Canada's Safe 3rd Country Agreement With The U.S. Draws Criticism

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Updated on Aug. 13 at 9:30 a.m. ET

Sitting relaxed at the kitchen table of her new home in a comfortable Toronto suburb, Kinda Bazerbashi recalls how differently she felt when her family lived in Houston.

Originally from Syria, she had lived in the United Arab Emirates, then arrived in the United States with her family on temporary visas and applied for asylum in 2012. Through a series of rejections and appeals, she says, they lived their lives in a legal limbo that made it hard to work, plan or travel to see scattered relatives.

"You are just like in jail, in a nice life," she says. "There are cars. There is supermarket, but you feel, inside, you are in jail."

By the time President Trump was elected, only a temporary protected status at the discretion of the White House kept her family from being deported back to Syria. Concerned about the president's positions on immigration, she and her husband, Anas Almoustafa, looked to an alternative.

"From the TV," says Almoustafa, "they [were] saying a lot of immigrants, they go to Canada."

In March 2017, the family did what they had seen on TV and what more than 46,000 people have done since the 2016 election. They walked across the border from the U.S. to Canada, away from official entry points, and applied for asylum.

"People are crossing that way because of the safe third country agreement," says Maureen Silcoff, president of the Canadian Association of Refugee Lawyers.

Signed in 2002, the agreement operates from the assumption that both the U.S. and Canada offer protections, so people fleeing their homes should apply for asylum in either country they arrive in first.

That kind of deal has gained renewed attention as the Trump administration presses Mexico and Guatemala to take in asylum-seekers traveling through those countries to the U.S. As America's policies push more migrants to head across its northern border, Canadians and rights groups have challenged the agreement with the U.S.

Under the accord, people leaving the U.S. cannot apply for asylum in Canada at an official crossing point, or vice versa. Except for a few limited cases, such as if they have close family in Canada, they will be turned back to the U.S.

However, what some call a "loophole" in the agreement allows people to apply for asylum in Canada if they can arrive in the country.

Enlarge this image toggle caption Emma Jacobs/NPR Emma Jacobs/NPR

"People feel hopeless about their chances of receiving protection in the United States," Silcoff says. "That essentially drives them to cross between ports of entry."

Most have traversed one country road on the border of upstate New York and the province of Quebec. Royal Canadian Mounted Police wait on the other side of this unofficial path to apprehend them.

The total number of migrant interceptions since 2016 still pales in comparison to 100,000 on the U.S.-Mexico border this March alone. Numbers have also trended downward this year over last. But Canadian pollster Shachi Kurl of the Angus Reid Institute says the border situation took on an outsize political importance because Canadians were unaccustomed to these types of arrivals.

"Just literally walking across an undefended border was starting to create a deep sense of unease and concern not just in right-wing voters, but it was really an issue that crossed the political spectrum," she says.

Canada's opposition Conservative Party has picked up this theme in its campaign to unseat Prime Minister Justin Trudeau's Liberal government in federal elections this fall. In a speech in May, Conservative leader Andrew Scheer called the numbers of irregular crossings "almost hard to believe," protesting that some migrants are able to "exploit loopholes and skip the line."

Trudeau's government has made a number of changes in the last two years to try to reduce the number of arrivals. The Canadian government sent representatives abroad to discourage people considering traveling to the border and to temper perceptions of the welcome they would receive.

Trudeau also created a new Cabinet-level border security minister, a position filled by former Toronto police chief Bill Blair. Earlier this year, Blair met with then-U.S. Homeland Security Secretary Kirstjen Nielsen about expanding the safe third country agreement so Canada could turn border-crossers back to the U.S. His office declined an interview with NPR but said the two countries have not begun official negotiations.

However, even as the U.S. pushes for similar agreements with Mexico and Guatemala to give migrants heading for the U.S. border asylum in their countries, groups like Amnesty International Canada are urging Canada to withdraw from its asylum deal.

Arguing that the U.S. does not offer equal protections for immigrants, Amnesty Canada director Alex Neve says Canada should allow people to make asylum claims at all official border crossings.

"At a time when refugees and migrants, a very vulnerable group, face this full-out attack on their rights from the U.S. government, Canada shouldn't be turning its back on them," Neve tells NPR.

Amnesty has joined with other organizations in a lawsuit to overturn the agreement. Hearings will begin in November.

Silcoff, the attorney, pointed out that U.S. policy changes that have, for example, closed eligibility for asylum to victims of domestic violence, whereas she noted, "They have a good chance because of our laws of receiving protection in Canada."

Despite their rejection in the U.S., Baserbashi's family was approved for asylum in Canada last year.

"This is the final step we hope and final move — absolutely it's [the] final move — because we get approved, thanks God!" she says.

Her family would receive a different reception if they arrived today. The Canadian government passed one more measure this summer, tucked into a large budget bill. The provision bars people from applying for asylum in Canada if they applied previously in the United States or a handful of other countries with which Canada shares biometric data.

Those who have applied elsewhere will now enter an alternative administrative process that Silcoff says offers fewer protections.

A spokesperson for Minister Blair's office said in an email to NPR that the change was meant to "deter people from making multiple asylum claims in different countries," but added, "Nobody will be removed without a chance to be heard."