Canada, U.S. move to redraft border treaty to cut flow of asylum seekers

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Canada and the United States are a step closer to redrawing the Safe Third Country Agreement covering asylum seekers, as Ottawa looks to stem the flow of refugee claimants crossing between authorized points of entry.

The U.S. Department of Homeland Security (DHS) has sent a formal request to the State Department – which handles international treaties – to renegotiate the STCA with Canada, a source in the U.S. administration said. The source was granted anonymity because they are not authorized to speak publicly on the matter.

Ottawa wants the pact changed to close a loophole, which would allow Canada to immediately deport most asylum seekers coming from the United States.

Canadian officials would take such asylum seekers to an official crossing, where they would be denied immediate entry. But that plan would have to clear legal hurdles articulated by the Supreme Court that guarantee a hearing to any refugee claimant setting foot in Canada.

More than 40,000 asylum seekers have entered Canada at unauthorized points of entry since U.S. President Donald Trump launched his crackdown on illegal immigration two years ago. The flood of claimants is bogging down the refugee protection system in Canada.

Under the current pact, most refugee claimants who come to Canada from the United States at official points of entry – such as border stations – are immediately sent back to the United States. But the pact does not apply between such points of entry, so those who cross between border stations have the right to make a refugee claim. Canada wants this changed so most people coming from the United States – at any point along the border – can be immediately deported. The idea behind the treaty is that refugees do not face a risk of persecution in the United States, so it is safe for them to apply for asylum there – no need to continue on to Canada.

The U.S. government source said DHS officials are working with their counterparts at the State Department on the request to start negotiations – formally called a C-175. Under that process, a high-ranking State Department official, usually an assistant secretary, must approve the request. An approval would allow talks to begin, but would not determine the outcome.

The State Department would not comment on the development. “We do not discuss internal and inter-agency deliberations, nor do we discuss specific documents or communications that are involved in such deliberations,” spokesman Noel Clay wrote in an e-mail.

Border Security Minister Bill Blair wrote to DHS Secretary Kirstjen Nielsen last September to ask her to start talks on changing the border agreement. Mr. Blair’s office said the letter mentioned his mandate from Prime Minister Justin Trudeau to manage the surge in asylum seekers at the border.

In a statement this week, Mr. Blair’s spokesman said Canada and the United States have not yet entered into formal negotiations on the STCA.

“However, since his appointment, Minister Blair has met with numerous stakeholders including U.S. members of Congress, Customs and Border Protection and Department of Homeland Security officials to discuss modernizing the STCA as soon as possible," Ryan Cotter said.

Mr. Blair visited Washington this month to press his case. He met with three Republican legislators active on border-control matters – senators John Cornyn and Ron Johnson, and Representative Mike Rogers – as well as Matthew Reynolds, the U.S. representative for the United Nations High Commissioner for Refugees, and Kirsten Hillman, Canada’s deputy ambassador to the United States.

Mr. Rogers, the top Republican on the House Homeland Security Committee, would not discuss Canada’s requested change to the treaty.

“I don’t have a comment right now,” he said outside his Capitol Hill office Wednesday.

One Canadian official, who was granted anonymity because they are not authorized to speak publicly, said between 60 and 70 per cent of the asylum seekers crossing the border between points of entry appear to have gone to the United States specifically for that purpose: They arrive in the United States on a visitor’s visa, with no intention of seeking asylum there, then immediately head to the border.

Speaking to The Globe and Mail this month, Mr. Blair said Canada is proposing a change to the STCA that would allow Canadian officials to escort asylum seekers who enter at unauthorized entry points to a designated crossing area. There, the border agreement could be applied, allowing Canadian officials to refuse entry to the asylum seekers. The change would apply to the entire border.

Mr. Blair explained how it would work in Saint-Bernard-de-Lacolle, Que., the unauthorized point of entry at the end of Roxham Road in New York State, where most irregular asylum seekers have entered Canada.

“If, for example, there was an agreement of the United States to accept back those people that are crossing at the end of Roxham Road, then Canadian officials who are already there dealing with those people as they come across could theoretically take them back to a regular point of entry … and give effect to those regulations at that place,” Mr. Blair said on March 15.

The legal community is divided over whether the proposal would violate the Supreme Court’s landmark 1985 Singh decision, which found that all refugee claimants on Canadian soil are entitled to an oral hearing.

Errol Mendes, a constitutional law professor at the University of Ottawa, says the Singh decision would apply to asylum claimants who cross into Canada between official points of entry and express fear of persecution.

“The only way you can get around it is if they don’t claim that they’re seeking asylum, but once they do, the Singh case covers it,” Prof. Mendes said. “This is really tricky.”

However, refugee lawyer Lorne Waldman has a different interpretation of how the Singh decision would apply to Mr. Blair’s proposal.

“There doesn’t have to be a hearing … [because it’s assumed] the U.S. is going to give them a fair hearing," Mr. Waldman said.

He added that while it may be legal to send refugee claimants back to the United States at the moment, a continuing Federal Court challenge may change that. In 2017, the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches launched a legal challenge to change the designation of the United States as a safe country for refugees. The groups argue that the rights of refugees have been stripped under the Trump administration. The Federal Court will take at least another year to issue a decision, Mr. Waldman said.

Craig Damian Smith, an immigration expert at the University of Toronto, said the political calculus for Mr. Trudeau is clear: He wants to shore up Liberal support in Quebec and in the 905 suburbs around Toronto, where anti-refugee sentiment boiled over into protests against asylum seekers arriving from the United States last summer. While tightening the STCA will cause some advocates for refugees to sour on the Prime Minister, there are not enough of them to matter electorally.

Still, the government’s proposed changes to the deal would clash with Canada’s image as a country that welcomes asylum seekers.

“The optics of that – pushing people back across the border, when right now we see friendly RCMP greeting people – what are they going to look like when they start chasing people down? That’s not good,” said Mr. Smith, associate director of the Global Migration Lab at the Munk School of Global Affairs and Public Policy.

It’s not clear exactly when Canadian officials first reached out to their U.S. counterparts to discuss reopening talks on the STCA. Mike MacDonald, an associate assistant deputy minister at the Immigration Department, told a parliamentary committee in May, 2018, that Canada had been in talks with the United States for “several months.”

Immigration Minister Ahmed Hussen and Public Safety Minister Ralph Goodale met with Ms. Nielsen last year to talk about the matter. Mr. Blair was the first minister to write to Ms. Nielsen last September, shortly after he was appointed the government’s first Minister of Border Security and took over the irregular asylum seekers file from Mr. Hussen.