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Safe Third Country Agreement going to court

By Michael Swan
The Catholic Register


TORONTO (CCN) — Canada’s churches and their allies are headed back to court to argue U.S. treatment of refugees has deteriorated under President Donald Trump to the extent that the United States can no longer be considered a safe country for all refugees.

This will be the second time the Canadian Council of Churches, Amnesty International Canada and the Canadian Council for Refugees — with expert legal counsel provided by the Canadian Association of Refugee Lawyers — have taken Canada’s Safe Third Country Agreement to court. The three organizations are bringing their suit in the name of a Salvadoran woman and her daughters who were recently turned away at the Canada-U.S. border.

In 2008, the Canadian Council of Churches, whose membership includes the Canadian Conference of Catholic Bishops, won a challenge to the treatment of refugees at Canada’s land borders, but the decision was overturned on appeal because the organizations challenging the law were not themselves subject to the Safe Third Country Agreement and did not have standing before the court.

This time the churches and their allies will argue the United States can no longer be trusted as a partner in the safe and fair handling of refugees.

“It is time to raise the issue again,” said Rev. Dr. Karen Hamilton, Canadian Council of Churches general secretary. “We have to say what is right in Canada according to the Charter (of Rights and Freedoms). . . . How can it be that a refugee approaches a safe, unguarded border point in the dead of winter and is turned away?”

The Safe Third Country Agreement, in place since 2004, requires refugees to apply for asylum in the first safe country in which they land. By designating the United States a safe country for refugees, Canada dramatically cut the number of asylum cases it must process inside Canada.

The Canadian government does not want to change the system.

“Similar agreements are used by countries around the world to control pressures on asylum systems. The STCA (Safe Third Country Agreement) remains an important tool for Canada and the U.S. to work together on the orderly handling of refugee claims made in our countries,” Immigration, Refugees and Citizenship Canada spokesperson Nancy Chan told The Catholic Register in an email.

But Harvard law professor Deborah Anker, founder of the Harvard Immigration and Refugee Clinical Program, questions how anyone could look at the U.S. system for refugees in its totality and conclude refugees are being treated fairly or that refugees are not being returned to countries where their lives are put at risk.

“There’s a real breakdown of the rule of law in this country,” Anker said. “I’m sorry to have to say that as an American citizen. I’m sorry to have to say it as a lawyer. I’m very sorry to say it. There have been some longstanding problems that have been tremendously exacerbated under this administration.”

Long before refugees ever get a chance to plead their case for asylum in an immigration court, border officers and U.S. immigration officials are blocking their path — telling them the United States is not accepting refugees at this time, pressuring them to withdraw statements that they fear the consequences of return to their country, Anker said. Executive orders issued in the early days of the Trump presidency have emboldened Homeland Security, Customs and Border Protection officers and Immigration and Customs Enforcement personnel to employ aggressive tactics to prevent refugees from claiming asylum, she said. 

These practices put in question whether or not the U.S. is living up to its obligations as a signatory to the United Nations 1951 Convention on Refugees, said Anker.

“The United States is unlawfully turning away some asylum seekers at official ports of entry and across the southern border without referring them, as required under U.S. law and treaty commitments, to asylum protection screenings or immigration proceedings,” said a report issued by the American organization Human Rights First in May.

Even if a refugee can get their case in front of an American immigration court judge, “immigration courts vary a lot,” said Anker.

At the Scalabrini Fathers’ Centre for Migration Studies in New York, lawyer Don Kerwin agrees there are problems, but he questions whether Canada’s system is much better and whether the legal challenge will advance the cause of refugees.

“I’m not sure that, in practice, Canada’s system is substantially better or more generous than the U.S. system,” he said. “I’m also torn in the sense that I think this strategy is playing into Trump’s hands. He wants to scare people into leaving and show them it’s pointless to seek asylum in the U.S., when it’s actually not. I feel this kind of dramatic advocacy may accelerate that trend.”

The Jesuit Refugee Service in Canada has no doubts about the need to cancel the Safe Third Country Agreement. JRS Canada country director Norbert Piché argues that increases in the number of people walking across the border over the past winter, risking frostbite and possible death, proves the Safe Third Country Agreement is endangering lives.

Under the terms of the agreement, Canada is obligated to monitor the fairness and effectiveness of the U.S. refugee determination system.

The legal challenge will take years to work its way through the courts, said Hamilton.


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