Tag Archive for: safe third country agreement

David Isaacson

Implementation of Safe Third Country Agreement Held to Violate Canadian Charter of Rights and Freedoms—So Why Will Prior U.S. Asylum Claimants Be Denied a Hearing at the Refugee Protection Division in Canada Even After This Takes Effect?

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In Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) , 2020 FC 770 (July 22, 2020), the Federal Court of Canada recently ruled that the statute and regulations implementing the Safe Third Country Agreement (STCA) between Canada and the United States regarding the processing of asylum and refugee claims were of no force or effect because they violated section 7 of the Canadian Charter of Rights and Freedoms.  This is good news for those in the United States who may want to claim refugee status at a Canadian land port of entry in the future, which the STCA ordinarily prohibits, but it is not as good as it may seem at first glance.  The ruling was suspended for six months, so the STCA rules remain in effect at least until January 22 (possibly longer if the suspension is extended pending appeal).  The ruling also does not affect a different restriction on making refugee claims in Canada if one has previously applied for asylum in the U.S. or certain other countries, section 101(1)(c.1) of the Immigration and Refugee Protection Act (IRPA), which was recently upheld against a Charter challenge.  As I will explain, however, the reasoning in Canadian Council for Refugees severely undermines the policy basis for section 101(1)(c.1), suggesting that it should be repealed even if it is not void as violative of the Charter.

The STCA, which I have discussed in prior posts, ordinarily precludes asylum-seekers who are present in one of the United States or Canada from making a claim for asylum or refugee status at a land border port of entry of the other country.  Some claimants with qualifying family members may still make refugee claims at a Canadian port of entry, as may unaccompanied minors and a few other categories of people.  (The STCA does not apply to those who enter between ports of entry, although such entries in order to apply for refugee status are currently forbidden during the COVID-19 pandemic by an Order in Council under the Quarantine Act.)  In general, however, one who comes to a Canadian land port of entry to make a refugee claim, and is not exempt from the STCA, will be sent back to the United States.

Upon being sent back to the United States, however, such claimants are often detained under unacceptably harsh conditions, just like other asylum claimants at a U.S. port of entry.  As the Court in Canadian Council for Refugees explained of one such claimant returned to the United States, who was an applicant in the case and had provided an affidavit:

Ms. Mustefa, upon being found ineligible . . . was returned to the US by CBSA officers and immediately taken into custody by US authorities.  She was detained at the Clinton Correctional Facility for one month and held in solitary confinement for one week.  She was released on bond on May 9, 2017.

[96]  Ms. Mustfa’s imprisonment evidence is compelling.  In her Affidavit she explains not knowing how long she would be detained or how long she would be kept in solitary confinement.  She describes her time in solitary confinement as “a terrifying, isolating and psychologically traumatic experience.”  Ms. Mustefa, who is Muslim, believes that she was fed pork, despite telling the guards she could not consume it for religious reasons.  Ms. Mustefa describes skipping meals because she was unable to access appropriate food, and losing nearly 15 pounds.  Ms. Mustefa also notes that after she was released from solitary confinement, she was detained alongside people who had criminal convictions.  She explains the facility as “freezing cold” and states that they were not allowed to use blankets during the day.  Ms. Mustefa states that she “felt scared, alone, and confused at all times” and that she “did not know when [she] would be released, if at all.”

Canadian Council for Refugees, 2020 FC 770 at ¶¶ 95-96.  There were also similar, although anonymized, affidavits provided by other rejected asylum claimants, further confirmed by “affidavit evidence of lawyers who provide assistance to those detained.”  Id. at ¶ 98.

Because this deprivation of liberty and the hardship resulting from detention result when refugee applicants covered by the STCA are returned to the United States under the implementing statute and regulations and are handed over to U.S. officials by Canadian officials, they were held to engage Section 7 of the Charter, which states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  They were also found not to be justified under Section 1 of the Charter, which provides that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Court therefore held that the STCA implementing provisions, “s. 101(1)(e) of the IRPA and s. 159.3 of the Regulations are of no force or effect pursuant to section 52 of the Constitution Act, 1982, because they violate s. 7 of the Charter.”  Canadian Council for Refugees, 2020 FC 770 at ¶ 162.  This holding was not made immediately effective, however.  Rather, the Court stated in the conclusion of its opinion that “To allow time for Parliament to respond, I am suspending this declaration of invalidity for a period of 6 months from the date of this decision.”  Id. at ¶ 163.

Even if the declaration of invalidity takes effect, however, this unfortunately will not mean that all those coming to Canada from the United States to seek protection will be entitled to the full refugee status determination process.  Under section 101(1)(c.1) of IRPA, enacted just last year,

A claim is ineligible to be referred to the Refugee Protection Division if

. . . .

the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;

IRPA s. 101(1)(c.1).  There are several countries with which Canada has such information-sharing agreements, including the United Kingdom, Australia, and New Zealand as well as the United States, but the creation of IRPA section 101(1)(c.1) appears to have been primarily targeted at people who had previously made asylum claims in the United States.

As I discussed in a previous blog post, the measure that became IRPA section 101(1)(c.1) was based on the incorrect premise (publicly stated by a spokesman for the then-Immigration Minister) that the U.S. and Canadian asylum systems were “similar enough” that an application rejected by the U.S. would likely be rejected by Canada as well.  Claimants covered by section 101(1)(c.1) will, under IRPA section 113.01, have access to a somewhat enhanced version of a Pre-Removal Risk Assessment (PRRA) that comes with a right to an oral hearing, but the PRRA process is a poor substitute for a full Refugee Protection Division hearing and traditionally has a lower approval rate.

Unfortunately, in a decision the day after the Canadian Council for Refugees ruling that received less publicity, a judge of the Federal Court upheld IRPA section 101(1)(c.1) against a Charter challenge.  In Seklani v. Canada (Public Safety and Emergency Preparedness), 2020 FC 778 (July 23, 2020), the Court held that section 101(1)(c.1) did not violate Section 7 of the Charter, because Section 7 was only engaged at the point of actual removal and a possible application to defer this removal, not an earlier stage when access to Refugee Protection Division proceedings was being determined.   Those subject to section 101(1)(c.1) would not be immediately removed to the United States, or anywhere else, when their claims were found ineligible to be referred to the Refugee Protection Division.  Rather, they would still have access to the PRRA process before removal (although the applicant in Seklani did not immediately have such access because his home country of Libya was subject to an Administrative Deferral of Removals and so he was not subject to imminent removal in any event), would still be able to seek a deferral of removal from the Canada Border Services Agency (CBSA), and would be able to seek judicial review and a stay of removal in connection with a denial of the PRRA or the deferral of removal.  Their Section 7 rights were thus found not to be engaged by the ineligibility determination.

Whether or not the holding in Seklani that section 101(1)(c.1) does not violate the Charter is correct, the judgment regarding the STCA in Canadian Council for Refugees further supports the argument that section 101(1)(c.1) is bad policy and should be repealed.  The U.S. policy regarding detention of asylum-seekers at the border that underlay the judgment in Canadian Council for Refugees is itself a substantial distinction between the U.S. asylum system and the Canadian refugee system—one that further undercuts the suggestion in support of section 101(1)(c.1) that the two systems are the same and failure in the U.S. asylum system would likely portend failure in the Canadian refugee system.

If an asylum applicant is detained upon reaching the United States in the way that Ms. Mustefa was, and in the way that many other asylum applicants are when they seek to enter the United States, this can significantly impact their chances of success on their asylum claim.  It is more difficult to find counsel, gather evidence, or contact potential witnesses when one is in detention. It is not even merely an issue of a one-month detention such as Ms. Mustefa experienced, although that is bad enough; being released from detention has become sufficiently difficult that it has inspired a number of class-action lawsuits, such as Damus v. McAleenan, which addressed the extremely low rates of parole from custody by several ICE field offices around the United States, and Velesaca v. Wolf, which addressed the near-universal denial of release on bond by the ICE New York City Field Office.

The Canadian Council for Refugees judgment itself recognized the difficulties in pursuing an asylum claim that are caused by detention, in the course of finding an increased risk of return to harm for one of the applicants that implicated the Section 7 interest in security of the person.  As the Court explained:

In the case of ABC, I am satisfied that the evidence supports a finding that the risk of refoulement for her is real and not speculative had she been detained in the US.  I find this based upon the evidence documenting the challenges in advancing an asylum claims for those detained.  There is evidence of the barriers in accessing legal advice and acquiring the necessary documents to establish an asylum claim in the US.

[107]  Professor Hughes describes the difficulties faced by those who are detained including: detainees not being able to afford phone calls, people from outside the detention facility not being able to contact detainees because they cannot call them, evidence being lost due to transfers between detention centres, and detainees not having access to translators they may need to fill in the necessary forms.

[108]  Mr. Witmer, a lawyer working with detainees, describes issues with “basic communication” as an impediment to the making of an asylum case.  He notes that detainees are unable to leave messages with a call back number.  He also notes that while many detainees are accustomed to communicating with family using email, social media and internet-based communication apps, they do not have access to these services in detention.

[109]  Further, lawyer Timothy Warden-Hertz estimates that, at the detention centres his organization services, the Northwest Detention Center (NWDC), 80-85% of those detained do not have a lawyer and must represent themselves.  He estimates that 75% of asylum claims from the NWDC are denied as compared to the national average of 52% of claims being denied.

Canadian Council for Refugees, 2020 FC 770 at ¶¶ 106-109.

Those who make refugee claims under Canadian law at a port of entry (if exempt from the STCA) or otherwise, in contrast, are not generally automatically detained as in the United States.  They may obtain counsel, communicate with friends and relatives to gather evidence, and prepare for their hearings without being hindered in these efforts by incarceration.

In this regard, as in the other respects discussed in my previous post, U.S. asylum proceedings are simply not “similar enough” to Canadian refugee proceedings.  Accordingly, it is inappropriate to presume, as IRPA section 101(1)(c.1) does, that those whose U.S. asylum claims are denied, would have little chance of succeeding in Canadian refugee claims.  Section 101(1)(c.1) should be repealed, and those whose claims were denied under the inappropriately detention-intensive U.S. asylum system should be given a full opportunity to pursue their refugee claims in Canada.

David Isaacson

“Safe” Third Country Agreements and Judicial Review in the United States and Canada

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The subject of safe third country agreements, or as the U.S. government has begun calling them “Asylum Cooperation Agreements”, has been in the news lately in both the United States and Canada.  The U.S. and Canada have had such an agreement with one another since 2002, implemented pursuant to section 208(a)(2)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. 1158(a)(2)(A), and section 208.30(e)(6) of Title 8 of the Code of Federal Regulations (CFR) in the U.S., and pursuant to section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) and sections 159.1-159.7 of the Immigration and Refugee Protection Regulations (IRPR) in Canada.

The idea of a safe third country agreement (STCA) as it has traditionally existed, as between the U.S. and Canada, is that the two countries agree that many applicants for asylum or refugee status, who have first come to one of the two countries should apply in that country where they first arrived, rather than going to the other country to apply.  If both countries have “generous systems of refugee protection,” as the preamble to the U.S.-Canada STCA puts it, then there may arguably be efficiency in relegating people to apply for asylum in the first of the two countries that they reach.

The U.S.-Canada STCA covers only people who make a claim at a land border port of entry or are being removed from one of the two countries through the territory of the other.  It does not apply to citizens of either country or stateless persons last habitually residing in either country.  It also has other exceptions for applicants who have certain family members with lawful status in the country where they wish to make a claim, or whose family members already have ongoing asylum/refugee claims in that country, or who are unaccompanied minors, or who either have a valid visa for the country where they wish to apply or did not need a visa for that country but did for the other.  In addition, each country may exempt additional applicants whom it determines to process itself on the basis that it is in its public interest to do so. These exceptions are laid out at Articles 2, 4, and 6 of the agreement itself, and are also detailed at 8 C.F.R.§ 208.30(e)(6) and at IRPR sections 159.2 and 159.4-159.6.

As many refugee claimants have come to have less faith in the U.S. asylum system than the Canadian refugee system, and due to the restriction of the U.S.-Canada STCA to entrants at land ports of entry (or instances of removal through one country by the other), an increased number of refugee claimants have entered Canada at unauthorized crossing points outside a port of entry in order to make a claim, most notoriously at Roxham Road along the New York-Quebec border.  (The idea is not to evade immigration officers, but simply to avoid the application of the STCA; news articles describe an oft-repeated formal warning to the applicants that entry at that specific place will result in arrest, which does not generally dissuade people since being arrested after entry into Canada, and making a refugee claim, is precisely their goal.)  There has been discussion of modifying, suspending, or terminating the agreement, and one Conservative Member of Parliament suggested that the entire U.S.-Canada border be designated as a port of entry, although in practice that would have very peculiar consequences for the immigration system as a whole (since it would mean applicants for admission in general could show up at any point along the border to be processed).  There has also been a legal challenge, discussed further below, to the notion that the U.S. can currently qualify as a safe third country consistent with Canadian constitutional law and international obligations.  The Canadian government also recently, as part of a budget bill, added to IRPA a provision separate from the STCA but also evidently designed to discourage claimants from the United States, section 101(1)(c.1), which bars refugee claims by those who have previously claimed in the United States or another country with which Canada has an information-sharing agreement—a provision I have criticized in a prior blog post.

The U.S., meanwhile, has been entering and seeking to enter into “Asylum Cooperation Agreements” with various Central American countries, Guatemala being the first followed by Honduras and El Salvador.  An interim final rule was published last week to implement such agreements, and removal from the United States under the Guatemala agreement is said to have begun just a few days ago.

The signing and implementation of these “Asylum Cooperation Agreements” has attracted a great deal of criticism, because describing Guatemala, Honduras and El Salvador as safe third countries, or safe countries in any sense, would be highly dubious, to put it mildly.  A piece in Foreign Policy described the Agreement with Guatemala as “a lie”, given Guatemala’s high level of crime – the U.S. State Department’s Overseas Security Advisory Council (OSAC) having written of the country as “among the most dangerous countries in the world” with “an alarming high murder rate” – and lack of resources to process asylum cases – the country having apparently received only 257 asylum claims in 2018 and adjudicated only 17.  Indeed, even the U.S. asylum officers implementing the plan to remove asylum-seekers to Guatemala under the agreement have reportedly been given “materials . . . detailing the dangers faced by those in the country, including gangs, violence, and killings with “high levels of impunity.””  Honduras, where the U.S. Government is said to intend to implement a similar agreement by January, is also problematic to describe as a “safe” country, with OSAC relaying a Department of State Travel Advisory “indicating travelers should reconsider travel to the country due to crime.”  Similarly El Salvador, with which the U.S. has also signed an agreement despite its having one of the highest homicide rates in the world.  And given the radically underdeveloped asylum systems in Guatemala and likely the other countries as well, the requirement under INA 208(a)(2)(A) that “the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection” if removed seems unlike to be met.  The point of threatening removal to these countries seems to be more to discourage asylum claims entirely.

Moreover, the screening process to determine whether asylum-seekers can be exempted from removal to Guatemala, based on a fear of persecution there, is already being implemented in a way that has been described as “a sham process, designed to generate removals at any cost.”  Under the interim final rule, those subject to potential removal under an “Asylum Cooperation Agreement” will not be allowed to consult with attorneys or others during the screening process, or present evidence.  As the interim final rule puts it at new 8 C.F.R. § 208.30(e)(7), “In conducting this threshold screening interview, the asylum officer shall apply all relevant interview procedures outlined in paragraph (d) of this section, except that paragraphs (d)(2) and (4) of this section shall not apply to aliens described in this paragraph (e)(7)”—8 C.F.R. § 208.30(d)(4) being the provision that gives the right in ordinary credible-fear proceedings to “consult with a person or persons of the alien’s choosing prior to the interview or any review thereof, and . . . present other evidence, if available.” This is different than the U.S.-Canada STCA, which specifically provides in its Statement of Principles that “Provided no undue delay results and it does not unduly interfere with the process, each Party will provide an opportunity for the applicant to have a person of his or her own choosing present at appropriate points during proceedings related to the Agreement.”  Unless vulnerable people with no legal representation, no opportunity to consult with an attorney or anyone else, and no opportunity to present evidence can prove to an asylum officer that they are more likely than not to be persecuted on a protected ground or tortured in Guatemala, they will be given the option of being returned to their home country of feared persecution or being removed to Guatemala.  One might reasonably describe this as outrageous, and a question that naturally comes to mind is whether it would survive review by a court.

The question of judicial review of the propriety and application of safe third country agreements and “Asylum Cooperation Agreements” has indeed arisen in both the United States and Canada, with different initial indications regarding the result.  In the U.S., the suggestion has been made by at least one commentator that the recent U.S. decision to send certain asylum applicants to Guatemala pursuant to an agreement may not be judicially reviewable (or at least “any lawsuits challenging the new rule will face significant obstacles”.)  In Canada, on the other hand, a challenge to the Canada-United States STCA, asserting that given current conditions in the U.S. the STCA violates the Canadian Charter of Rights and Freedoms, was argued before the Federal Court of Canada earlier in November and is awaiting decision.  A previous challenge to the Safe Third Country Agreement and the regulations implementing it had some success before being rejected by the Federal Court of Appeal of Canada in part on the basis that the organizations which had brought the challenge did not have standing to do so in the abstract; the current challenge includes a family of rejected refugee applicants seeking judicial review.

The basis for the potential lack of judicial review in the United States regarding safe third country agreements and their implementation is section 208(a)(3) of the INA, 8 U.S.C. § 1182(a)(3), which provides that “No court shall have jurisdiction to review a determination of the Attorney General under paragraph (2).”  (Recall that safe third country agreements, as a bar to asylum, are authorized by section 208(a)(2)(A) of the INA, which is part of the referenced paragraph 2.)  There are potential exceptions to this rule, such as the exception at 8 U.S.C. § 1252(a)(2)(D) for review of constitutional claims or questions of law on petition for review of a removal order, and the provision at 8 U.S.C. § 1252(e)(3) for review of written policies regarding expedited removal procedures within 60 days of their implementation, as in Grace v. Barr (formerly known as Grace v. Sessions and Grace v. Whitaker).  It may well be that the deeply problematic agreements with Guatemala, Honduras, and El Salvador, and the details of their implementation, will be subject to judicial review under one of these exceptions or otherwise.  There is certainly at least some basis, however, for the existing conventional wisdom that judicial review will be quite difficult.

Under Canadian law, on the other hand, judicial review of administrative action cannot be precluded in this way.  As I explained in my above-mentioned prior blog post, even aspects of the refugee determination as to which administrative decision-makers are given deference by the courts will be reviewed for reasonableness, because as explained by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, “The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies.  This power is constitutionally protected.”

Admittedly, even under Canadian law judicial review can be procedurally limited by legislation, although not eliminated.  Under section 72(1) of IRPA, for example, seeking review in the Federal Court of Canada of any decision under IRPA generally requires “making an application for leave to the Court.”  Moreover, under section 72(2)(d) of IRPA, the leave application is adjudicated by a single judge of the Federal Court “without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance”, and under section 72(2)(e), there is no appeal with regard to an application for leave.  Even if leave is granted, the single level of judicial review at the Federal Court may be all there is: under section 74(d) of IRPA, an appeal to the Federal Court of Appeal of Canada in an immigration matter is generally possible “only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.”  (Under certain very limited circumstances, an appeal can be taken to the Federal Court of Appeal even absent a certified question, but the threshold for that is quite high, as clarified recently in the citizenship context by Canada (Citizenship and Immigration) v. Fisher-Tennant, where the Court of Appeal quashed a government appeal against what was at most an ordinary error by the Federal Court in finding Andrew James Fisher-Tennant to be a citizen of Canada.)  So there is not an unlimited amount of judicial review, but there is necessarily some.

To the extent that the existing exceptions under the INA do not prove adequate to allow for full judicial review of decisions under safe third country agreements or “Asylum Cooperation Agreements”, Congress should give serious consideration to revising INA § 208(a)(3) to provide for judicial review of such decisions to exist in the United States, as it exists in Canada.  It was one thing, although still deeply problematic from a rule-of-law perspective, when the statute in practice only attempted to guard from judicial review decisions to return asylum-seekers to a plausibly safe country such as Canada.  If agreements are to be made with other, much more dangerous countries such as Honduras, Guatemala, and El Salvador, however, then judicial review of these agreements and how they are applied in practice becomes significantly more urgent.  Given the conditions in these countries, the question of whether people can be sent to such countries under safe-third-country agreements without any judicial review could literally be a life-or-death issue.

 

Sophia Genovese

Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico

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The Trump Administration is seeking to create and implement a safe third country agreement with Mexico. Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement, which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers. The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections.

As reported by Human Rights First and Amnesty International, 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded, and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum, of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians.

A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, did nothing to protect Mr. H and his family. Not long thereafter, Mr. and Mrs. H are attacked as they leave their home. Mrs. H is severely wounded, but her husband, Mr. H, dies. As Mrs. H recovers in the hospital, she begins to receive death threats on account of her husband’s political beliefs. Fearing for her life, she flees Honduras, travels through Guatemala and Mexico, and presents herself at the US border claiming asylum. Given her extraordinary claims, Ms. H would most likely be granted asylum in the United States. However, under a safe third country agreement, if she travelled through Mexico to get to the US, the US would return Mrs. H to Mexico without first adjudicating her asylum claim. If Mexico in turn denies the asylum application (or worse, denies the asylum seeker access to its asylum procedures) where the US may have granted the application, and if the asylum seeker is thereafter refouled, the US is thus violating its international obligations and potentially under INA § 208(a)(2)(A) for indirectly refouling that individual.

The US currently has a safe third country agreement with Canada that has been similarly criticized, both at the initial signing and now with renewed fervor on account of Sessions’ evisceration of the US asylum system. The first challenge to the agreement was in 2007 in Canadian Council for Refugees, et al. v. Her Majesty the Queen, [2007] FC 1262 (Can. Ont.). The Court began by recalling that the US and Canada are both parties to the 1967 Optional Protocol to the UN Refugee Convention and thus both possessed the same international obligations with respect to the treatment of asylum seekers, including the principle of non-refoulement. The Court found, however, that the US was “not compliant with international conventions,” especially with respect to its one-year asylum filing deadline (which Canada does not have), and thus concluded that the US was not a safe third country for asylum seekers. Accordingly, the Court reasoned that by returning asylum seekers to the US without first adjudicating their asylum claims, which results in their subsequently denied asylum application in the US and refoulement to their country of origin, Canada was also in violation of its international obligations and under the Canada Charter of Rights and Freedoms. In other words, Canada was indirectly responsible for impermissible refoulement. Unfortunately, the decision was ultimately overturned by the Federal Court of Appeal, thus preserving the safe third country agreement.

There was another challenge to the US-Canada safe third country agreement at the Inter-American Commission on Human Rights (IACHR) in John Doe et al. v. Canada, Case 12.586, Inter-Am. Comm’n H.R., Report No. 24/11, OEA/Ser.L/V/II.141, doc. 29 (2011). The IACHR similarly found that Canada was in violation of its international obligations of non-refoulement by failing to adjudicate asylum claims of individuals who had travelled through the US. Lacking enforcement authority, the IACHR merely offered recommendations to Canada so that they remain compliant with their international obligations. Legal challenges to the agreement in Canada laid dormant until July 2017 when Amnesty International and the Canadian Council for Refugees again initiated litigation against the agreement, where they outlined the numerous ways the US asylum system failed to meet international standards, and identified how US asylum policy has continued to deteriorate under the Trump regime. This suit remains pending. If the US were to adopt a safe third country agreement with Mexico, the Canadian Council for Refugees would certainly want to amend their pleadings and raise the issue of an asylum seeker potentially being subject to two safe third country agreements, implicating Canada in chain refoulement.

As we have blogged about extensively, the US asylum system, especially under the Trump Administration, is certainly not the best asylum model out there. This article does not suggest that the US asylum framework is the be-all end-all, nor do we suggest that Mexico is a bad country. Nevertheless, a safe third country agreement with Mexico would cause the United States to be in further violation of our international, and arguably domestic, obligations of non-refoulement. Violence in Mexico has reached record levels and the US State Department has issued multiple travel advisories to various Mexican states. Further, as discussed above, Mexico is extremely dangerous for vulnerable populations such as asylum-seekers and migrants, especially women. Access to asylum procedures is astonishingly low in Mexico, and even if an individual is lucky enough to file their claim, it is still more likely than not that their claim will be denied.

It is unclear if the incoming Mexican president, Andres Manuel Lopez Obrador, will be more open to the agreement than the departing president, Enrique Peña Nieto. Under the backdrop of the NAFTA renegotiations, the US may seek to leverage their continued participation in NAFTA in return for a safe third country agreement with Mexico. Nevertheless, advocates should continue to speak out against this devastating policy ahead of any official negotiations. If the US and Mexico end up creating a safe third country agreement, advocates should vigorously contest the legality of this agreement in Court, as such an agreement will undoubtedly result in the impermissible return of bona fide asylum seekers to their country of origin.