Canada's Safe 3rd Country Agreement With The U.S. Draws Criticism

Originally published on August 15, 2019 10:12 am

Updated on Aug. 13 at 9:30 a.m. ET

Sitting relaxed at the kitchen table of her new home in a comfortable Toronto suburb, Kinda Bazerbashi recalls how differently she felt when her family lived in Houston.

Originally from Syria, she had lived in the United Arab Emirates, then arrived in the United States with her family on temporary visas and applied for asylum in 2012. Through a series of rejections and appeals, she says, they lived their lives in a legal limbo that made it hard to work, plan or travel to see scattered relatives.

"You are just like in jail, in a nice life," she says. "There are cars. There is supermarket, but you feel, inside, you are in jail."

By the time President Trump was elected, only a temporary protected status at the discretion of the White House kept her family from being deported back to Syria. Concerned about the president's positions on immigration, she and her husband, Anas Almoustafa, looked to an alternative.

"From the TV," says Almoustafa, "they [were] saying a lot of immigrants, they go to Canada."

In March 2017, the family did what they had seen on TV and what more than 46,000 people have done since the 2016 election. They walked across the border from the U.S. to Canada, away from official entry points, and applied for asylum.

"People are crossing that way because of the safe third country agreement," says Maureen Silcoff, president of the Canadian Association of Refugee Lawyers.

Signed in 2002, the agreement operates from the assumption that both the U.S. and Canada offer protections, so people fleeing their homes should apply for asylum in either country they arrive in first.

That kind of deal has gained renewed attention as the Trump administration presses Mexico and Guatemala to take in asylum-seekers traveling through those countries to the U.S. As America's policies push more migrants to head across its northern border, Canadians and rights groups have challenged the agreement with the U.S.

Under the accord, people leaving the U.S. cannot apply for asylum in Canada at an official crossing point, or vice versa. Except for a few limited cases, such as if they have close family in Canada, they will be turned back to the U.S.

However, what some call a "loophole" in the agreement allows people to apply for asylum in Canada if they can arrive in the country.

Anas Almoustafa says he and his family got the idea to travel to Canada from the U.S., where they were in legal limbo, from TV.
Emma Jacobs / NPR

"People feel hopeless about their chances of receiving protection in the United States," Silcoff says. "That essentially drives them to cross between ports of entry."

Most have traversed one country road on the border of upstate New York and the province of Quebec. Royal Canadian Mounted Police wait on the other side of this unofficial path to apprehend them.

The total number of migrant interceptions since 2016 still pales in comparison to 100,000 on the U.S.-Mexico border this March alone. Numbers have also trended downward this year over last. But Canadian pollster Shachi Kurl of the Angus Reid Institute says the border situation took on an outsize political importance because Canadians were unaccustomed to these types of arrivals.

"Just literally walking across an undefended border was starting to create a deep sense of unease and concern not just in right-wing voters, but it was really an issue that crossed the political spectrum," she says.

Canada's opposition Conservative Party has picked up this theme in its campaign to unseat Prime Minister Justin Trudeau's Liberal government in federal elections this fall. In a speech in May, Conservative leader Andrew Scheer called the numbers of irregular crossings "almost hard to believe," protesting that some migrants are able to "exploit loopholes and skip the line."

Trudeau's government has made a number of changes in the last two years to try to reduce the number of arrivals. The Canadian government sent representatives abroad to discourage people considering traveling to the border and to temper perceptions of the welcome they would receive.

Trudeau also created a new Cabinet-level border security minister, a position filled by former Toronto police chief Bill Blair. Earlier this year, Blair met with then-U.S. Homeland Security Secretary Kirstjen Nielsen about expanding the safe third country agreement so Canada could turn border-crossers back to the U.S. His office declined an interview with NPR but said the two countries have not begun official negotiations.

However, even as the U.S. pushes for similar agreements with Mexico and Guatemala to give migrants heading for the U.S. border asylum in their countries, groups like Amnesty International Canada are urging Canada to withdraw from its asylum deal.

Arguing that the U.S. does not offer equal protections for immigrants, Amnesty Canada director Alex Neve says Canada should allow people to make asylum claims at all official border crossings.

"At a time when refugees and migrants, a very vulnerable group, face this full-out attack on their rights from the U.S. government, Canada shouldn't be turning its back on them," Neve tells NPR.

Amnesty has joined with other organizations in a lawsuit to overturn the agreement. Hearings will begin in November.

Silcoff, the attorney, pointed out that U.S. policy changes that have, for example, closed eligibility for asylum to victims of domestic violence, whereas she noted, "They have a good chance because of our laws of receiving protection in Canada."

Despite their rejection in the U.S., Baserbashi's family was approved for asylum in Canada last year.

"This is the final step we hope and final move — absolutely it's [the] final move — because we get approved, thanks God!" she says.

Her family would receive a different reception if they arrived today. The Canadian government passed one more measure this summer, tucked into a large budget bill. The provision bars people from applying for asylum in Canada if they applied previously in the United States or a handful of other countries with which Canada shares biometric data.

Those who have applied elsewhere will now enter an alternative administrative process that Silcoff says offers fewer protections.

A spokesperson for Minister Blair's office said in an email to NPR that the change was meant to "deter people from making multiple asylum claims in different countries," but added, "Nobody will be removed without a chance to be heard."

Copyright 2019 NPR. To see more, visit https://www.npr.org.

DAVID GREENE, HOST:

The Trump administration has pushed Mexico and Guatemala to give migrants heading for the U.S. border asylum in their countries. The U.S. has actually had a similar arrangement with its northern neighbor, Canada, since 2002, the Safe Third Country Agreement. But recent U.S. policies have Canadians debating that accord, as Emma Jacobs reports.

EMMA JACOBS, BYLINE: Before coming to Canada, Kinda Bazerbashi's family moved a lot.

UNIDENTIFIED CHILD: That was - wasn't that...

JACOBS: Originally Syrian, they lived in the United Arab Emirates, then the U.S., where they applied for asylum in 2012. They were rejected, appealed, rejected, living in a legal limbo that made it hard to work, travel or plan. Now, sitting relaxed at the kitchen table of her new home in a comfortable Toronto suburb, she recalls how she felt when they lived in Texas.

KINDA BAZERBASHI: You are just like in jail, but in nice life. Like, there is cars. There is supermarket. But you feel inside you are in jail. You are not like normal people.

JACOBS: By the time President Donald Trump was elected, only a temporary protected status at the discretion of the White House kept her family from being deported back to Syria. Trump's statements about immigrants made her and her husband, Anas Almoustafa, look to plan B.

ANAS ALMOUSTAFA: From the TV, they was, like, saying, like, a lot of immigrant, they go to Canada.

JACOBS: In March 2017, the family did what more than 46,000 people have done since the 2016 election. They walked across the border from the U.S. to Canada between official entry points and applied for asylum.

MAUREEN SILCOFF: People are crossing that way because of the Safe Third Country Agreement.

JACOBS: Maureen Silcoff is president of the Canadian Association of Refugee Lawyers. The agreement, based on the idea that both countries offer basically the same protections, says that most people can't come to an official border crossing from the U.S. and apply for asylum in Canada or vice versa. However, the agreement doesn't apply to people who cross between border crossings.

SILCOFF: People feel hopeless about their chances of receiving protection in the United States, so essentially drives them to cross between ports of entry.

JACOBS: Most come to one location between upstate New York and the province of Quebec. The total since 2016 is still very small compared to 100,000 interceptions on the U.S.-Mexico border this March alone. But Canadian pollster Shachi Kurl of the Angus Reid Institute says they took on an outsize political importance because Canadians just weren't used to these types of arrivals.

SHACHI KURL: Just literally walking across an undefended border was starting to create a deep sense of unease and concern not just in right-wing voters, but it was really an issue that crossed the political spectrum.

JACOBS: And it's a concern that the Conservative Party has picked up on in this year's electoral challenge. Conservative leader Andrew Scheer is seeking to oust Prime Minister Justin Trudeau's Liberal government. He's promised to crack down on irregular border crossers.

(SOUNDBITE OF ARCHIVED RECORDING)

ANDREW SCHEER: The numbers are almost hard to believe.

JACOBS: This is Scheer in a speech in May.

(SOUNDBITE OF ARCHIVED RECORDING)

SCHEER: Some are able to jump queues, exploit loopholes and skip the line.

JACOBS: Trudeau's government has made a number of changes in the last two years. The Canadian government sent representatives to meet with immigrants abroad to discourage them from trying irregular crossings. Trudeau also created a new Cabinet position, minister of border security. The border minister met with then-DHS Secretary Kirstjen Nielson about expanding the Safe Third Country Agreement so Canada could turn border crossers back to the U.S. The minister's office declined an interview with NPR but said the countries have not begun official renegotiations.

But groups like Amnesty International Canada are pushing in the opposite direction, arguing that the U.S. isn't safe for immigrants, and Canada should leave that agreement altogether and let people apply at all border crossings. Director Alex Neve.

ALEX NEVE: At a time when refugees and migrants, a very vulnerable group, face this full-out attack on their rights from the U.S. government, Canada shouldn't be turning its back on them.

JACOBS: Amnesty is taking part in a lawsuit to overturn the agreement. Hearings will begin in November. Despite being rejected in the U.S, Kinda Bazerbashi's family was approved for asylum in Canada last year.

BAZERBASHI: This is the final step, we hope, and final move (laughter). Absolutely it's final move because we get approve, and thanks God.

JACOBS: If they arrived in Canada today, things might have gone differently. The government passed one more measure this summer. It bars people from applying for asylum in Canada if they'd applied previously in the United States. A government spokesperson wrote that the amendment was meant to, quote, "deter people from making multiple asylum claims in different countries," but added that, quote, "nobody will be removed without a chance to be heard." For NPR News, I'm Emma Jacobs in Montreal. Transcript provided by NPR, Copyright NPR.