Why Canada's status quo at the border can't last

With asylum-seekers risking everything to thwart it, how long can Canada’s safe-country deal with the U.S. survive?

Freedom House sits a few blocks away from the border-spanning Ambassador Bridge’s landing in Detroit. It’s a stately, three-storey brick house with transitional shelter beds and offices. On one side of its arched doorway is a wooden wheelchair ramp; on the other, a white post proclaiming “may peace prevail on Earth.” Freedom House launched in the mid 1980s to help the Detroit-Windsor Refugee Coalition bring across droves of Salvadorans fleeing civil war. The agency continued for two decades to help get hundreds of refugees safely across the Detroit River to Canada, before the safe third country pact frayed that link, forcing most asylum-seekers to stick with the system on the side of the border where they first landed. Migrants seeking to stay in America became Freedom House’s dominant business. Lately, however, Canada is back on clients’ minds.

In the days after Donald Trump’s first executive orders on immigration and travel, queries started flooding in about how to become refugees in Canada. Africans, Central Americans and Middle Easterners all wanted to know. “The staff clerical time to answer phones and handle walk-ins was so significant that we did move everything to the website,” executive director Deborah Drennan says. That webpage everyone now gets funnelled to features a questionnaire that explains, in four languages, why most people wouldn’t qualify for hearings by Canadian authorities in Windsor, Ont.

The Detroit suburb of Dearborn boasts one of the nation’s largest Arab-American communities; in good traffic, would-be refugees there are a 20-minute drive from Canada. But these days, their only reliable way in is a 12-hour drive through four states to a ditch-ended gravel road in upstate New York, where some warning signs and, often, a team of Mounties wait ready to detain newcomers and deliver them to immigration processing at Lacolle, Que. Drennan isn’t sure how many people who’ve asked Freedom House wind up taking this option, though anecdotal reports of such journeys abound.

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The border pact workaround is increasingly well-known and well-used, at that ditch in Quebec, through the snowy fields and woods of Emerson, Man., and through Peace Arch State Park opposite suburban homes in Surrey, B.C. It’s exposing the remarkable futility of the agreement, which serves to stop people who want to make a 20-minute journey yet can’t do a thing about those who take the long way around. That’s prompted a two-way fight against the status quo to which the Liberal government clings. On one side, advocates want to let refugees simply arrive at the border station on the Ambassador Bridge’s Ontario side—entering for protection through Canada’s front door rather than being forced to sneak around through an open window. On the other, those who preach border safety and order want reforms to shutter the window, or somehow make it less enticing.

Then there’s the risk of how desperate people get if Trump’s America becomes a no-hope zone for refugees: unable to enter this country, some might seek to squeeze or get smuggled north through any means possible (refugee aid agencies in Toronto say dozens have already made this most dangerous choice).

The Trudeau Liberals have publicly shrugged off advice from either side, preferring for now a status quo in which migrants stream past do-not-enter signs and into this country’s asylum process. The government has managed the recent influx—shuffling staff, rushing office trailers to immigration-processing border offices, while local and provincial officials deal with the strain at Winnipeg and Toronto shelters. But the frostbite scare will ease with the onset of spring, when migration typically begins to blossom. And there will surely be more travel bans and migration orders from Trump, meaning the number of border-crossers is almost certain to multiply. Canada’s leaders are tiptoeing a narrow political line for now. They may soon have to pick a side.

In this Thursday, May 23, 2013 photo, cars from Canada line up to cross into the United States, in Blaine, Wash., at Peace Arch State Park. (Elaine Thompson/AP/CP)

In this Thursday, May 23, 2013 photo, cars from Canada line up to cross into the United States, in Blaine, Wash., at Peace Arch State Park. (Elaine Thompson/AP/CP)

THESE SO-CALLED “IRREGULAR” crossings—Canadian and international law does not penalize refugee claimants who hop the border—occurred in smaller numbers before Trump and his rhetoric changed the way some immigrants think about their safety in America. Those rejected by U.S. immigration courts would occasionally cross; so would those who had family or a community in Canada. But as the dozens have become hundreds, the northward stream has swelled further to include those who simply don’t want to give the Trump-era system a chance, with its renewed focus on detention and deportation. When a monitor for the United Nations’ refugee agency recently visited Lacolle and interviewed dozens of border-crossing claimants—mainly Turks, Yemenis and Somalis that day—he found most had temporary American visas and were treating the U.S. as a way station en route to their preferred asylum country, Canada. Jean-Nicolas Beuze found most to be well-dressed and well-equipped. “It was not an improvised, last-minute decision. It was something that had been well thought out; they knew where to go,” says Beuze, the agency’s Canadian representative.

Then there are those who lack any kind of legal status in the U.S., and won’t pursue it here: undocumented or illegal immigrants. The “sanctuary city” status that some Canadian mayors have proclaimed (and others muse about) has no bearing on the border-hoppers awaiting asylum hearings to become legal residents, but will offer services without risk to people living afoul of the legal system, now a proportionally much smaller population in Canada than the 11 million in the U.S. In Vancouver, where Mario Ayala’s Inland Refugee Society is starting 2017 with double the client base it had a year earlier, Ayala says he’s worried about the way some foreign-language press have beamed about Prime Minister Justin Trudeau’s “Canadians will welcome you” tweet from January. Two undocumented Pakistani families who jumped the border the day after Trump’s election started the refugee process and then never came back. “My fear is they may be underground working here too,” Ayala says.

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In Buffalo, one pastor is eager to help with passage to Canada but isn’t sure how. Rev. Justo Gonzalez II first vowed to make his United Church a sanctuary for undocumented immigrants who are hounded by authorities. But after calls from would-be Canadians, other churches and some social organizations north of the border, he wants to foster a multi-state, two-country network of refuge. People are telling him Canada and Trudeau will be much more welcoming, Gonzalez says, “rather than our present administration, which wants to criminalize people and not give them due process, simply take them back to Mexico regardless of where they’re from.”

In other words, help for the Canada-bound is in heavy demand, and the supply of aid stands to grow as well, beyond the pressure points at Emerson, Lacolle and Surrey. There are no fields to walk across at Detroit or Buffalo, and only the occasional tale of asylum-seekers scuttling over the International Railway Bridge to Fort Erie, Ont. (one man lost his legs when a train came through). However they cross, a surge in border-hoppers seems sure to raise the pressure on Ottawa to take the unprecedented and diplomatically risky step of scrapping the agreement and opening its high-traffic ports of entry to asylum-seekers as an alternative to the taxing and dangerous routes they’re taking. Justification for such a provocative move is easy to find. In a recent issue of its lawyers’ report, Harvard Law School’s immigration clinic said Canada should no longer consider the U.S. a “safe country” for refugee claimants. “The substance of President Trump’s recent executive orders,” it said, “highlights this administration’s hostility toward refugees and asylum seekers.”

U.S. President Donald Trump (R) and Canadian Prime Minister Justin Trudeau participate in a joint news conference in the East Room of the White House on February 13, 2017 in Washington, DC. (Alex Wong/Getty Images)

Donald Trump Justin Trudeau participate in a joint news conference in the East Room of the White House on Feb. 13, 2017. (Alex Wong/Getty Images)

THIS WOULD, of course, be just the sort of diplomatic elbow jab at the new White House that Trudeau and his colleagues have worked so assiduously to avoid. It would also be a break with history. The last couple of times more refugee claimants began crossing Canada’s border, Canadian governments both Liberal and Tory chose to toughen rules rather than ease entry for protection-seekers.

The first came in December 2001, months after the 9/11 attacks. The number of refugee declarations made at the Canadian border had more than doubled in two years to about 13,000 in 2000 and 14,000 the following year, far outstripping the number of government-sponsored refugees vetted for admission from global crisis spots, and constituting a third of all Canadian asylum claims, up from a quarter (others are made at airports or by visa holders at urban government offices). “We should be able to deport them and send them back to the United States,” Joe Fontana, the Liberals’ immigration committee chairman at the time, told the National Post. “What the United States wants to do with them is their own problem. It shouldn’t become our problem.” In December 2001, the U.S. agreed to the now well-known Safe Third Country Agreement that Canada sought; in exchange, the Bush administration won support for reforms to border security and Canada’s own admission policies. Before the agreement took effect at the end of 2004, the number of asylum-seekers showing up at border posts remained high, carried in particular by Pakistanis spooked by temporary U.S. rules requiring men from many Muslim countries to register with American authorities. But by 2005, the first full year of the safe country deal, claims at the border were down to 4,000, mostly from people who met the agreement’s still-standing exemption for claimants with close Canadian relatives. The numbers stayed low except for a surge in 2008, according to a Harvard report titled “Bordering on Failure.”

The so-called loophole that permits field crossings was always known, and was flagged by immigration experts and support agencies, and acknowledged by government. “The Department [of Homeland Security] is aware of the potential for increased smuggling and trafficking after the agreement is implemented,” says a 2004 U.S. federal register report on the U.S.-Canada accord. It also noted comments about “the increased risks to life and safety of those seeking to enter either country outside land border ports of entry,” yet settled on no formal plan to monitor those hazards.

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The consequences became all too clear for Seidu Mohammed and Razak Iyal, the two Ghanian asylum-seekers whose overnight walk into Manitoba cost them their fingers to frostbite. Barriers erected by the agreement have also prompted a recent spate of smuggling into Toronto, again leading to severe frostbite. Between December and January, Paul Caulford’s volunteer clinic for refugees in suburban Scarborough treated some four dozen Nigerian mothers and children, all of whom were snuck into Canada in the backs of trucks then abandoned in the dead of night in quiet places, like one of Toronto’s windswept industrial sites. “Sitting in amongst televisions,” Caulford, an MD, says of one smuggled family, “and for warmth they got in the boxes that didn’t have televisions in them.” The mother wrapped her kids in a windbreaker in minus 15° C weather, using her hands to protect their small faces, waiting for somebody, anybody, to pick them up. Days later, they stepped into Caulford’s doctor’s office. “They wanted to know why their hands didn’t work,” he says.

The UN refugee agency has long warned that serious border controls heighten the risk of smuggling, as desperate asylum-seekers do what they can to find protection and hope. Just look at the North African and Syrian refugees—those who can have travelled thousands of kilometres into Greece, while others have taken the deadly smugglers’ route across the Mediterranean and Aegean seas. At some point in Canada’s new wave, smuggling will inevitably kick in, Beuze says. “We have seen that everywhere in the world. And [smugglers] will use the vulnerability of the people to make them pay.”

Minister of Citizenship and Immigration Jason Kenney takes part in a press conference on Parliament Hill in Ottawa on Thursday, June 13, 2013. (Sean Kilpatrick/CP)

Minister of Citizenship and Immigration Jason Kenney takes part in a press conference on Parliament Hill in Ottawa on Thursday, June 13, 2013. (Sean Kilpatrick/CP)

THE LAST TIME an immigration minister faced an onset of smuggling, however, he tried to combat it by making any such journey tougher, riskier and less appealing. It was earlier this decade, and the border-crossers weren’t from sub-Saharan Africa or the Middle East, but central Europe, mostly Roma. After then-immigration minister Jason Kenney reintroduced visa controls, the border-crossings intensified, often at Stanstead, Que., which abuts the Vermont town of Derby Line (this came on the heels of another migrant issue: two ships full of Sri Lankan asylum-seekers arriving off the West Coast). Kenney went to Washington to urge expanding the Safe Third Country Agreement beyond border ports of entry, but the Obama administration wouldn’t bite. What leverage the Liberal government had in the 9/11 border talks, the Harper Conservatives lacked. “To put it bluntly, if people they regard as illegal aliens go to Canada, [Americans] don’t have to worry about them anymore or remove them,” Kenney said in an interview.

Instead, the government thickened Canada’s barriers. Ottawa sped up hearing schedules to deter claimants doomed to fail, and controversially rolled back claimant health benefits. A new law created a category of “irregular arrivals” that could face long detention periods in cases of suspected smuggling or unverified identification, while Kenney made a big announcement in 2012 when authorities detained 85 European-via-Vermont arrivals. And in some spots, authorities installed literal barriers on common Stanstead crossing points. “These migrant networks are sensitive to messaging or perceptions of how easy or hard it is get into a country, or stay in a country, or benefits you will receive in the country,” says Howard Anglin, Kenney’s former chief of staff. When Kenney trumpeted the detention crackdown, he explicitly called it a “strong signal.” “We have one of the highest levels of per-capita immigration in the world,” he now says, “and the only way we can maintain public support for that is through a rules-based system.”

Other Conservatives have echoed Kenney, chiding Trudeau for his welcoming rhetoric and sunny photos of RCMP embracing migrant children. They want a tougher message. “The first line of communication on this is telling people this is not safe, don’t do this,” says Michelle Rempel, Tory immigration critic. Some of the party’s messaging skirts the boundary between fact and farce: MP Tony Clement has declared that the border should be enforced (authorities are actually enforcing the rules they have, short of physically blocking walkers at the line); and various Conservative leadership candidates have branded the asylum-seekers “illegal immigrants” and “false refugees” (the Immigration and Refugee Board determines legitimacy of refugee claims, not politicians).

MORE: A tougher refugee border pact? America said no.

Several of the party’s would-be leaders want Liberals to close the “loophole” in the safe country agreement, as does Kenney—but if he failed with the Obama White House, what hope would there be of getting a deportation-and-ban-happy Trump administration to repatriate from Canada dozens or hundreds of refugee claimants, most of them Muslim? The enforcement challenge alone makes a broader Safe Third Country Agreement improbable. “Once someone is in Canada, there is no practical way of proving they crossed overland from the U.S., just as there is no practical way of enforcing it at airports,” says Audrey Macklin, a University of Toronto immigration law professor. She’s long warned of the border agreement’s folly, and calls it a “cynical ploy” to reduce asylum-seekers. Amid the Liberals’ guarded statements on the border question, Trudeau’s principal secretary Gerald Butts fired this Twitter shot about Conservatives’ calls for toughness: “This won’t age well.”

The more pressing question is whether the Liberals’ stand-pat approach can endure. They note that the spike in border-crossers hasn’t pushed overall numbers of asylum-seekers to historic or unmanageable levels. “If you look at the American domestic asylum system, they’re meeting their international obligations,” Immigration Minister Ahmed Hussen told reporters. “So the Safe Third Country Agreement parameters are in place.” UN representative Beuze backs up that assertion. In February, a U.S. judge granted refugee status to one of Washington-based immigration lawyer Jason Dzubow’s Iraqi Kurdish clients. Dzubow sees no fundamental differences in Trump-era asylum determinations, but has noticed a marked change “in terms of the atmosphere and people’s anxiety.” Trump, he says, could have issued the self-same orders using “different words from his mouth, and it would have been a whole different ball game.” Dzubow has had clients disappear and re-emerge north of the border, before and during Trump’s presidency. Human rights and immigration advocates, meanwhile, argue that some aspects of the new orders undermine the U.S. asylum system, including expanded detention provisions and “expedited removal” rules. The federal NDP joins advocates in demanding a unilateral suspension of the safe country deal. Ottawa could also invoke a section of the pact and make exemptions at border posts in the “public interest,” Macklin says—effectively ending the deal’s northern enforcement without explicitly scrapping it. But there’s no sign yet the Liberals will budge in either direction.

Their high-wire act will soon be tested. Border crossings traditionally rise in the spring, and the next steps from an unpredictable White House could heighten anxiety or tamp it down. Or Trump could realize that the Bush-era agreement on asylum-seekers adds to his country’s refugee numbers and rubbish it himself. And while the Liberals sit on the fence and monitor what’s coming, would-be refugees will keep seeking futures here, finding spots where there’s no fence at all.

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