Ryan Remiorz/The Canadian Press
A family of asylum seekers is met by Royal Canadian Mounted Police officers after crossing the border into Canada at Roxham Road on Feb. 9, 2023.
On Tuesday, Quebec Premier François Legault met with U.S. Ambassador David Cohen to discuss the recent controversies over migrants crossing into Canada from the United States. The talk stemmed from New York City officials’ involvement in moving some of these people, who had been bused from Arizona, Colorado, Texas, and Florida to Democratic-led cities, further north into Canada.
Pressed on the issue, New York Mayor Eric Adams first waffled then more or less admitted to facilitating travel for migrants to their desired destinations outside the city. One of those popular bus destinations is Plattsburgh, New York, a city near Roxham Road, the unofficial U.S. border crossing between the smaller town of Champlain and Saint-Bernard-de-Lacolle, Quebec. New York City officials’ motives in getting people to places they want to go may have been more benign than southern-tier governors trying to gin up red-blue state acrimony. In essence, however, they’ve dropped a problem that Americans have refused to solve on the Canadians.
The Quebec premier has previously asked New York City to cease directing migrants to Quebec, pleading that the province’s resources are strained to provide immigration processing, health care, housing and other resources to new arrivals—many of the very same rationales that New York offered in its protests last month to Colorado, which was busing immigrants to the city.
Potentially complicating matters for Canada, New York and other Democratic-led cities is the target of Florida’s latest attempt to interject more chaos into the U.S. immigration system. On Wednesday, Florida Gov. Ron DeSantis signed into law a $10 million “Unauthorized Alien Transport Program,” which purports to allow state contractors to detain and relocate migrants anywhere in the United States. Republican state lawmakers have admitted that they have no idea how DeSantis plans to use the program. Designed to sidestep legal challenges within Florida, the bill could very well open up new interstate conflicts and international legal tussles along the northern frontier.
Meanwhile, the Canadian Supreme Court has taken up an immigration case that could maintain an uneasy status quo—or throw the entire situation along the world’s longest unguarded border into further turmoil. The case, Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al., could potentially invalidate the country’s Safe Third Country Agreement (STCA) with the United States, a nearly two decade-old bilateral pact that dictates how border crossers can seek protection in Canada.
The numbers of people making the northern crossings are far fewer than those along the Mexican border, but there are problems nonetheless that magnify the decades-long inability of members of Congress and successive presidents to reform a supremely dysfunctional American immigration system. The new migrant busing travesties, along with ineffective American immigration regulations and border policies, are on the verge of interjecting the chaos that characterizes the southern border into U.S.-Canada relations.
“It is not new for people coming from the Mexican border [having] the express intention of coming all the way north and continuing into Canada, especially people who have already crossed multiple countries,” says Camille Mackler, Executive Director of the Immigrant Advocates Response Collaborative, a coalition that provides legal services to New York state’s immigrant communities. Many of those immigrants, she adds, have calculated that the “U.S. didn’t feel safe anymore, the process takes forever, and they don’t understand why their applications aren’t getting adjudicated, so they give up and they try to cross” into Canada.
If the high court finds the agreement unconstitutional, the two countries would face an uncomfortable period of negotiating a new pact.
Between February 2017 and September 2022 more than 60,000 people have entered Canada by way of irregular border crossings to claim refugee status. With early pandemic border closures, the numbers had dwindled in 2020, but surged again at the beginning of 2022 as the pandemic moderated.
Under the STCA, a person must apply for legal status in the first country they enter, which for migrants transiting the southern borders would be United States. When they arrive at an official Canadian border crossing, they are barred from entering unless they can demonstrate that that they can enter under specified exemptions from that rule, such as having close family in Canada. The agreement, however, does not apply to unofficial border crossings like Roxham Road, so migrants travel to those points to enter Canada. Under both Canadian and international refugee law, those crossings are lawful, according to Maureen Silcoff, a partner at Silcoff Shacter, a Toronto-based immigration law firm, and a past president of the Canadian Association of Refugee Lawyers.
Roxham Road has created domestic political headaches for Canadian Prime Minister Justin Trudeau, who would prefer to see the STCA cover the entire 5,525 mile long border. His Liberal Party government has spent nearly half a billion Canadian dollars on the makeshift crossing, leading the three parties in the parliamentary opposition (the Bloc Québécois, the Conservative Party, and the New Democratic Party, a social democratic party to the left of Trudeau’s Liberals) to demand an accounting of public expenditures at the crossing and related social services. There have also been calls to close Roxham Road and seal the border.
Canadian refugees advocates and lawyers have long argued that harsh American detention center conditions fall short of international standards. In 2020, after a second challenge to the SCTA, Canada’s Federal Court found the SCTA unconstitutional, ruling that asylum seekers in the United States have “limited access to release from detention; serious obstacles in obtaining legal assistance; and harsh and often inhumane detention conditions, e.g. solitary confinement, freezing temperatures, inadequate and/or delayed medical care, inadequate/unsafe food/water and lack of accommodation of religious dietary customs. The Court found that the conditions of detention create obstacles to mounting an effective asylum claim and therefore expose refugee claimants to a risk of refoulement.”
The Federal Court’s decision was reversed on appeal in 2021 and the case is now pending before the Supreme Court of Canada. If the high court finds the agreement unconstitutional, the two countries would face an uncomfortable period of negotiating a new pact. Upholding the SCTA, would preserve the status quo—with people continuing to seek out unofficial routes.
For Silcoff, the immigration lawyer, a potential way forward lies in Canada unilaterally creating additional SCTA “public policy” exemptions, which would not currently require changes to the bilateral agreement or any Canadian legislative action. Such a move could establish new categories for people to enter the country, which would be applicable coast to coast and would diminish the attractiveness of the Roxham Road. (Currently, there is only one, rarely invoked public policy exemption: for people who would face the death penalty in their countries of origin.)
She labels the New York episode as “a distraction.” The city’s actions “allow people to come sooner, but it does not create a movement that was not already there,” Silcoff says. “The issue is the SCTA, and that people are restricted at the points of entry. That’s the source of the problem and that’s what needs to be resolved.”
