Asylum in Canada Is Not for Everyone (Sorry Aboot That)

by Jason Dzubow

This piece is by our intrepid associate, Ruth Dickey, who is well-known for her love of Canada.

Given the current mess that is the U.S. asylum system, it’s not surprising that many asylum seekers who first land in the United States have been heading North to make their claims in Canada. Perhaps they are lured there by faster asylum processing times and a more generous attitude towards refugees. While it may sound idyllic to roll out of your igloo in the morning, pick up your Tim Horton’s coffee, and commute to work on a polar bear, obtaining asylum in Canada after you’ve been in the United States may not be so easy.

Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.
Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.

The main problem in Canada for asylum seekers who have passed through the United States is something called the Canada-U.S. Safe Third Country Agreement (“STCA”). This treaty requires applicants to make their asylum claims in the first safe country they enter. Thus, if you first enter the United States, you have to make your asylum claim here. If you first enter Canada, you have to make your claim in that country.

The STCA has four exceptions: (1) The applicant has family members with lawful status in Canada; (2) The applicant is a minor travelling without a parent; (3) The applicant has a document that allows him to enter Canada; and (4) The applicant faces the death penalty. More details about these exceptions can be found here.

The most common exception is probably the family member exception; it may also be the exception that creates the most confusion, so let’s take a closer look. Under the STCA, the term “family member” is broadly defined, to include:

  • spouse
  • legal guardian
  • child
  • father and/or mother
  • sister and/or brother
  • grandfather and/or grandmother
  • grandchild
  • uncle and/or aunt
  • nephew and/or niece
  • common-law partner
  • same-sex spouse

You can see that Canada allows people to meet the family-based exception with a wide range of relatives. Cousins are not on the list, but virtually all other categories of relatives are.

In our office, we currently represent several people who left the U.S. to seek asylum in Canada, only to be turned back at the border. One client hired us in 2014, after he attempted to enter Canada from the U.S. He had qualifying Canadian relatives who were naturalized citizens of Canada. However, he had no documentation to prove the relationships, and so Canadian border officials rejected his request for entry and quickly returned him to the United States.

Unlike many people who filed for asylum in 2014, our client was lucky enough to get a prompt interview. However, like many applicants, his decision was delayed. Only recently—a year and a half after his first interview—he was called for a second asylum interview where he was questioned about his trip to Canada. Unfortunately, a well-meaning, but not-so-well-informed relative in Canada tried to help our client while he was in Canadian custody, and made some contradictory statements to Canadian officials. The Asylum Officer had the records from Canada, and asked our client about the relative’s statements. Our client explained the situation as well as he could, and we are still waiting for a final decision.

There are some lessons to be drawn from this client’s ordeal. First, going from the U.S. to Canada can do more harm than good. Even if you don’t have some well-intentioned relative meddling in your case, it takes time for the Asylum Office to get Canadian immigration records and review them. That means more delay (on top of already long delays), and no one wants that. Also, if you already tried to seek asylum in Canada and were rejected, tell your lawyer and try to remember any communication that you or your relatives had with the Canadian authorities—the Asylum Officer will likely have access to your records, so plan accordingly.

Another lesson is that, if you are seeking a family exception–through your uncle, for example–you should bring civil records (and translations) demonstrating that you and your uncle are related. Our client’s experience shows that Canadian border officials will not necessarily wait around for you to collect these documents once you reach Canada. You need to have the documents with you before your trip.

Finally, if you do plan to seek asylum in Canada, and you are in the U.S., you would be wise to consult with a Canadian immigration lawyer before traveling. Maybe you qualify for an exception to the STCA and maybe you don’t. A Canadian lawyer familiar with that country’s immigration laws should be able to advise you before you take on the risk and expense of going to Canada for asylum.

There are certain advantages to asylum in Canada, and some people who pass through the U.S. are eligible to seek refuge in that country. But unless you plan ahead for your trip, you may end up back in the United States and worse off than when you started.

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U.S. Sex Offender Receives Asylum in Canada

by Jason Dzubow

A convicted sex offender who fled the United States to escape her 30-year prison sentence has been granted protected person status in Canada.

Canadian boys celebrated the decision in Ms Harvey's case.
Canadian boys celebrated the decision in Ms Harvey’s case.

In August 2008, Denise Harvey was convicted in a Florida court for having sex with a 16 year-old boy–a friend of her son’s. After refusing a plea deal for 11 years, Ms. Harvey went to trial. She was convicted and sentenced to 30 years in prison. While her appeal was pending, she remained free on $150,000.00 bond. In 2010, when it became clear that the appeal had failed and that she would have to report to prison, Ms. Harvey fled to Canada.

She crossed the border and moved to Saskatchewan with her husband. They settled in a small community outside Saskatoon.

The Law caught up with Ms. Harvey in April 2011, when Canadian authorities arrested her. Later that month, she appeared before an Immigration and Refugee Board (“IRB”) adjudicator and was released on a $5,000.00 bond. Ms. Harvey requested “protected person status” and claimed that the 30-year sentence was cruel and unusual. She noted that her crime–having consensual sex with a 16-year old–was not illegal in Canada.

The IRB agreed that the sentence was cruel and unusual and granted Ms. Harvey protected person status. To obtain protected person status, an applicant must show that returning to the home country would subject the person to torture, cruel and unusual punishment or death. No nexus to a protected ground is required. People who received protected person status are eligible to apply for permanent residency and eventually obtain Canadian citizenship.

The Minister of Citizenship and Immigration, Chris Alexander, appealed the IRB ruling on two occasions, but Ms. Harvey’s protected person status was finally upheld last month. The Minister commented:

I find it mind-boggling that individuals from the United States, which has been designated a safe country, precisely because it respects human rights and does not normally produce refugees, think it is acceptable to file asylum claims in Canada. Lucky for them, they have no understanding of what true persecution is, and what it means to be a genuine refugee.

I am not sure that Ms. Harvey would agree with him. And luckily for her, the Canadian courts did not agree with him either. I suppose this highlights the old trope that no country is safe for everyone all the time (and indeed, even in the United States, Ms. Harvey is not without her supporters. In her home community of Vero Beach, Florida, 2,000 people–more than 10% of the total population–signed a petition requesting that Florida’s governor pardon her).

As for me, I must agree that a 30-year sentence for consensual sex with a 16-year-old boy is a bit over the top. Of course, reasonable people can differ about this, but the Canadians (and who is more reasonable than the Canadians?) have not even criminalized this behavior. Also, there is no indication that the victim suffered particular trauma as a result of the “unlawful sexual activity.” If there was evidence that he had been traumatized by Ms. Harvey’s conduct, then the punishment might be more easily justified.

While I agree with the result, the IRB decision does leave some unanswered questions: Would the decision have been the same if the perpetrator was a man and the victim was a 16-year-old girl? What if the sentence had been less severe? Does Canada plan to offer protected status to every U.S. citizen convicted for a crime that is not punishable in Canada? Does it plan to evaluate each U.S. sentence to determine whether it is “cruel and unusual”? The death penalty has been eliminated in Canada, so if a U.S. citizen facing the death penalty reaches Canada, will he be offered protected status?

The Canadians may have to deal with these issues in future cases, but Ms. Harvey’s case is relatively easy. The sentence is so excessive and the crime so seemingly minor that Ms. Harvey appears deserving of protection. Only time will tell if other convicted criminals will follow Ms. Harvey’s lead. If so, it will be interesting to see how the Canadian authorities respond, and if the U.S. government takes offense.

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Asylum Seekers and the Right to Illegal Entry

by Jason Dzubow

Do people fleeing persecution have a “right” to illegally enter the United States? A new report from Harvard Law School about changes in Canadian asylum policy got me thinking about this question.

The report, Bordering on Failure: Canada-US Border Policy and the Politics of Refugee Exclusion, concludes that recent changes to Canadian refugee and border policy have made it more difficult for legitimate asylum seekers to find refuge in Canada.

Training program for rookie Liaison Officers.
Training program for rookie Liaison Officers.

The recent changes include the Multiple Borders Strategy (“MBS”), whose goal is to “push the border out” and to “intercept improperly documented persons as far away from Canada’s territorial borders as possible.” Canada “enacts measures that deter and deflect the arrival of asylum seekers at… countries of origin, visa screening points, airline check in points, points of initial embarkation, transit areas, points of final embarkation, and points of final arrival.” How do they do this? Canada has 63 liaison officers in 49 “strategic locations around the world.” The officers “train and work with airlines, local immigration authorities, and local law enforcement agencies to identify improperly documents persons, including some asylum seekers, and block them from boarding Canada-bound boats or planes.” The officers have intercepted 73,000 people between 2001 and 2012. Another part of the MBS is to sanction airlines and shipping companies that allow improperly documented people to arrive in Canada. The Canadians have also imposed stricter visa requirements on people from refugee source countries when refugee arrivals from those countries increase. In short, Canada is doing more to block people from illegally entering the country. So what’s wrong with that?

The Harvard report raises a few points. For one, some of those people blocked from arriving in Canada are refugees (though we don’t know how many). The liaison officers and the carriers do not consider whether a person qualifies for asylum; they block anyone with improper documentation. Another problem is that by tightening security, some asylum seekers will resort to other means of gaining entry into Canada–human smuggling, for example. This puts the asylum seekers at risk of harm. The report concludes that by “closing its borders to asylum seekers, Canada is setting a poor example for other nations, and contributing to the deterioration of refugee protection around the world.”

Aside from criticizing the (probable) negative impact of the MBS on asylum seekers, Harvard offers little in the way of solutions. Should Canada loosen its entry requirements? Should liaison officers allow people with fraudulent documents to go to Canada if those people express a fear of persecution? Should Canada get rid of the liaison officers so it is easier to enter Canada improperly? Should it eliminate carrier fines, so that airlines will be encouraged to allow anyone to fly into the country, even if they do not have permission to enter?

The basic problem, it seems to me, is that refugees who are rich enough to qualify for a visa or to hire a competent smuggler, will likely get in. Ditto for those clever enough to obtain fraudulent travel documents. Poor people, less educated people, people who are not resourceful enough, will not get in. Tightening or loosening the border (or even “pushing out” the border) will, as the Harvard report points out, exclude people in “arbitrary and unprincipled ways,” but this impact is tiny compared to the basic–and very arbitrary–distinction between the rich, the educated, and the lucky, who will probably get in, and the poor, the uneducated, and the unlucky, who will probably be excluded. Thus, even if Canada had not implemented any of the new restrictive changes, the asylum seekers who manage to reach Canada are able to get there because of factors (such as wealth) that are completely unrelated to the merits of their asylum claims. Given that the ability of potential asylum seekers to enter Canada is completely arbitrary anyway, why should it matter if Canada imposes another layer of arbitrariness on those seeking admission? In other words, why should it matter if an arbitrary portion of an arbitrary group is blocked from seeking asylum?

Or, to return to our initial question in a more specific way: Do those asylum seekers lucky enough to have the ability to reach a safe country have a “right” to travel to that country to seek asylum? If you accept the basic premise of sovereignty of nations (and there are very good reasons not to), it is difficult to answer that question in the affirmative. But to answer that question in the negative would invalidate much of international law and practice related to protecting refugees.

Perhaps the key to resolving this dilemma is to recognize that most countries–including Canada and the United States–have given up some of their sovereignty when they voluntarily entered into treaties protecting refugees. Nevertheless, the Harvard report highlights an odd reality: People who are smart enough, rich enough or sneaky enough to evade border security and gain entry into a safe country have a right to seek asylum in that country. But those who are unable to reach a safe country–even if the reason for their failure is that the safe country managed to prevent their entry–do not have a right to seek asylum in that country.

So I guess the answer to the initial question is a qualified yes (or perhaps a qualified no, if you are a glass-is-half-empty sort of person): Asylum seekers have a right to illegally enter the United States, but only if they manage to get in. Or, to paraphrase Robert Anton Wilson, “rights” are what you can get away with.

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New Canadian Law Attempts to Block Bogus Refugees

by Jason Dzubow

Canada is preparing to implement the Protecting Canada’s Immigration System Act later this year.  The law is ostensibly designed to protect Canada’s refugee law by weeding out false asylum claimants.  The provisions of the new law include the following:

– The immigration minister would have the power to designate which countries are safe without a committee including human rights experts.

– Rejected refugee claimants from “safe” countries would no longer be able to appeal the decision to the Immigration and Refugee Board (the administrative body that reviews asylum claims).

– Claimants from countries on the safe country list would have limited appeals rights and limited ability to apply for compassionate or humanitarian relief.

The law seems primarily targeted at the Roma (a/k/a Gypsies) who have been coming to Canada from Hungary in large numbers and requesting asylum.  According to the Canadian Immigration Minister, “almost 95 percent of Hungarian asylum claims [are] abandoned, withdrawn or rejected.”  The Minister states that “Countries whose nationals have an acceptance rate of 25% or less, or where 60% or more of claimants from a country have abandoned or withdrawn their claims … would be subject to designation” as a safe country, thus making it more difficult for them to successfully claim asylum.

Under the new Canadian law, Mexico is “safe.”

My first question about this new law is whether it is necessary.  Under the current system, people who can return safely will presumably have their cases denied anyway.  The new law is designed to streamline the system to allow people from certain countries to be deported more quickly.  Also, if people from “safe” countries know that their claims will likely be denied, they may decide not to seek asylum in Canada in the first place.  Proponents of the law claim that all this will save government resources.  But I wonder how many people will actually be dissuaded from coming and–for those who do seek asylum–how much money the government will actually save under the new, streamlined system.  Currently, 95% of asylum claimants from Hungary are unsuccessful, yet Hungarians keep coming to Canada.  If the current (very high) denial rate does not dissuade people from coming, how will the new law?  Further, those who seek asylum from “safe” countries are still entitled to certain procedures and benefits.  It is unclear how much the Canadian government will save by marginally reducing the protections available to such asylum seekers.

Assuming the law is needed, how effective will it be?  The idea of determining in advance whether a country is safe seems antithetical to international refugee law.  Someone once said that no country is safe for everyone all the time.  If 95% of Roma claims are denied, what type of harm do the remaining 5% face?  Also, just because a country has a low overall denial rate for asylum claims does not mean that it is safe.  To cite an example from our side of the border, the denial rate for Mexicans is quite high (about 98%), but certain people from Mexico–journalists and human rights activists–face real danger there.  Another example–while the overall asylum grant rate for Jamaicans is low, the grant for Jamaicans claiming asylum based on sexual orientation is relatively high.  My point is that designating a country “safe” just because the overall grant rate is low will likely result in legitimate asylum seekers being rejected and returned to face persecution. 

Despite these (and other) doubts, the Protecting Canada’s Immigration System Act will go into effect shortly.  We will then start to get a clearer idea of whether the law will save resources and how it will affect asylum seekers.

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Most Canadian Refugee Judges Fail Re-Appointment Test

by Jason Dzubow

As Canada implements changes to its asylum program under the Balanced Refugee Reform Act, its refugee judges are required to apply for new positions that will commence in June 2012.  The refugee judges are currently political appointees.  To qualify for the new positions, applicants must take a multiple choice and written exam, and pass an interview.

Canadian judges spent too much time partying in high school.

According to the Canadian Star, out of 63 refugee judges, “only 10 have passed the exams and screening process, while nine are awaiting final interviews.”  Of the remaining 44 judges, “[o]ne was screened out immediately, 24 failed the multiple-choice and written exams, six did not show for the exams, seven were eliminated at interviews, and six withdrew from the process.”  Forgetting judges that decided not to re-apply, this means that over 50% of politically appointed refugee judges in Canada failed the exams or the interview. 

The Star notes that the “refugee judges’ poor performance has raised concerns about the quality of decisions they have made.”  No kidding.

So what are the implications for us, down here on the civilized side of the border?

First, it is pretty clear that we have problems of our own.  The important article Refugee Roulette: Disparities in Asylum Adjudication makes clear that decisions by Immigration Judges (and other adjudicators) often depend on who is making the decision rather than the facts of the case.  The authors found statistically significant evidence that an IJ’s work experience prior to appointment affects his or her decision-making in a particular case.  The obvious implication is that the system can easily–and subtle–be manipulated through political appointments.

This is not merely an academic point.  Just last week EOIR swore in three new judges.  Two of the three have experience with DHS or INS and all three have experience as administrative adjudicators.  From their bios, it appears that only one of the three has ever had any experience representing immigrants, and that was almost 20 years ago.  While these new IJs all seem like well-qualified individuals, their selection from within the government raises concerns, particularly in light of the biases revealed in the Refugee Roulette article.

So what is to be done? 

The authors of Refugee Roulette basically recommend more and better training.  That certainly makes sense.  Here are a few other ideas:

– The BIA should publish more decisions, to provide more guidance to Immigration Judges.

– The selection process should be broadened and more effort should be made to hire judges from the private and non-profit sectors.

– IJs whose grant or denial rate is out of whack with the mainstream should receive additional training and additional scrutiny to ensure that their decisions are complying with the law.

Maybe the lesson from Canada is that, with judges who are essentially political appointees, we need to be extra careful–and take the necessary extra steps–to ensure that they are qualified and able to properly adjudicate immigration cases and interpret the immigration law.

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Actor Randy Quaid Seeks Asylum in Canada

by Jason Dzubow

Carl Jung said, “There are no coincidences.” 

Yesterday, I wrote about American citizens who seek asylum overseas (American Citizens Seek Asylum in Great Britain).  Now, we learn that Randy Quaid and his wife Evi are seeking asylum in Canada. 

Randy Quaid in Independence Day - Just because you're paranoid doesn't mean they're not out to get you.

It seems that the couple had legal trouble in the U.S., stemming from a property dispute.  As a result of the dispute, the couple was arrested in California and released on $50,000.00 bond each.  They then traveled to Canada where Mr. Quaid was scheduled to receive an award from a Canadian film critics group.  When they failed to appear at a hearing in California, they were arrested in Canada.  Rather than quietly returning to the U.S., the couple has sought refugee status in Canada.

The basis for the claim is not entirely clear.  Mrs. Quaid says that eight of their friends, including actors David Carradine and Heath Ledger, have been “murdered” under mysterious circumstances and she’s worried something will happen to her husband next.  “We feel our lives are in danger,” she said.

According to my favorite website, TMZ, the Quaids have had a troubled history and have made some pretty outrageous claims involving different conspiracies against them.  Although the Immigration and Refugee Board of Canada has released them, they are being kept on a pretty tight leash, and will have to appear again for a hearing later this week.  Whether they follow through with their asylum claim, we will have to wait to see.  If they succeed on the claim, they will become two of the handful of U.S. citizens who have successfully claimed asylum in another country. 

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