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Jason Dzubow on Political Asylum

Asylum in Canada Is Not for Everyone (Sorry Aboot That)

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This piece is by our intrepid associate, Ruth Dickey, who is well-known for her love of Canada.

Given the current mess that is the U.S. asylum system, it’s not surprising that many asylum seekers who first land in the United States have been heading North to make their claims in Canada. Perhaps they are lured there by faster asylum processing times and a more generous attitude towards refugees. While it may sound idyllic to roll out of your igloo in the morning, pick up your Tim Horton’s coffee, and commute to work on a polar bear, obtaining asylum in Canada after you’ve been in the United States may not be so easy.

Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.

The main problem in Canada for asylum seekers who have passed through the United States is something called the Canada-U.S. Safe Third Country Agreement ("STCA"). This treaty requires applicants to make their asylum claims in the first safe country they enter. Thus, if you first enter the United States, you have to make your asylum claim here. If you first enter Canada, you have to make your claim in that country.


The STCA has four exceptions: (1) The applicant has family members with lawful status in Canada; (2) The applicant is a minor travelling without a parent; (3) The applicant has a document that allows him to enter Canada; and (4) The applicant faces the death penalty. More details about these exceptions can be found here.


The most common exception is probably the family member exception; it may also be the exception that creates the most confusion, so let’s take a closer look. Under the STCA, the term “family member” is broadly defined, to include:


  • spouse
  • legal guardian
  • child
  • father and/or mother
  • sister and/or brother
  • grandfather and/or grandmother
  • grandchild
  • uncle and/or aunt
  • nephew and/or niece
  • common-law partner
  • same-sex spouse


You can see that Canada allows people to meet the family-based exception with a wide range of relatives. Cousins are not on the list, but virtually all other categories of relatives are.


In our office, we currently represent several people who left the U.S. to seek asylum in Canada, only to be turned back at the border. One client hired us in 2014, after he attempted to enter Canada from the U.S. He had qualifying Canadian relatives who were naturalized citizens of Canada. However, he had no documentation to prove the relationships, and so Canadian border officials rejected his request for entry and quickly returned him to the United States.


Unlike many people who filed for asylum in 2014, our client was lucky enough to get a prompt interview. However, like many applicants, his decision was delayed. Only recently—a year and a half after his first interview—he was called for a second asylum interview where he was questioned about his trip to Canada. Unfortunately, a well-meaning, but not-so-well-informed relative in Canada tried to help our client while he was in Canadian custody, and made some contradictory statements to Canadian officials. The Asylum Officer had the records from Canada, and asked our client about the relative’s statements. Our client explained the situation as well as he could, and we are still waiting for a final decision.


There are some lessons to be drawn from this client’s ordeal. First, going from the U.S. to Canada can do more harm than good. Even if you don’t have some well-intentioned relative meddling in your case, it takes time for the Asylum Office to get Canadian immigration records and review them. That means more delay (on top of already long delays), and no one wants that. Also, if you already tried to seek asylum in Canada and were rejected, tell your lawyer and try to remember any communication that you or your relatives had with the Canadian authorities—the Asylum Officer will likely have access to your records, so plan accordingly.


Another lesson is that, if you are seeking a family exception--through your uncle, for example--you should bring civil records (and translations) demonstrating that you and your uncle are related. Our client’s experience shows that Canadian border officials will not necessarily wait around for you to collect these documents once you reach Canada. You need to have the documents with you before your trip.


Finally, if you do plan to seek asylum in Canada, and you are in the U.S., you would be wise to consult with a Canadian immigration lawyer before traveling. Maybe you qualify for an exception to the STCA and maybe you don't. A Canadian lawyer familiar with that country's immigration laws should be able to advise you before you take on the risk and expense of going to Canada for asylum.


There are certain advantages to asylum in Canada, and some people who pass through the U.S. are eligible to seek refuge in that country. But unless you plan ahead for your trip, you may end up back in the United States and worse off than when you started.

Originally posted on the Asylumist: www.Asylumist.com.

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Comments

  1. tchadwic's Avatar
    Great article Jason. Quick question: you stated "if you first enter the United States, you have to make your asylum claim here." If someone did make a claim first in the U.S., but was denied, could they then apply showing that they applied first in the U.S., or would that be precluded as well?
  2. JDzubow's Avatar
    I don't know - I believe if you can show that you did not receive a proper review of your claim, you can apply in Canada. Also, of course, Canada has its own laws and perhaps some people who apply in the US are not eligible for asylum here, but may be eligible in Canada (and visa versa). I don't know, however, and anyone thinking of pursuing such a course should talk to a lawyer in Canada first.
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