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Two Sudanese women seeking asylum are informed they will be taken into custody by Canadian police just before they enter the country from the U.S.
For two days in March 1911, Canadian border officials held up a train headed north from the U.S., carrying 194 black American passengers. Officials unsuccessfully searched for any reason to block their entry. In the early 20th century, “there was a policy put in place to stop African Americans from moving north during the Great Migration,” explained Jacob Remes, a historian of the U.S.-Canada relationship. “The thing to understand about Canada is that their entire immigration and refugee regime, which is famously very welcoming with some exceptions, is premised on the idea that it’s hard to get to Canada, therefore Canada gets to choose who comes.”
That past shows through in a 2004 agreement Canada signed with the United States. Known as a “safe third country agreement,” it requires asylum seekers to apply in the first safe country they reach—and given the usual journey of asylum seekers, that country is invariably the U.S.
Now, the agreement is at the center of a lawsuit in Canadian federal court, as well as the Trump administration’s strategy to upend asylum policy.
At noon on a Monday in November, inside Toronto’s federal court building, Andrew Brouwer, a lawyer for asylum seekers and affiliated groups, painted a nightmarish picture of immigration in the U.S. He detailed the conditions in detention centers known as “hieleras,” or iceboxes. He noted abuses like solitary confinement, sexual assault, and rape: “Conditions are so poor people are dying.” He bemoaned the thousands of immigrant children separated from their parents—some too young to know their own name and, untracked by American government, unlikely to ever be reunited. He cited the long wait times for asylum hearings, and how, under the whims of a politicized Department of Justice, “habeas corpus is practically illusory.” He addressed the near 57,000 immigrants—many of them asylum seekers—forced to wait in dangerous Mexican border towns at risk of extortion, trafficking, and kidnapping. And he deplored the one-year bar, which disproportionately harms women by preventing people from applying for asylum after being in the U.S. for more than a year.
The effect was to see America’s immigration system on trial in Canada. The challengers wanted to show just how different asylum is in the U.S., and subsequently, to prove that upholding the safe third country agreement means violating asylum seekers’ rights.
“The point that we are trying to make is that the situation in [Canada] just is not comparable to the level of human rights abuses that we are seeing in the United States,” said Justin Mohammed, human rights law and policy campaigner at Amnesty International Canada. The group joined the Canadian Council of Churches and the Canadian Council for Refugees, the lead plaintiff on the suit.
The Canadian Council for Refugees first challenged the agreement after its adoption in 2004, eventually losing on a technicality in federal appeals court. That court ruled that the challengers didn’t have standing without people who were directly harmed by the agreement in the lawsuit. That’s changed, according to Mohammed: Several asylum seekers are involved this time around. And perhaps most important, the plaintiffs have the policies of Trump’s America as evidence.
The results of the lawsuit may be a long time coming. Advocates hope the case makes it to Canada’s Supreme Court. But the effects of safe third country agreements are spreading south.
Elliot Spagat/AP Images
The Migrant Protection Protocols, implemented in early 2019, require asylum seekers like these in Tijuana to wait in Mexico for their asylum hearings.
AUDREY MACKLIN HAS bright eyes and distinctive gray hair. She knows more about the safe third country agreement between the U.S. and Canada than most, but slows down to explain it to anyone who asks. A professor of human rights law at the University of Toronto, she’s written extensively about the agreement and about how we talk—unhelpfully—about migration using words like “flow,” “inundation,” and “surge.”
At a coffee shop housed between the exterior stone wall of one building and the modernist facade of another, Macklin and I discussed the loophole in the 2004 agreement that has caused a relatively new trend in migration. If asylum seekers cross into Canada between ports of entry, the agreement doesn’t apply and they’re eligible for asylum. For years, this hardly mattered. But when Trump was elected and transformed U.S. immigration policy, irregular crossing increased dramatically. Since 2017, more than 50,000 people have crossed this way, and the numbers spurred electoral spats in Canada.
Macklin has a compelling response to this: The safe third country agreement itself is the more important loophole. “The convention says you can’t send people back to their country of origin. It doesn’t say you can’t send them to a third country,” she said. Macklin suspects that this was accidental because the framers of the Refugee Convention in 1951 didn’t think it was a likely scenario that some European countries and Canada would do this.
“It’s true we can’t send the Guatemalan refugee who arrives at our frontier back to Guatemala if they’re refugees, but it doesn’t say anything in the convention about sending them somewhere else,” Macklin continued. “So we will send them to the country they passed through en route. That’s a loophole. That’s exploiting a loophole. So the safe third country agreement is Canada’s exploitation of a loophole in the international refugee law.”
Separate from the Canadian legal fight, the U.S. is dumping its responsibilities on countries with no viable asylum systems.
What about the loophole in the loophole? Why doesn’t the agreement apply between ports of entry—the root of the so-called surge in irregular border-crossing? This, Macklin explains, was done intentionally. The Canadian-U.S. border is 5,525 miles long—much too big for effective monitoring. Europe has a similar agreement called the Dublin regulation, and found it extraordinarily expensive and wholly impractical to enforce.
Countries often try to “responsibility share” refugees or disburse some of their refugee responsibilities on others. But responsibility sharing—which is ostensibly the point of safe third country agreements—isn’t happening. Instead, separate from the Canadian legal fight, the U.S. is dumping its responsibilities on countries with no viable asylum systems.
SAFE THIRD COUNTRY agreements were largely an obscure piece of international refugee law that few understood until last summer. In July 2019, the Trump administration made clear the tenets of this provision in international refugee law would be its tool of choice for keeping migrants and asylum seekers out.
The administration attempted to intimidate Central American countries with large numbers of asylum seekers (El Salvador, Honduras, and Guatemala) into signing safe third country agreements. It also strong-armed Mexico into something similar—the Migrant Protection Protocols implemented in the early months of 2019. MPP, known more commonly as Remain in Mexico, requires asylum seekers at the southern border to wait for weeks and months in Mexican territory for their asylum hearings. They languish in dangerous Mexican border cities—homeless, unemployed, and without formal aid.
In short, Remain in Mexico prevents asylum seekers from reaching American territory—which offers certain protections—and requires that they wait in a third country with which they have no ties. That’s functionally identical to core aspects of the safe third country agreement. In other words, even the administration’s unilateral policy choices reflect the precepts of these agreements.
Administration officials initially said that the pacts with Central American countries, officially known as “Asylum Cooperative Agreements,” only applied to people who had transited through a particular country. That meant they would also work like safe third country agreements: If you traveled from El Salvador or Honduras to reach the southern border, you passed through Guatemala en route and, under this agreement, the U.S. could deport you to Guatemala.
But the text of the agreement said otherwise. Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, explained that these agreements don’t “contain any transit requirement,” unlike the agreement with Canada. “No such provision exists in the Guatemalan deal, meaning that it can be applied far more broadly than [the Department of Homeland Security] ever said,” Reichlin-Melnick wrote in an email.
The U.S. can’t send Guatemalan asylum seekers back to Guatemala, but it can send Honduran and Salvadoran asylum seekers there—at least according to the agreement. As of this writing, it has done just that: The U.S. has sent more than 100 asylum seekers to Guatemala City. Just six decided to pursue asylum in Guatemala, and of this group, all but one abandoned their claims.
Guatemala, better known as a refugee producer than refugee resettler, has objected to this action, and in January the ACLU filed a lawsuit to block it. Guatemala’s president continues to deny that his government signed anything, and the country erupted in protests last summer. Guatemala’s highest court objected to the agreement, stalling its implementation, but only temporarily. Guatemala’s asylum office has just a dozen officers and little additional infrastructure to help resettle and protect vulnerable asylum seekers.
In January, the Trump administration announced that it would begin to send Mexican asylum seekers back to Guatemala—even though those migrants had never passed through that country. There’s some precedent for this: Australia has sent asylum seekers to remote islands for processing where many have languished for years. The moves have dubious legality—and it stretches the already-thin argument that Trump’s safe third country agreements were ever legal in the first place. For now, it seems that Guatemala has objected to accepting various groups of asylum seekers, a veto power embedded in the deals. But Honduras may be picking up the slack. The country agreed to begin accepting Mexicans, Brazilians, Nicaraguans, Hondurans, and Salvadorans, Reichlin-Melnick wrote.
The so-called safe third country agreements with Central American countries were never truly what they seemed. The text of the agreements made no specific claims about transit, and so the U.S. is abiding by the lawless regime Trump created—contrary to international refugee law.
The agreements are achieving at least some of Trump’s policy objectives: Border apprehensions have dropped each of the last seven months. But the consequences leave asylum seekers increasingly unsafe.
