Canadian Court: Returning Asylum-Seekers to the US Violates Their Rights

A truck crosses the Bluewater Bridge border crossing between Sarnia, Ontario, and Port Huron, Michigan, on March 16, 2020. The Canadian government decided March 16, 2020 to close its borders to most foreign nationals with the exception of Americans. (Geoff Robins/AFP via Getty Images)

Refugee advocates with a San Francisco legal institute are celebrating this week after a Canadian court struck down a binational agreement that lets Canada send asylum-seekers back to the U.S., saying conditions in U.S. immigration detention are inhumane and violate peoples’ rights.

Since 2004, under a so-called Safe Third Country Agreement, Canadian immigration officials have turned back people asking for asylum at official ports of entry on the U.S.-Canada border, and the United States has done the same. Both countries have deemed one another to be safe places for migrants from other parts of the world to seek protections guaranteed under international refugee conventions.

But the Federal Court of Canada ruled Wednesday that the U.S. is not a safe place for people seeking refuge from persecution — because immigration authorities in the U.S. lock up asylum-seekers, sometimes without heat, food or medical care, and with very little access to legal help.

“The evidence is clear that the most significant harm suffered is imprisonment. Additionally, there are the related harms regarding the conditions of detention and the heightened risk of refoulement,” wrote Justice Ann Marie McDonald, referring to the forcible — and unlawful — return of an asylum-seeker to their home country in spite of the likelihood that they’ll suffer persecution.

Several asylum-seekers, originally from El Salvador, Ethiopia and Syria, brought the case in 2017, along with the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches. They testified about conditions in U.S. immigration custody that included being held in solitary confinement, being denied blankets in frigid cells, being left without food or the opportunity to bathe, and having medical needs ignored.

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U.S. immigration lawyers also told the Canadian court about the obstacles detainees face to building their asylum cases, including barriers to telephone and email access, a lack of access to lawyers and translators, and the impossibility of assembling necessary documents while incarcerated.

McDonald found that these conditions — suffered by asylum-seekers turned back to the United States — violated the Charter of Rights and Freedoms, a part of Canada’s constitution.

“The actions of Canadian officials in returning ineligible [Safe Third Country Agreement] claimants to U.S. officials facilitates a process that results in detention,” she wrote. “The accounts of the detainees demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims.”

McDonald added that penalizing people for “the simple act of making a refugee claim” violates the spirit and intention of refugee conventions and the U.S.-Canada agreement.

Karen Musalo, who directs the Center for Gender and Refugee Studies at UC Hastings College of the Law, testified in the case. She said the ruling should be a “wake-up call for all Americans” about conditions in the U.S. asylum system.

“Justice McDonald’s decision lays bare the grave risks that asylum-seekers face under the agreement, which have been compounded by the alarming spread of COVID-19 in U.S. immigration detention centers,” Musalo said. “Returns to these conditions must not continue even one day more.”

The U.S. Department of Homeland Security, which operates immigration detention facilities, did not respond to a request for comment by press time.

The Canadian court suspended judgement for six months to give the Canadian Parliament time to respond.