U.S. Not Safe for Refugees

From the Canadian Immigrant, January 2008, page 23, an article about the Canadian federal court deciding that the United States is not a safe place for refugee claimants:

SAFE PLACE?

Canadian courts kick the notion that the United States is safe for refugees

By Guidy Mamann

In a recent stunning decision, our Federal Court struck down our agreement with the United States that renders refugee claimants seeking entry to Canada by land ineligible to make a claim here.

In December 2004, Canada and the United States implemented the Safe Third Country Agreement, in which each declared the other a "safe Country" for refugee claimants.

Canadian refugee advocates became concerned for the fate of asylum seekers destined here who, they believed, would be unfairly denied needed protection down south. The agreement addressed this concern by requiring our federal cabinet to conduct a "continuing review" of the policies and prices of the"safe country" - the United States.

Our cabinet never conducted the review, but Canadian refugee advocacy groups did. They brought their findings to court and alleged that the United States was not, in fact, safe for those seeking safe haven.

Our Federal Court agreed.

The court found the experts presented by the applicants were more credible "both in terms of their expertise and the sufficiency, directness and logic of their reports" than the experts presented by our government.

The court couldn't understand why our government didn't bother to conduct the required review of American refugee practices even after the release of the Maher Arar report, which put into serious question U.S. assurances that it does not deport people to places where they may be tortured.

The court didn't set out to decide which system was better or more generous. Instead, it sought to determine if the United States was meeting the minimum standards required of it.

The court was troubled by many deficiencies. For example, the United States generally bars asylum claims after one year of the claimants' arrival. The court ruled this could disproportionaltely affect homosexuals, who may have to deal with cultural issues of shame, and women, who may be unaware that spousal abuse may give rise to additional protection.

Also, the U.S. Patriot Act renders refugees ineligible for protection if they are deemed to have given "material supoport" to a terrorist organization, even when it is done under duress. In contrast, Canada makes allowances for duress, i.e. when it gave protection to a woman who was forced to cook for the Tamil Tigers.

Evidence was presented to show that U.S. claimants were more likely to be detained and had less access to counsel than claimants up here. The court, however, couldn't find proof that these factors would result in the actual denial of asylum.

The court's 124-page decision is not likely to be the last word on the matter since it has given the parties the opportunity to propose questions for appeal.

Guldy Mamann practises law in Toronto at Mamann & Associates and is certified by theLaw Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000.