-seekers. Canada’s minority New Democratic Party called for its suspension last year, wondering in a statement, “What will it take for the Liberals to finally take this situation seriously and act?” In addition to Trump’s “zero tolerance” policy that has separated thousands of children from their parents along the U.S.-Mexico border, U.S. Attorney General Jeff Sessions issued new guidelines in June ordering judges to block asylum claims for victims of domestic abuse and gang violence. The Trump administration has also been trying to arrange a Safe Third Country Agreement with Mexico, which would allow the United States to turn back refugees along the southern border (rights groups have loudly protested the idea.)
Lobat Sadrehashemi, president of the Canadian Association of Refugee Lawyers, called her country’s ongoing commitment to the STCA “appalling” in a statement to The Intercept. “We are watching the images of children being ripped apart from their parents in horror,” she said. “Refugee law has been turned on its head in the United States.”
AT THE SAME time, conservative anxiety about irregular border crossings in Canada continues to escalate. Alberta Conservative Member of Parliament Michelle Rempel proposed this spring to turn the entire length of the Canadian border into a formal point of entry – which would mean that anyone could be turned back under STCA. Parti Québécois leader Jean-François Lisée called for a fence to be built at Roxham Road, quipping that “the Mexicans” should pay for it. And as news of Trump’s harsh southern border policies spread in June, Conservative leader Andrew Scheer made a publicity trip to Roxham Road, which he describedas the “epicenter of the crisis at our borders.”
During an Immigration Committee hearing in March, Conservative members of parliament pressed Minister of Immigration, Refugees and Citizenship Ahmed Hussen to use “illegal” to describe refugees crossing the border irregularly. “I have used the word ‘illegal’ and I have used the word ‘irregular,’ and I think both are accurate,” Hussen acquiesced.
Photos: Scott Heins
More recently, the Trudeau administration has criticized anti-refugee rhetoric. For example, when Ontario Premier Doug Ford called on Liberalsto address the “mess” of “illegal border crossers” in July, Hussen, a refugee himself, bemoaned that “Ontario sadly has chosen the language of fear. They’ve chosen to intentionally use language that could potentially criminalize asylum-seekers in the minds of Canadians.” That month, his department quietly replaced the word “illegal” with “irregular” on its website.
But Hussen also maintains that the United States is safe for refugees. His office declined to comment to The Intercept on the STCA legal challenge, on the grounds that it is an open matter before the court. However, spokesperson Mathieu Genest said in a statement that “in general, we can say that Canada has carefully analyzed recent developments in the United States, including the Executive Orders related to immigration and refugee matters, and determined that the United States remains a safe country for asylum claimants to seek protection there.”
In late May, more than 100 members of the Canadian far-right group Storm Alliance, an offshoot of the more openly fascist Soldiers of Odin, drove to the U.S. border at Lacolle. Many of them waved middle fingers and Quebec flags and carried hand-painted signs in French: “No Illegality! Enough!” Attendee Sebastien Cormier, a 38-year-old single father and nursing assistant from Sherbrooke, Quebec, said that he decided to join Storm Alliance because the situation at Roxham Road is “anarchy.”
“The response of the Trudeau government has been pretty horrible. They continue to maintain this fiction that the United States is a safe third country, when people are being thrown out and when Trump is quite actively slandering entire groups of people.”
Storm Alliance has gathered near the Quebec border three times since 2017, and each time, anti-racist activists have organized a counterprotest. It’s a delicate balance, they say, since they don’t want to draw attention to the far right but still want to be sure that refugees aren’t met with intimidation. Messages scrawled in white and pink chalk near temporary refugee processing trailers this spring read “Bienvenue Refugies!”
Speaking to The Intercept at the May border demonstration, anti-fascist activist Jaggi Singh said that the Trudeau administration has failed asylum-seekers.
“[When] you have far-right people and some of the politicians that pander to them talking about shutting down the border, it kind of gives the Trudeaus of the world a pass,” Singh said. “But the response of the Trudeau government has been pretty horrible. They continue to maintain this fiction that the United States is a safe third country, when people are being thrown out and when Trump is quite actively slandering entire groups of people.”
HISTORICALLY, HARD-LINE IMMIGRATION policies have gained traction in Canada when refugees arrive in highly visible ways. For example, in August 2010, 492 Sri Lankan refugees arrived by ship on Vancouver Island off the west coast of Canada. The passengers on the Sun Sea were the second such group in less than a year and were met with public skepticism verging on alarm. At the time, the Conservative government managed to pass legislation imposing mandatory detention and multiyear delays on permanent residency applications for certain refugee claimants.
Now, beyond simply maintaining the STCA, Canada’s Immigration, Refugee and Citizenship office has announced plans to enhance border security. Hussen is in “continuous discussions on improving all aspects of managing the border, including through potential modernization of the STCA,” according to Genest, his spokesperson. This summer Hussen told CBC News that “modernization” of the STCA could entail the use of biometrics, such as fingerprints and photographs, though privacy watchdogs and refugee lawyers told The Intercept that they are awaiting clarity on the new policy.
And in mid-July, Trudeau created a new government office, appointing Liberal Member of Parliament Bill Blair as Canada’s first minister of Border Security and Organized Crime Reduction. In a press release, Trudeau’s office stated that Blair will “ensure Canada’s borders are managed in a way that promotes legitimate travel and trade while keeping Canadians safe.” Blair sent a letter to U.S. Homeland Security Secretary Kirstjen Nielsen in September with “a request to begin negotiations as soon as possible to enhance and modernize the Safe Third Country Agreement to the mutual benefit of both countries,” spokesperson Marie-Emmanuelle Cadieux told The Intercept. (Homeland Security declined to comment.)
Brenda McPhail, director of the Privacy, Surveillance and Technology Project at the Canadian Civil Liberties Association, said she worries that the Liberal government’s talk of biometrics will further enforce the perception of refugees as criminals. “We fingerprint criminals,” she said. “So I think there’s some sort of implicit message to Canadians that if we’re taking fingerprints from people … we’re treating them in a criminal manner.”
She added that it’s “no coincidence” that Blair is a former police chief. “The government seems to want to position the appointment as a way to counter and assuage fears for public safety,” she said. “But it also validates those fears in the process.”
Macklin, the human rights lawyer, said that Trudeau’s government has its priorities wrong. For Canada, she said, “the problem is irregular entry, so the solution has to be preventing irregular entry. No. The problem is that the United States is not a safe country.”