Idea that U.S. is safe country for refugees is an ‘increasingly obvious fiction’ in Trump era, lawyers tell Toronto court

Idea that U.S. is safe country for refugees is an ‘increasingly obvious fiction’ in Trump era, lawyers tell Toronto court
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Lawyers for a group challenging a refugee agreement between Canada and the United States called the idea that the U.S is a safe country for refugees an “increasingly obvious fiction” Monday, the first day of a landmark hearing that could topple a core pillar of Canadian asylum law.

The lawyers, for Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches, are asking the Federal Court of Canada to strike down the Canada/U.S. Safe Third Country Agreement, arguing that the pact violates the Canadian Charter of Rights and Freedoms.

“Every day women, men and children … come knocking at Canada’s door seeking safe haven,” Andrew Brouwer one of the lawyers for the applicants told the court. And every day “we push them back to the U.S.”

The advocacy groups, along with three individual applicants, first sued the federal government in 2017. The hearing this week is scheduled for five days in downtown Toronto, before Justice Ann Marie McDonald of the federal court.

The Safe Third Country Agreement, signed in 2005, allows Canada to turn back most asylum seekers attempting to enter the country at a land border crossing with the United States.

The deal was designed to prevent so-called “asylum shopping” and it relies on the idea that the U.S. and Canada have roughly equivalent and legally humane systems for adjudicating asylum claims. Stripped of the legalese and procedural wrangling, the main argument the applicants are bringing is that, if that was ever true, it certainly isn’t today.

The situation in the United States has gone from “bad to worse to far worse,” Brouwer told the court. “The United States is not presently a safe country for many classes of refugee.”

The case puts the Liberal government in a quandary. To defend the agreement, government lawyers need to stand up, in court, for the U.S. asylum system under Donald Trump. For a party and a prime minister whose progressive bona fides have taken a battering over the past year that’s a nightmare scenario.

Conditions have worsened substantially for refugee claimants in the U.S.

On Monday alone, lawyers for the applicants cited evidence of the mass separation of families at the border, of kids as young as two being placed in detention, of immigration jails with “staggering rates of sexual assault,” and of a U.S. system where more and more asylum claims, especially on the basis of gender and gang violence, are getting rejected out of hand.

“Conditions have worsened substantially for refugee claimants in the U.S.,” Brouwer told the court. “Much of that deterioration took place under President Obama,” he continued. But the “rate and scale of deterioration has increased dramatically” under President Trump.

And yet, for all that, the government does have significant reasons to stand up for the pact. In fact, for several years, the Liberals have actually been lobbying the U.S. to expand the agreement.

As it currently stands the Safe Third Country Agreement only applies at official land border crossings. Most asylum seekers who cross the border anywhere else can still have their claims heard in this country.

Since 2016, that clause has led to a surge in what the government calls “irregular migration.” Thousands of people have walked over the border, most of them at Roxham Road in New York State, and asked for asylum in this country. That push overwhelmed many of the systems Canada has in place for coping with refugee claimants. It also helped contribute to a significant uptick in anti-refugee sentiment in some parts of the country.

Scrapping the agreement altogether, or standing by as it gets struck down in court, could lead to another surge in asylum seekers, just as the government is beginning to show signs of digging out from under the last one.

In court Monday, a team of five government lawyers sat quietly as the applicants laid out their case. Even by the generally dry standards of the Canadian justice system, hearings in federal court tend toward the staid and the procedural. Most of the action happens before court, in long filings and back-and-forth affidavits.

The government is expected to begin laying out its case Tuesday. Though it touches on issues of deep emotion and fundamental justice, the government’s case will likely turn in court on narrow points of law. Already by late Friday, the arguments, couched in references and Latin, barely sounded like arguments at all.

The Safe Third Country Agreement was challenged once before, in 2007, and was initially thrown out by the Federal Court. That decision, however, was overturned by the Court of Appeal, in part because the applicants weren’t representing any single person who they could say had been harmed by the agreement.

This time, that’s different. The applicants have three separate groups of plaintiffs, including a woman from El Salvador who says she was raped by members of MS13 and then fled her country when the same gang began threatening her daughters. Another claimant family, originally from Syria, fled to Canada from the United States in early 2017 because they “heard that the Canadian prime minister continued to welcome refugees,” Brouwer told the court.

There was more drama outside the courthouse, where dozens of demonstrators gathered on a crowded sidewalk waving signs with messages like “Toronto Welcomes Refugees” and “End the STCA.”

Janet Song, who volunteers at an agency that helps asylum-seekers, said many of her clients were inspired to come to Canada by the pro-refugee rhetoric of Justin Trudeau and the Liberal government. “They are under the belief that Canada will protect them,” she said, “and the Safe Third Country Agreement goes totally against that.”

Her colleague, Merina Sebastian, called Monday’s court hearing “a huge thing.”

“The Safe Third Country Agreements runs on this idea that Canada and the U.S. have similar immigration systems, and I don’t think that’s true at all,” she said.

The demonstrators timed their protest for the courthouse lunch break. By 1:20 p.m., most of the the crowd had walked away. On the emptying sidewalk, a young man in a leather jacket with a hand painted sign — “USA is not a safe country” — put his arm around a young woman from a a refugee aid agency. Nearby, an organizer picked up stray signs and tucked them under one arm.

“The idea of the Safe Third Country Agreement is that you’re returning someone to a country that is safe,” said Song, who was standing on the edge of the crowd, “and that hasn’t really played out in the last few years.”

The hearing continues Tuesday.

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