Canada’s failing refugee system is leaving thousands in limbo

Neglected by the federal government and facing an influx of claimants, the refugee system is leaving thousands in a brutally long holding pattern that’s only growing longer
Maison D’Haiti job fair with the Quebec co. Pelikan interviewing candidates. (Photograph by Roger LeMoyne)
Eugene Mabon at the Maison D’Haiti job fair. (Photograph by Roger Lemoyne)

New York City never proved to be what the songs had promised to Eugene Mabon. The 30-year-old Haitian couldn’t find work. He got kicked out of the first home that took him in and had to live off a friend’s charity. He’d already tried finding a better life in Brazil, but gave up after three years doing factory jobs for a pittance. His journey north to America took him by plane, bus and foot, through jungle, through water. And Statue of Liberty City proved a lousy place to land.

In August, he heard the same thing as thousands of fellow Haitians in the U.S.: Canada was welcoming, more stable, altogether better, and its open door lay across a ditch on the Quebec-New York line. “I believe that once you’ve lived here for a couple years, you become a good man and can live a good life,” he says.

The first few months of that life featured sporadic temp gigs (including at a dollar-store distributor) and a shared studio apartment in Montreal. On a mid-December Tuesday, he donned his baseball cap and heaviest coat to slog through a 20-cm Montreal snowstorm to a job fair where a plastic kayak manufacturer offered dozens of assembly and labour crew positions for up to $14.86 an hour. The north-end community centre Maison d’Haïti was crammed with more than 100 fellow Haitian migrants waiting for hours to fill in applications and hear the job pitch from human-resources officials in French, and the centre director’s clarifications in their native Creole.

For these newcomers, the future is as slippery as their first Canadian snowstorm. Would they find decent work in this new country? Would they be allowed to stay, accepted as refugees from Haiti? When will they get to plead their cases before the Immigration and Refugee Board? And if they fail, what then?

Those migrants looking to Canada’s leaders for some clarity have instead faced a blizzard of messages, varying and often contradictory.

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Justin Trudeau started last year with a tweet that showed his open-armed embrace of refugees—reinforcing Canada’s good reputation for immigrant acceptance and human rights, and sharply contrasting with Donald Trump’s every act and deed. Trump’s election had already started the run for the northern border, but the year brought Canada an unprecedented level of refugee claimants–particularly Haitians, spurred on by further messaging, from the end of Washington’s moratorium on deportations to the expat community’s own false rumours about how generous Canada would be.

Canadian officials have responded by lobbing dire warnings to other would-be asylum seekers in the U.S., spreading its message in Spanish as well, as Washington lifts a similar protected status for more than 200,000 Salvadorans who’ve settled there. All the while—and well before Trump was doing it—Canada was also quietly deporting many Haitians to the most impoverished country in the Americas, where more than one in five residents suffer hunger and chronic malnutrition—563 people were sent back to Haiti in 2017 as of Dec. 20, and another 804 were in the “inventory” to be deported, according to the Canada Border Services Agency.

But as 2017 closed, it was the Liberal government’s inaction that proved the biggest rebuttal of Trudeau’s social-media idealism: that despite protests from many quarters, the system was left incapable of dealing with its massive backlog of refugee claimants. Thousands of asylum seekers may wind up settling here in limbo for years, creating a temporary safe haven that may be just as inviting to other anxious migrants to our south as any #WelcomeToCanada post.

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Canada has for decades offered refugee protection to those who have legitimate claims of fearing persecution back home, if they can find their way here: to international airport terminals, to immigration offices for student visa holders, to border checkpoints for some, or the sneaky but legally accepted and treaty-approved way through fields for others.

But it’s never been like this before, not since the Immigration and Refugee Board (IRB) was launched to adjudicate claims in 1989. Thanks largely to the swell of “irregular” border-crossers, by November, 45,785 people had sought asylum in Canada—eclipsing the 44,695 received in 2001, when pre- and post-9/11 claims from south of the border prompted Canada to strike the Safe Third Country Agreement a year later, in hopes of keeping more migrants Stateside.

Under that accord, migrants are normally turned away if they claim asylum at a Canada-U.S. border crossing, told to seek instead refugee status in the “safe country” they just came from. But they could still cross at other points along the massive undefended border, simply showing up in Canada to make an inland claim. And so they have, but never before in the numbers that in 2017 hopped across Zero Avenue in Surrey, B.C., entered through farm fields or along railway tracks in Emerson, Man., and primarily—by the thousands—across a ditch that separates Roxham Road in Champlain, N.Y., from Chemin Roxham in Saint-Bernard-de-Lacolle, Que.

The steady stream of taxis and cars unloading luggage-toting northbound migrants eventually required permanent RCMP presence to intercept the crossers; then, after the weekly hundreds became thousands in the summer and then slowed down to hundreds again as cooler weather arrived, the Canada Border Services Agency set up winterized trailers as temporary shelters for asylum seekers awaiting initial screening, replacing the summer tents. About 60 claimants still arrive daily at the impromptu crossing that has gradually come to look more and more like an actual border post.

Migrants came from troubled states like Nigeria, Somalia, Turkey and Syria, but the biggest cohort originated, like Mabon, from Haiti. Many were spooked in early summer by the Trump administration’s threats to end the no-deportation promise of the Temporary Protected Status program extended to Haitians after the colossal 2010 earthquake. That was the push factor. The pull was the rumours and social-media buzz that rippled throughout Haiti’s expat community about the northern country that could provide refuge to the desperate, whose Prime Minister published welcoming messages for those fleeing persecution, including a tweet on Jan. 28 to contrast with Trump’s attempted ban on immigrants from some Muslim countries: “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada,” it read, with a picture of Trudeau greeting a young girl from Syria.

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The rumours were, it turned out, massively overblown. “They arrive thinking here it was automatic, that the moment they cross the border they will be accepted,” says Marjorie Villefranche, director of Maison d’Haïti, which has helped settle thousands of asylum seekers this year. Some Haitians were shocked to hear from their legal-aid lawyers that they’d have to appear before a tribunal to make their case for refugee protection, says Stéphane Handfield, an immigration lawyer handling many Haitian cases. And many have had a disastrously wrong impression of what Canada will accept for a refugee claim. “If you fear only the earthquake, the economic crisis in your country, you will not get refugee status for those problems,” he says.

Fear of joblessness and poverty doesn’t cut it under the international legal definition of a refugee, which the IRB applies; you need a well-founded fear of death, torture or persecution in your homeland based on your race, nationality, religion or social or political affiliation. For Haitians, lawyers cite success in bringing cases involving homosexuality or gender-based violence, but those claims aren’t on offer for whole families. That leaves political persecution claims, but those are challenging because political strife five or 10 years ago may not mean danger today under a new government, Handfield says. He’s had to refuse to represent asylum seekers who have no legitimate story to tell the quasi-judicial tribunal.

Candidates waiting for interviews at the Maison D’Haiti job fair. (Photograph by Roger LeMoyne)

Guetty, a 51-year-old former art teacher who didn’t want his surname used, has claimed he agitated against the government on behalf of his students, then was attacked by police when aiding an earthquake-ravaged town before leaving for the United States in the wake of the destruction. He admits he’s trying his luck in applying for refuge in Canada. “If I can’t, I’ll have to go back. If I can’t get papers, what else can I do?”

Mabon put in his claim that in 2007, bandits attacked his father and he fought back, suffering a machete wound on his hand. Fearing further retaliation, he fled their small town. Six years later, he left for Brazil, but says he’s “scared” last decade’s bandits would find him if he was forced to return. Mabon doesn’t know when he and a lawyer will get their date at the IRB. Like thousands of others who crossed into Quebec since the summer, he received a June 1, 2018, hearing date (more recent arrivals have gotten July 1).

By law, new claims are supposed to be heard within 60 days, but necessity long ago tossed that Harper-era rule out the window. With only 30 Montreal-based IRB members, who can each hear two cases a day, June and July are placeholder dates, though that’s not made clear to the claimants. An IRB spokeswoman confirmed they will all get postponement notices by early 2018, then get new dates sometime later when the board is ready to schedule and hear these claims. Mabon says he already got his delay letter, but hasn’t been able to reach his lawyer to make sense of it.

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As of December, the number of pending claims nationally sat at 41,000—more than the total asylum caseload in 2015 and 2016 combined. Border-hopping last year quadrupled Quebec’s 2016 claim totals, and for the first time this century they eclipsed the number of Ontario claims coming in through places like Pearson Airport, Niagara Falls and Windsor (for migrants exempt from safe country rules if they have Canadian relatives). The Ontario district has more than twice as many refugee board members as Quebec’s “eastern” district, and the newly lopsided figures in Montreal have made lawyers sincerely doubt the government’s estimate that new claimants will wait 18 months for hearings. More likely, they worry, it will take years at the board’s current staff levels. Add to that a lengthy wait for appeals if claims aren’t accepted initially and you have many would-be refugees in a brutally long holding pattern.

“The problem is we will have people who will be in Canada for two, three, four or five years, maybe. At the end of all the procedure they will have kids, they will speak French, they will work, pay taxes, then at the end [if] they are not refugees, the Canadian government will tell them to go back to Haiti,” Handfield says.

As the volumes of border-hoppers and traditional asylum seekers began to spike in early 2017, refugee advocates expected the Trudeau government to add to the budget of an IRB not equipped to deal with so many cases. “To the surprise of everybody, that was not the case,” says Mitch Goldberg, past president of the Canadian Association of Refugee Lawyers. Instead, Immigration Minister Ahmed Hussen used Budget 2017 to launch an independent review into board operations, not due until June 2018.

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Statements from Hussen’s office and ministry stress sound fiscal management and efficiency, which doesn’t give much hope of serious help to ease the hearing backlog. The board itself has tried coping measures like expedited hearings for claimants from certain countries whose claims are more simple and straightforward than Haitians’, and briefly assigning a small team of non-Quebec tribunal members to that province’s mountain of files, but the IRB admits its resources and needs are mismatched.

IRB support staff also complain of extreme stress and tears, having to schedule hundreds of meetings at once. Their union’s Quebec division made a direct appeal to Trudeau’s office. “For the government to say they don’t want to cost taxpayers money—if it’s not the IRB, it’s going to be something else,” Canada Employment and Immigration Union vice-president Fabienne Jean-François says. “Because they will be here, they will be living in Canada.”

Social service and community agencies have taken the lead on finding subsidized homes for claimants, lately sending them to the South Shore suburb of Sainte-Julie, a one-hour bus ride from downtown Montreal.

And Quebec’s refugee lawyers who take legal aid cases full-time are completely overwhelmed, as there are only 20 to 30 of them. Handfield has begun refusing clients; Stéphanie Valois sighs when asked how many cases she has on the go: maybe up to 300, she replies. “I’m always with someone. When I have appeals I work them at night, at home,” she says.

But there’s also a vicious cycle that the long waits for claimants creates: If Ottawa wants to discourage people without legitimate claims from flocking north—and they seem to—the backlog sends the opposite signal.

“When you have long waiting periods, if you know you can stay for a couple of years, some people who don’t have well-founded refugee claims might figure, well, there’s nothing to lose. If they have to leave, they can at least save up some money,” Goldberg says. And this would look especially appealing to Haitians whose protected status in the United States will end in July 2019, as they learned in November.

The Harper Conservatives understood the deterrent of a faster system. In 2012, they established the 60-day rule as a message to would-be refugees that they’d be removed promptly if their cases were deemed unworthy. (The Tories also enacted limits on claimants’ rights to appeals and health coverage, but those were struck down as unconstitutional.) For a public already uneasy about migrants skirting the border posts (illegal for the rest of us, internationally allowed for asylum seekers) and the hundreds being housed temporarily this summer in a hall under Montreal’s Olympic Stadium, keeping people in limbo for too long will harden feelings toward the newcomers, says Conservative immigration critic Michelle Rempel. “If we’re not getting the process right, we have a populist anti-immigrant sentiment that arises very quickly,” she says.

Rempel’s emphasis on constraining the supply of newcomers, for instance by declaring the Roxham Road crossing an official border or negotiating more limits in the safe country agreement, has gotten little uptake from the Liberals.

But the Trudeau government did begin taking a tougher tone on refugee claimants in the latter part of 2017, as the Haitian surge saw Montreal’s refugee settlement agency take in more clients in August than it did in the previous year. Trudeau stood by his January “#WelcomeToCanada” tweet as the border-hopping numbers grew, but perhaps he wished Twitter’s new 280-character limit had been around back then, so he could have added some nuance.

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That nuance came with a stream of promotional messages explaining more starkly how Canada’s refugee process accepts or rejects people—in Haitian Creole and Spanish, targeted at the tens of thousands of Salvadorans and Haitians whose protected status in the U.S. will likely be lifted in early 2018. Hussen dispatched Creole- and Spanish-speaking Liberal MPs to Miami, New York and Los Angeles to spread the messages, along with diplomats. The El Salvador citizens enjoying temporary protected status in the U.S. are four times as numerous as the Haitians, and the Trump administration announced in January that they, too, will lose their status in September 2019. Canadian officials have been trying to quash rumours and hopes like those that inspired Haitians to come north.

In some cases, they’ve laid the message on thick. In a November op-ed in the Le Floridian, a Haitian community newspaper, Canada’s Miami consul general Susan Harper wrote that not only did Canada offer no guarantees, but one northbound migrant died in early 2017 and two others lost fingers to frostbite. Those tragedies both happened by the Manitoba border, where claimants are for some reason told to trudge kilometres through brush or fields, compared to the easy daylight path in Quebec.

Another grim but misleading fact the government has sold is that only 10 per cent of Haitian border-crossers are winning their cases. This number appeared in early figures the IRB released in November, but it rose to 17 per cent if you only looked at cases that made it to hearings; plus, it only covered a few hundred of the more than 6,000 Haitian cases before the board. Even the IRB urged against drawing conclusions based on its small number of finalized cases. Hussen’s office did not reply to a request for comment.

These early numbers, however, not only predict the dimmed hopes for Haitian asylum seekers, compared to African or Middle East claimants with much higher approval rates as refugees. It also shows that dozens of Haitian cases have been closed as “abandoned” or “withdrawn”—in many cases, lawyers say, because claimants are confused after changing addresses, or lack contact with a lawyer and miss hearing dates or document deadlines. Handfield says he’s heard it often about claimants, from board members and colleagues: “They were perdu, lost in that process.”

Even if the IRB’s stats are preliminary, Montreal’s Haitian community activists expect the majority of Haitian claimants will lose their cases because they can’t meet the bar for persecution claims. In 2015, after Ottawa scrapped its deportation moratorium, Montrealers took to the streets to plead for amnesty or compassion for the 3,200 Haitians who had come after the earthquake and feared dire struggle at home. The Trudeau Liberals put in another temporary hold that let them make applications for residency based on humanitarian and compassionate grounds, and the vast majority of those bids were granted by the bureaucracy.

Villefranche is on call if the current group of migrants need help. “Here in the community, we are ready to fight, ready to argue, and probably the thing we are going to ask is to find a way to skip that asylum process. Because most of the people, they will fail,” she says. A return to Haiti is to joblessness and starvation, Villefranche says. “It’s like sending people to die.”

Claisiane Delanet, who is nine months pregnant helps her 3-year-old son Davi zipper up his coat as she picks him up from daycare in Montreal. The family is originally from Haiti and sought asylum in Brazil. After being robbed at gunpoint in Brazil they walked and took buses to Canada over a span of four months. (Chris Donovan)

The humanitarian grounds application may prove elusive to the round of Haitians who face deportation as claims are heard and rejected in 2018, 2019 and beyond. Except in cases where there are children, claimants must wait 12 months to make the applications, which consider how established the person has become in Canada; nothing prevents deportation during those 12 months. Unless there’s a significant policy shift by the Liberals, this will not be a viable option for many claimants, says Janet Dench of the Canadian Council for Refugees. And a government that intends to show a tough process to potential migrants hardly wants to provide another clear path to legal status in Canada.

One challenging test case is Wesner, a Haitian who left Miami this summer with his wife and two kids, one U.S.-born. They unwittingly went to the official Lacolle border crossing first and were turned away before following other Haitians at nearby Saint-Bernard-de-Lacolle. That wrong step meant Wesner’s family had already been rejected by Immigration Canada under the safe country rules, so they were ineligible when they slipped in the side way and declared asylum. He’s applied for something called a pre-removal risk assessment in hopes of averting his family’s deportation, and it’s unclear to him where his American-born child would be removed to: Haiti? “We heard on the [radio] waves that it was a terre d’accueil [a welcoming land],” Wesner says, shaking his head. “We didn’t want to go back to Haiti.”

While the number of Haitian migrants slowed after the summer, it’s unclear how much credit is owed to federal officials’ warnings. Many claimants also wanted to settle in before their kids’ school year started. With the U.S. moratorium still in place for Haitians until July 2019, Villefranche and others expect that if there are more coming, they’ll wait until the summer.

Frantz André, a Haitian-Canadian activist in Montreal, acknowledges that no option seems particularly rosy for the men, women and children he’s trying to help.

“There’s a road with only one lane on it and you see a train or a big truck coming your way. On the right there’s a cliff and on the left it’s a river. You can’t stay on the road. To the right you’re sure to die, to the left there’s the river. So what do you decide to do?” he asks. “Canada is the river, the truck is the U.S., the other side, the cliff, is Haiti. You don’t want to go back, so you jump in the river, hoping you will learn to swim, that you’ll learn to swim well enough to be able to get to shore.”

This analogy is one of hope. However, the Good River Canada might prove a long, winding current that delivers many Haitians right over that same cliff they fear.

—With files from Verity Stevenson