Impact of Irregular Crossing of Canada’s Southern Border
A submission by Jamie Chai Yun Liew to the Standing Committee on Citizenship and Immigration (CIMM)
July 24, 2018
Managing Refugee Claims at the Border
Introduction
My name is Jamie Liew and I a refugee lawyer and an associate professor of law from the University of Ottawa.
Selecting Refugees
I want to first respond to the idea that assessing refugee claims should be done within the framework of a plan and that there is a “process related to the selection of humanitarian immigrants”.
When we are talking about processing refugee claims there are 3 things this committee should keep in mind.
- FIRST, Canada has an international legal obligation not to return a person to risk as it is a signatory to the Refugee Convention and the Convention against Torture. [Article 33(1) of the Refugee Convention and article 3(1) of the Convention against Torture espouse the principle of non-refoulement] Once they have asked for refugee protection, we must assess it properly. A refugee claimant cannot be punished for the way in which they came within our borders.
- SECOND, there are a number of factors driving people to move, including those out of Canada’s control. People have been and are coming regardless of what Canada does to discourage or encourage them to come. The committee should not conflate the refugee protection program with other immigration streams. It is a unique program where people are not necessarily selected and where the requirements to qualify as a refugee are different from the criteria in any other stream. Questions about whether those crossing our borders speak our official languages or what skills they have is irrelevant. What is relevant is whether the person fits the refugee definition.
- Finally, refugees should not be pitted against each other. There is no queue. Sure, Canada can voluntarily select persons overseas to resettle but refugees abroad waiting in refugee camps are no more or less deserving than those refugees that eventually obtain protection by coming through our land borders. While the levels plan can be amended to an estimated number of persons that may be expected to come for budgetary planning, ultimately, we should not be preoccupied with quotas or levels because we have an international obligation to meet.
Safe Third Country Agreement
This committee has also heard that one plan the government should undertake is to close the loophole in the Safe Third Country Agreement. It is my recommendation today, that in managing the border in the words of one Member of Parliament, in “a planned, orderly, and compassionate manner” we should suspend the STCA immediately. There are two reasons why:
- FIRST, the STCA’s original purpose was to reduce the pressures faced by the IRB in terms of the number of claims being made but that it would not adversely affect the situation of asylum seekers. The STCA primarily benefits Canada and the US agreed to it in order to put in place post-9/11 measures on its border. Since its inception, the STCA has not done what it promised which is prevent refugees from coming into Canada.
- SECOND, since 2002, concerns were expressed in the House and Senate about the STCA. Indeed, the Senate, in its 2002 report on the Safe Third Country Regulations to this very same committee highlighted the very risks we see people experiencing today. The Senate then and advocates today have called for a review of this agreement due to these risks. I have reviewed information coming out of the US on the impact of the STCA and I want to highlight a few for you.
- Canada is putting people at risk by turning people away at official ports of entry.
For example, one Rwandan woman went to an official port of entry, was interviewed by several Canadian border officials over the course of five hours. She was shocked that no one asked her why she was claiming asylum. After giving her fingerprints and signing documents she was driven back to the US border where she underwent more interviews, was handcuffed and detained in solitary confinement for 10 days before being released among the general population in the prison. When she was released from detention she came to Canada by making a dangerous journey through an unofficial border crossing. I understand Mr. Seidoo is coming to speak and I think he is the best person to articulate the risks of crossing our border irregularly.
- Canada is violating its international obligation to properly assess refugee claims by turning a blind eye to the improper treatment of refugee claimants in the US including: the detention of people, the use of an expedited process and denying claims based on gender-based persecution.
Detention and expedited processing – American attorneys attest that the US government is apprehending people traveling on public buses and trains to prosecute them on criminal charges of illegal entry regardless of whether an asylum claim has been made. Persons may be given a credible fear or reasonable fear interview and if they do not pass, they may be removed from the US. Attorneys tell us these are cursory interviews where persons can be denied on the spot without an opportunity to obtain a lawyer or develop and present their claims for protection and can be deported quickly thereafter.
American Attorneys also state that immigration detainees are being held in criminal facilities and are subject to solitary confinement. There is insufficient medical care in detention and little access to interpretation or legal services. A significant number of immigration detainees are not eligible for bond. Children and entire families are being detained. Attorneys have seen their clients experience PTSD and suicidal ideation as a result of prolonged detention.
Gender-Related Refugee Claims – Attorney General Jeff Sessions issued a precedential decision which effectively eliminates a woman’s ability to obtain refugee protection based on domestic violence or other forms of gender-related persecution. [Harvard professor Debra Anker has stated the US interprets and applies the refugee definition in numerous ways that disadvantage women making claims for asylum based on domestic violence and gender-based persecution.]
This is all too real for Ms. L from Honduras, for example. She was kidnapped as a teenager, held in captivity and raped and beaten for months, including attacks with a machete. Thereafter for more than 10 years Ms. L was stalked and threatened. Hit men were hired to kill her domestic partner. Ms. L has had to move to different parts of Honduras and eventually fled to Mexico but was deported back to Honduras. Ms L’s abuser moved back in with her and continued his brutal abuse. She fled for the US where she was detained. Even though an immigration court found Ms. L credible, refugee protection was denied despite evidence of gender-based violence and the Honduran government’s unwillingness to protect her.
[Another example is Magdalena and her six-year old daughter Maria who fled Guatemala to escape abuse by her husband. On arrival in the US, Magdalena was separated from her daughter and criminally prosecuted for illegal entry. Maria was taken to a facility for unaccompanied minors. After five months in detention Magdalena was deported back to Guatemala where she is hiding from her abuser. Maria has since been released to a family member and is pursuing a refugee claim.]
Conclusion
I want to close by saying the government should be interested in managing the border in an orderly and compassionate way and there are three steps to this. First, suspend the STCA. Allow people to present themselves in a regular fashion at official border crossings not make-shift ones like at Roxham Road. Second, give each person coming to our border a fair opportunity to present their claim at the IRB because we can no longer be assured people are getting a chance to so in the United States. Finally, fund the IRB appropriately to hear their cases in an efficient manner. I am open to questions to my remarks today. I have included a copy of: Canadian Council for Refugees, Why the US is not safe for refugees: challenging the Safe Third Country Agreement (which can be found here: http://ccrweb.ca/en/why-US-not-safe-challenging-STCA).
thechaiyun 